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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

(No. M.D.L. 428)

In re: IBP Confidential Business Documents Litigation

This matter is before the court on Nicholas Wultich's Charles Chatman's and John M. Fitzgibbons's (deponents') resisted motion to quash filed February 2, 1981. Final briefs were submitted on May 15, 1981.

During 1977 the House Committee on small Business through its SBA Subcommittee chaired by Representative Neal Smith conducted investigations into all aspects of the meant marketing industry. As part of these hearings, which ultimately led to the introduction and passage of legislation, the Subcommittee issued subpoenas for testimony and document production to attorneys representing the Meat Price Investigators Association and Hughes A. Bagley, all of whom are defendants in the Gorman suit.

On December 4, 1980 Nicholas Wultich, a staff investigator for the Committee on Small Business of the United States House of Representatives, Charles Chatman, former Counsel to the Subcommittee on Oversight of the committee on Interstate and Foreign Commerce of the United States House of Representatives; and John M. Fitzgibbons, former Special Counsel to the Small Business Committee were each served with nearly identical subpoenas for deposition. The subpoenas, issued in the above captioned case, called for deponents to appear to testify at a deposition and to bring "All documents relating in any manner to Iowa Beef Processors, Inc, or Hughes A. Bagley."

In their motion deponents seek to have the subpoenas quashed under the Speech or Debate Clause of the United States Constitution Act I § 6cl.1, asserting any knowledge they might have relating to this action was acquired by them during their employment and as part of their legislative duties.

IBP denies the applicability of the Speech or Debate Clause and asserts that deponents' testimony is directly related to the following issues which are at the core of these actions:

(1) Whether Bagley falsely and maliciously defamed IBP in his testimony before the Small Business Committee and in summaries of his testimony and other documents prepared and released to the public by that Committee.

(2) Whether the defendants in the Gorman case defamed and attempted to stir up litigation against IBP through communications with these Committees, and whether the Committees served those objectives by attempting to instigate investigations of and actions against IBP by several federal agencies.

(3) What communications with Bagley, governmental officials, and members of the public did Wultich and Fitzgibbons have in connection with the termination of Bagley's employment by Dubuque Packing Company on the basis of which they determined that IBP had no responsibility for the termination?

Specifically, IBP asserts that the deponents may not personally invoke the Speech or Debate Clause but rather it must be invoked by a Senator or Congressman. This contention is not well taken. It is clear that for the purpose of construing the privilege a Congressman and his aide are to be treated as one, hence things done by the aide are privileged to the extent that they would have been privileged if done personally by the Congressman, Gravel v. United States, 408 U.S. 606, 616 (1971). Here the congressional deponents have followed the procedure set out in Rule 50 [126 Cong. Rec. H 8943-58 and H.R. Rep. No. 96-1116, 95th Cong. 2d Sess. 1979]. Further, the record does not support a finding that the privilege has been waived by the fact that no member of Congress has intervened in this procedure, See United States v. Helstoski, 442 U.S. 477 (1979).

IBP raises more difficult questions as to whether the privilege applies in civil actions in which no Member of Congress is involved and if the acts involved here constitute legislative acts within the privilege. It is the court's view that the first question must be answered affirmatively. It seems clear that the Speech or Debate Clause historically arose to preserve the functional independence of the legislature, see generally Legislative Privilege and The Separation of Powers, 86 Harvard L. Rev. 1113 (1973). In this regard the Supreme Court has repeatedly stated that the "central role" of the Clause is "to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary", Eastland v. United States Servicemen's Fund, 421 U.S. 491, 502 (1955); Doe v. McMillan, 412, U.S. 306, 311 (1973). Since the dangers of intimidation and harassment sought to be eliminated by the privilege are equally present in civil cases and the language of the clause is so broad it is the view of the court that it should be applied here. See United States v. Peoples Temple of The Disciples of Christ, et al., Misc. No. 81-0066 (April 10, 1981); Kaye, Congressional Papers, Judicial Subpoenas and the Constitution, 24 U.C.L.A. L. Rev. 523, 549 n. 124 (1977).

The question then becomes whether under the current state of the law legislative acts are involved here. The term legislative act has been consistently defined as an act generally done in Congress in relation to the business before it, United States v. Brewster, 408 U.S. 501 (1972). On the other hand, inquiry is not prohibited into activities which are causally or incidentally related to legislative affairs but not part of the legislative process itself. 2 Antieau, Modern Constitutional Law § 12:182.

Finally, perhaps the best statements of the test is found in Eastland v. United States Servicemen's Fund, 421 U.S. 491 at 501-504 (1975) where the court stated:

The question to be resolved is whether the actions of the petitioners fall within the "sphere of legitimate legislative activity." . . . In determining whether particular activities other than literal speech or debate fall within the "legitimate legislative sphere," we look to see whether the activities took place "in a session of the House by one of its members in relation to the business before it." . . . More specifically, we must determine whether the activities are

"an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House."

Here it appears that the items set out in paragraph 1 above, including the preparations of any witness who testified before the committee clearly falls within the privilege and consequently no judicial inquiry should be permitted; See Peroff v. Mavel, 421 F.Supp 570 (D.D.C. 1976). In this regard the court feels that while Gravel v. United States, 408 U.S. 606 (1972) may be read as denying protection to preparation for hearing it is distinguishable. First, Gravel involved an investigation of possible criminal acts by third parties. Secondly, the relationship between the investigation and the legislative function of the committee involved were much more attenuated than in this case.

Likewise, the new releases in Hutchinson v. Proxmire, 443 U.S. 111 (1979) were not intricately intertwined with the hearings as were the new releases and summaries of testimony involved here. Neither were they widely distributed, but their use was limited to the hearings themselves.

Finally, no inquiry can be made as to statements made by witnesses to the Committee, information obtained for the hearing or conclusions drawn by the Committee.

On the other hand, the Speech or Debate Clause would not appear to cover instances involving contacts with other Federal agencies such as the Antitrust Division of the Department of Justice, The Packers and Stockyards Administration, the FTC and the SEC seeking to influence these agencies actions regarding IBP; Hutchinson v. Proxmire, 443 U.S. 111 (1979); United States v. Brewster 408 U.S. 501 (1972).

Finally, the court is unable to see how inquiry into the reason for the Bagley termination could be found to be a protected act. The Congressional deponents have made no attempt to show how inquiry into these matters would infringe in any way upon the legislative process.

It is therefore ORDERED Deponents' motion to quash is granted except that they may be deposed upon the following areas:

1. Contacts with other Federal agencies which resulted from the actions of the Gorman defendants.

2. The post hearing investigation into Bagley's termination by Dubuque Packing Company.

September 29, 1981.

JAMES D. HODGES, JR., Magistrate, United States District Court.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

(C.A. No. 516-69)

ALAN MCSURELY, ET AL., PLAINTIFFS,

V.

HERBERT M. MCADAMS II., ET AL., DEFENDANTS.

MEMORANDUM AND ORDER-DECEMBER 4, 1981

This case comes before the court on a motion to compel discovery, pursuant to Fed. R. Civ. P. 37. For the reasons set forth below, the court grants plaintiffs' motion.

In 1964, Kentucky officials, executing warrants issued under a state sedition statute, seized books, documents and papers from plaintiffs' home. The seized materials were held in custody by Thomas B. Ratliff, Commonwealth Attorney for Pike County, and subsequently disseminated by local authorities to the Permanent Subcommittee on Investigation ("the Subcommittee") of the Senate Committee on Government Operations. Plaintiffs brought suit against Ratliff and various Congressional officials, alleging a conspiracy among state and federal officials to violate their rights. under 42 U.S.C. §§ 1981, 1983 and 1985, and under the 1st, 4th, 5th, and 14th Amendments of the Constitution.

In the course of discovery, plaintiffs obtained a June 17, 1967 memorandum "to the file" from LaVern J. Duffy, Assistant Counsel to the Subcommittee. The memorandum says in part:

Julian Singman, attorney, called Duffy in Nashville and said he had received information that some people were stirring up trouble with the local population in Pikeville, Kentucky. Also, the same individuals were involved in racial disorders in Nashville. He gave me the telephone number of Thomas Ratliff in Pikeville that I should call to obtain the details.

Although Mr. Singman did not represent Mr. Ratliff when plaintiffs discovered the Duffy memo in 1967, Mr. Singman was later engaged to defend Mr. Ratliff in plaintiffs' suit against him. Plaintiffs also knew that Mr. Singman has in the past represented the National Independent Coal Operators Association, Inc. (NICOA), an organization headed by Mr. Robert Holcomb. Plaintiffs' deposition of Mr. Holcomb had elicited the information that Mr. Holcomb had attended an August 11, 1967 meeting of Mr. Ratliff and others, where the raid on plaintiffs' home was planned.

Since the "Duffy memorandum" appeared to plaintiffs to portray Mr. Singman as an intermediary between the state and federal defendants in this case, plaintiffs sought to depose Mr. Singman. Plaintiffs' stated purpose for their deposition was to discover further from Mr. Singman what contacts, if any, existed between state and federal defendants.

At his deposition, Mr. Singman refused to answer a number of questions on the grounds of attorney-client privilege. Included

among the questions which Mr. Singman refused to answer were requests for the following information:

(1) The substance or even the general nature of his conversation with Mr. Duffy described in the memorandum;

(2) Whether he had any reason to doubt the accuracy of the Duffy memorandum;

(3) Whether he advised his client that he would speak to Mr. Duffy; or whether he later reported to his client that he had spoken with Mr. Duffy;

(4) Identity of the client on whose behalf he claimed attorneyclient privilege; and specifically whether the client was NICOA or Robert Holcomb;

(5) The date he began representation of the unidentified client; (6) The total fees which he collected from NICOA;

(7) Whether Mr. Ratliff made any contribution toward the payment of fees due Mr. Singman from third parties prior to the time that Mr. Singman began to represent Mr. Ratliff;

(8) Whether he knew of a pre-raid meeting at which Mr. Holcomb was present;

(9) Who first told him about the raid, and the substance of that conversation;

(10) The substance of conversations with Mr. Ratliff in August, September or October 1967 and whether the discussions with Mr. Ratliff related in any way to the McSurelys;

(11) Whether he had a conversation with Mr. Holcomb in which Mr. Singman communicated the fact that the raid took place;

(12) Whether he was ever consulted with respect to problems allegedly being created by VISTA personnel; whether he had ever prepared reports with respect to either VISTA activity or alleged subversive activities in Kentucky; or whether he had ever prepared a report which in any way dealt with the prosecution of the McSurelys;

(13) Whether his files contain copies of telegrams to Congress with respect to getting VISTA out of Kentucky, and if so, whether he participated in the drafting of those telegrams; the subject matter and date of a file entitled "Report from Washington"; and whether his files contain minutes of NICOA meetings.

Mr. Singman concedes that he did not represent Mr. Ratliff, Mr. Duffy or the Subcommittee before or during the period of time to which the questions refer.

The information that Mr. Singman refused to reveal breaks down into five general categories:

(1) Refusal to answer questions about his communication to Mr. Duffy;

(2) Refusal to identify the client on whose behalf he asserted the attorney-client privilege, or to specify when he represented this client;

(3) Refusal to describe his fee arrangements with NICOA and with Mr. Ratliff;

(4) Refusal to answer questions about communications other than the Duffy memo; and

(5) Refusal to answer general questions about the contents of his files.

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