527 F. Supp. 676 (1981)

WILLIAM P. TAVOULAREAS, ET AL., PLAINTIFFS,

V.

PHILIP PIRO, DEFENDANT.

WILLIAM P. TAVOULAREAS, ET AL., PLAINTIFFS,

V.

THE WASHINGTON POST Co., ET AL., DEFENDANTS

Civ. A. Nos. 80-2387, 80-3032.

United States District Court, District of Columbia

November 13, 1981

In libel action, Clerk of the United States House of Representatives objected to questions counsel for plaintiffs sought to propound to several congressional staff members being deposed. The District [677] Court, Gasch, J., held that: (1) congressional staff deponents must answer questions pertaining to information voluntarily given to staff, but if information was provided in response to congressional telephone call or letter, interview prearranged by congressional staff member, congressional promise of confidentiality, or subpoena, information would have been "acquired" pursuant to Congress' investigatory power and questions need not be answered, however, questions seeking information about contacts or communications initiated by noncongressional sources, including questions about any discussions that ensued between source and congressional staff member, should be answered; (2) congressional deponents must answer questions pertaining to dissemination of information outside of Congress, including dissemination of information, or arrangement to disseminate information, to any reporter or to any executive agency, but deponents need not answer questions dealing with interchange of documents or information among various congressional committees or staff; and (3) congressional deponents need not answer questions relating to subject matter of any investigation being conducted by any congressional committee if they impinged on legislative process in manner inconsistent with dictates of speech or debate privilege.

Order accordingly.

1. United States

12

Insofar as newspaper reporters or other citizens voluntarily and without solicitation provided information to Congressional staff members regarding matters in dispute in libel action, congressional staff members were not privileged by speech or debate clause to refuse to answer deposition questions concerning nature and content of the voluntary communications or the purpose or intent behind them. U.S.C.A.Const. Art. 1, § 6, cl. 1.

If privilege applies to communication, its protections are absolute and bar any kind of compelled disclosure, regardless of status of any particular third-party communicant.

Active acquisition of information by congressional staff, whether formally or informally, is protected by speech or debate clause. U.S.C.A.Const. Art. 1, § 6, cl. 1.

The finite limits of speech or debate clause's shield, with regard to information-gathering function of Congress, is point at which congressional staff ceases to be active catalyst that induces provision of particular information to Congress and becomes, instead, passive recipient of information provided by outside source at source's own election. U.S.C.A.Const.Art. 1, § 6, cl. 1.

5. United States 12

Absent some active intervention by congressional staff member inducing provision of information in some manner, unilateral act of providing Congress with data, however useful to Congress, does not constitute "acquisition" of information by Congress or its staff within rule that active acquisition of information by congressional staff is protected by speech or debate clause. U.S.C.A.Const.Art. 1, § 6, cl. 1.

See publication Words and Phrases for other judicial constructions and definitions.

In libel action, congressional staff deponents must answer questions pertaining to information voluntarily given to staff, but if information was provided in response to congressional telephone call or letter, interview prearranged by congressional staff member, congressional promise of confidentiality, or subpoena, information would have been "acquired" pursuant to Congress' investigatory power and questions need not be answered, however, questions seeking information about contacts or communications initiated by noncongressional sources, [678] including questions about any discussions that ensured between source and congressional staff member, should be answered. U.S.C.A.Const. Art. 1, § 6, cl. 1.

Disseminating of information outside of Congress is beyond legitimate legislative sphere and therefore outside protections of speech or debate clause. U.S.C.A.Const.Art. 1, § 6, cl. 1.

8. United States 12

Congressional deponents must answer questions pertaining to dissemination of information outside of Congress, including dissemination of information, or arrangement to disseminate information, to any reporter or to any executive agency, but deponents need not answer questions dealing with interchange of documents

or information among various congressional committees or staff. U.S.C.A.Const. Art. 1, § 6, cl. 1.

In libel action, congressional deponent must identify any documents disseminated outside of Congress, because mere identification of documents does not implicate any legislative function, but they need not answer questions seeking to elicit information regarding preparation of any congressional document, including any questions about bases for conclusions reached in the documents, the evidence relied upon or otherwise used to prepare the documents, or sources who provided evidence relied upon or otherwise used in the documents. U.S.C.A.Const. Art. 1, § 6, cl. 1.

In libel action, court would sustain congressional deponents' objections to questions regarding structures of various house committees as such questions appeared to probe activities that could fairly be characterized as within regular course of legislative process. U.S.C.A.Const.Art. 1, § 6, cl. 1.

In libel action, congressional deponents need not answer questions relating to subject matter of any investigation being conducted by any congressional committee if they impinged on legislative process in manner inconsistent with dictates of speech or debate privilege. U.S.C.A.Const.Art. 1, § 6, cl. 1.

John J. Walsh and Jerry Birenz, New York City and Joseph A. Artabane, Washington, D.C., for plaintiffs.

David E. Kendall and Robert C. Post, Washington, D.C., for defendant Washington Post.

Stanley M. Brand and Steven R. Ross, Gen. Counsel and Asst. Counsel, respectively, to the Clerk, U.S. House of Representatives, Washington, D.C., for witness.

MEMORANDUM-ORDER

GASCH, District Judge.

The matter currently before the Court concerns certain objections interposed by counsel for the Clerk of the United States House of Representatives to questions counsel for plaintiffs seeks to propound to several congressional staff members being deposed in this action (the "congressional deponents"). In previous memoranda and orders, this Court has granted the congressional deponents' motion to intervene on a limited basis, denied their motion to quash the subpoena mandating attendance at the depositions in issue, and sought to provide guidance as to the scope of inquiry permissible at the depositions of the congressional staff members. Despite this Court's effort in its September 10, 1981 memorandum to establish guidelines for questioning congressional deponents, counsel for the interested parties have been unable to reach any kind of workable consensus as to the application of those guidelines to specific questions. Consequently, the Court is once again required to

settle a discovery-related dispute. In so doing, the Court will not attempt to rule upon the propriety of each of the specific questions reflected in the transcript of the deposition of House counsel, David R. Schooler. Rather, the Court [679] will state more generally its conclusions as to the propriety of certain categories of questions, and will order the congressional deponents to answer on the basis of these conclusions.

DISCUSSION

Counsel for the House object to any questions propounded by counsel for plaintiffs other than those falling within three narrowly defined categories of inquiry: (1) dissemination of information by the congressional deponent himself to sources outside Congress; (2) solicitations for dissemination of information outside of Congress by Washington Post reporters named in this litigation; and (3) communications by Washington Post reporters, or other noncongressional sources concerned with the subject matter of this litigation, regarding the reporter's or source's motivation or intent in providing relevant information to the congressional staff. The Court, however, is of the opinion that the congressional deponents' attempt to confine plaintiffs to these limited areas of inquiry is unjustified under the applicable caselaw. Although some of congressional deponents' objections have merit, the Court finds other of the assertions of privilege too broad to sustain. Those objections falling within this latter class must be overruled because they would improperly preclude congressional staff testimony concerning activities or communications that fall outside the relatively broad contours of the speech or debate clause, United States Const., Art. I, § 6, cl. 1; cf. Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501, 95 S.Ct. 1813, 1820, 44 L.Ed.2d 324 (1975) (noting that the Court has read the clause "broadly to effectuate its purposes"). As most of the relevant issues have been discussed in this Court's September 10th memorandum, the Court is not inclined to engage in an extended discussion of the pertinent caselaw. Rather, to expedite resolution of this matter so that the depositions may be resumed as expeditiously as possible, the Court will discuss and rule upon, in sequence, the categories of questions that are in contention among the interested parties.

(1) Communications between Washington Post reporters and congressional staff

[1, 2] Congressional deponents object to answering any questions regarding the providing of information by Washington Post reporters, or anyone else for that matter, to congressional staff members. In effect, these objections seek to insulate from inquiry any contact between Washington Post reporters and congressional staff other than contacts to disseminate, or to solicit dissemination of, information from the House staff. The Court, however, cannot sustain these objections to the extent that they would preclude testimony by congressional deponents concerning voluntary, unsolicited contacts by Washington Post reporters, particularly Patrick Tyler, to impart information to congressional staff. Insofar as Washington

Post reporters, or others,1 were voluntary, unsolicited sources of information regarding the matters in dispute in this libel action, the Court concludes that the congressional deponents are not privileged by the speech or debate clause to refuse to answer questions concerning the nature and content of these voluntary communications or the purpose or intent behind them.

[3] None of the precedent cited by congressional deponents directly confronts the particular issue before this Court: whether unsolicited contacts by noncongressional sources with congressional staff for the purpose of providing information to the staff, and absent any congressional assurance of confidentiality, are privileged from disclosure by the speech or debate clause. Nei-[680]ther Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975), nor Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972), discusses this precise issue. Nor does any decision by the United States Court of Appeals for the District of Columbia, including the McSurely decision, discuss this issue. See McSurely v. McClellan, 521 F.2d 1024 (D.C.Cir.1975), aff'd by an equally divided court, 553 F.2d 1277 (D.C.Cir.1976) (en banc), cert. dismissed, 438 U.S. 189, 98 S.Ct. 3116, 57 L.Ed.2d 704 (1978). The Court agrees with congressional deponents that these decisions, as well as others, 2 hold (among other rulings) that the acquisition of information by Congress or congressional staff is generally an activity within the protection of the speech or debate clause. See, e.g., Eastland v. United States Servicemen's Fund, 421 U.S. at 504-505, 95 S.Ct. at 1821-1822; McSurely v. McClellan, 553 F.2d at 1286-87 (en banc). As stated by this Circuit in the second McSurely decision,

The acquisition of knowledge through informal sources is a necessary concomitant of legislative conduct and this should be within the ambit of the [speech or debate] privilege so that congressman are able to discharge their constitutional duties properly.

533 F.2d at 1287 (quoting Reinstein & Silverglate, Legislative Privilege and the Separation of Powers, 86 Harv.L.Rev. 1113, 1154 (1973)). In light of numerous judicial pronouncements of this nature, this Court agrees with the contention that the active acquisition of information by congressional staff, whether formally or informally, is an activity within the protective ambit of the speech or debate clause.

[4] The Court, however, disagrees with the congressional deponents' assertions in the present case that the mere passive receipt by congressional staff of information voluntarily proffered by various sources is "an integral part of the deliberative and communicative processes by which [congressmen] participate in committee and House proceedings with respect to the consideration and pas

With regard to the applicability of the speech or debate clause to a particular communication, the Court finds no basis for treating newspaper reporters any differently from any other citizen who voluntarily approaches and discloses information to congressional staff. If the privilege applies to a communication, its protections are absolute and bar any kind of compelled disclosure, regardless of the status of any particular third-party communicant. See Eastland v. United States Servicemen's Fund, 421 Ū.S. 491, 503, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324 (1975). 2 See, eg, United States v. Peoples Temple of the Disciples of Christ, 515 F. Supp. 246, 248-49 (D.D.C. 1981).