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BOWMAN DAIRY CO. ET AL. v. UNITED STATES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
Argued March 9, 1951.
Decided April 30, 1951.
Before trial on an indictment for violation of 1 of the Sherman Act, defendants obtained under Rule 16 of the Federal Rules of Criminal Procedure an order requiring the Government to produce for inspection all documents or objects obtained from defendants and obtained by seizure or process from others. The Government complied with that order. Defendants also moved, under Rule 17 (c), for an order directing compliance with a subpoena duces tecum requiring the production for inspection of certain documents and objects obtained by the Government by means other than seizure or process and which (a) had been presented to the grand jury, or (b) were to be offered as evidence at the trial, or "(c) are relevant to the allegations or charges contained in said indictment, whether or not they might constitute evidence with respect to the guilt or innocence of any of the defendants." For refusal to comply with this order, respondent, a government attorney who had possession of the subpoenaed materials, was found guilty of contempt. Held:
Upon review of an order of the District Court finding a government attorney guilty of contempt for refusal to comply with a subpoena duces tecum, the Court of Appeals reversed. 185 F.2d 159. This Court granted certiorari. 340 U.S. 919 . Judgment vacated and cause remanded to the District Court, p. 222.
L. Edward Hart, Jr. and Walter J. Cummings, Jr. argued the cause for petitioners. On the brief were Mr. Hart and Mr. Tierney for the Bowman Dairy Co. et al., Herman A. Fischer for the American Processing & Sales Co., Kenneth F. Burgess, Edwin Clark Davis and Mr. Cummings for the Borden Company et al., Isidore Fried for the Capitol Dairy Co. et al., and Thomas B. Gilmore for the Hunting Dairy Co. et al. Louis E. Hart was also of counsel for petitioners.
Deputy Attorney General Ford argued the cause for respondents. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison and J. Roger Wollenberg.
MR. JUSTICE MINTON delivered the opinion of the Court.
Petitioners were indicted for a violation of 1 of the Sherman Act. 1 Before the case was set for trial, each petitioner filed a motion under Rule 16 of the Federal Rules of Criminal Procedure 2 for an order requiring the [341 U.S. 214, 216] United States to produce for inspection all books, papers, documents, or objects obtained from petitioners and obtained by seizure or process from others. An agreed order was entered by the court and the Government fully complied therewith. The validity of this order is not in question.
Petitioners also moved under Rule 17 (c) 3 for an order directing the Government at a time and place to be specified therein to produce for inspection certain other books, papers, documents and objects obtained by the Government by means other than seizure or process. Petitioners filed and served on the Government attorneys a [341 U.S. 214, 217] subpoena duces tecum, the pertinent part of which reads as follows:
Thereafter the Government moved to quash the subpoena and to set aside the order, contending that the access of a defendant in a criminal proceeding to materials in custody of Government attorneys is limited to rights granted by Rule 16 and that the District Court had erred in ordering production of the subpoenaed materials. This motion was denied. Respondent Hotchkiss, one of the Government attorneys to whom the subpoena was addressed, had possession of the materials called for, but refused to produce any of them. After a hearing, the District Court held him in contempt. The Court of Appeals reversed, 185 F.2d 159. We granted certiorari [341 U.S. 214, 218] because of the importance of the scope of Rule 17 (c) in federal practice. 340 U.S. 919 .
During the hearing on petitioners' motions for an order under Rule 17 (c), respondent Hotchkiss, acting for the Government, had offered to produce, and to enter into a stipulation therefor, all documents of evidentiary character, in the custody of the Government obtained other than by seizure or process, i. e., documents other than the work product of the Government, solicited and volunteered narrative statements, and memoranda of interviews. However, this offer did not include documents furnished the Government by voluntary and confidential informants.
The subpoena was broad enough to include any documents and other materials that had been furnished the Government by voluntary informants and which did not "consist of narrative statements of persons or memoranda of interviews." The Government's chief objection to the subpoena, as stated to the court by respondent Hotchkiss, was as follows:
It was intended by the rules to give some measure of discovery. Rule 16 was adopted for that purpose. It [341 U.S. 214, 219] gave discovery as to documents and other materials otherwise beyond the reach of the defendant which, as in the instant case, might be numerous and difficult to identify. The rule was to apply not only to documents and other materials belonging to the defendant, but also to those belonging to others which had been obtained by seizure or process. This was a departure from what had theretofore been allowed in criminal cases. 4
Rule 16 deals with documents and other materials that are in the possession of the Government and provides how they may be made available to the defendant for his information. In the interest of orderly procedure in the handling of books, papers, documents and objects in the custody of the Government accumulated in the course of an investigation and subpoenaed for use before the grand jury and on the trial, it was provided by Rule 16 that the court could order such materials made available to the defendant for inspection and copying or photographing. In that way, the control and possession of the Government is not disturbed. Rule 16 provides the only way the defendant can reach such materials so as to inform himself.
But if such materials or any part of them are not put in evidence by the Government, the defendant may subpoena them under Rule 17 (c) and use them himself. It would be strange indeed if the defendant discovered some evidence by the use of Rule 16 which the Government was not going to introduce and yet could not require its production by Rule 17 (c). There may be documents and other materials in the possession of the Government not subject to Rule 16. No good reason appears to us why they may not be reached by subpoena under Rule 17 (c) as long as they are evidentiary. That is not to say that the materials thus subpoenaed must actually be used in evidence. [341 U.S. 214, 220] It is only required that a good-faith effort be made to obtain evidence. The court may control the use of Rule 17 (c) to that end by its power to rule on motions to quash or modify. 5
It was not intended by Rule 16 to give a limited right of discovery, and then by Rule 17 to give a right of discovery in the broadest terms. Rule 17 provided for the usual subpoena ad testificandum and duces tecum, which may be issued by the clerk, with the provision that the court may direct the materials designated in the subpoena duces tecum to be produced at a specified time and place for inspection by the defendant. Rule 17 (c) was not intended to provide an additional means of discovery. Its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials. United States v. Maryland & Virginia Milk Producers Assn., 9 F.R.D. 509. However, the plain words of the Rule are not to be ignored. They must be given their ordinary meaning to carry out the purpose of establishing a more liberal policy for the production, inspection and use of materials at the trial. [341 U.S. 214, 221] There was no intention to exclude from the reach of process of the defendant any material that had been used before the grand jury or could be used at the trial. In short, any document or other materials, admissible as evidence, obtained by the Government by solicitation or voluntarily from third persons is subject to subpoena. It was material of this character which the Government was unwilling to stipulate to produce or to produce in obedience to the subpoena. Such materials were subject to the subpoena. Where the court concludes that such materials ought to be produced, it should, of course, be solicitous to protect against disclosures of the identity of informants, and the method, manner and circumstances of the Government's acquisition of the materials.
Clause (c), which is the last clause in the subpoena, reads as follows:
The subpoena calls for materials which the Government is bound to produce and for materials it is not bound to produce. The District Court said: "Give us all." The Government replied: "We will give you nothing." Both were wrong. The Government should produce the evidentiary materials called for by the subpoena. It need not produce anything under clause (c).
One should not be held in contempt under a subpoena that is part good and part bad. The burden is on the court to see that the subpoena is good in its entirety and it is not upon the person who faces punishment to cull the good from the bad. [341 U.S. 214, 222]
Accordingly, the judgment of the Court of Appeals is vacated and the cause remanded to the District Court for further proceedings in conformity with this opinion.
MR. JUSTICE CLARK took no part in the consideration or decision of this case.
[ Footnote 2 ] "RULE 16. DISCOVERY AND INSPECTION.
[ Footnote 3 ] "RULE 17. SUBPOENA.
[ Footnote 4 ] See Advisory Committee's Note to Rule 16, 18 U.S.C., p. 1969.
[ Footnote 5 ] "We also find in the same rule, under (c), a provision for the production of documentary evidence or objects - the familiar subpoena duces tecum - and if the person upon whom the subpoena is served thinks it is broad or unreasonable or oppressive he may apply to the court to quash the subpoena. Furthermore, while normally under a subpoena the books and other things called for would merely be brought into court at the time of the trial, let us say immediately before they are to be offered in evidence, there is a provision in this rule that the court may, in the proper case, direct that they be brought into court in advance of the time that they are offered in evidence, so that they may then be inspected in advance, for the purpose of course of enabling the party to see whether he can use it or whether he wants to use it." Statement of Mr. G. Aaron Youngquist, Member of Advisory Committee, Federal Rules of Criminal Procedure, Proceedings of the Institute on Federal Rules of Criminal Procedure (New York University School of Law, Institute Proceedings, Vol. VI, 1946), pp. 167-168. [341 U.S. 214, 223]