CASE WESTERN RESERVE UNIVERSITY, Hon. WILLIAM L. HUNGATE, DEAR CONGRESSMAN HUNGATE: From today's newspaper I learned that your Committee has recommended modifications in the proposed Rules of Evidence. Although the newspaper report is not too clear, it seems that proposed Rule 509 (a)(2) (Privilege with respect to Official Information) was eliminated. I had planned to write to you with respect to Rule 509 earlier and may take this opportunity to state my legal objections to part of Rule 509. Apparently the provision of Rule 509(a) (2) sought to codify the "executive privilege" doctrine as it had developed since the case of Kaiser Aluminum & Chemical Corp. v. United States, 141 Ct. Cl. 38, 157 F. Supp. 938 (1958), in which retired Associate Justice Reed, sitting by designation in the Court of Claims, had developed that doctrine. (See Schwartz-Jacoby, Litigation with the Federal Government (Joint Committee on Continuing Legal Education of the ALI-ABA, 1970), pp. 261-265). I am afraid that Rule 509 (a) (2) and the Advisory Committee's Note attached thereto failed to furnish a complete picture of existing law with respect to "executive privilege." In the Kaiser Aluminum case there was a specific qualification of executive privilege when the author of the memorandum "played a part in the operative events." In the words of Mr. Justice Reed: "If the Special Assistant played a part in the operative events, e.g., determination of costs or values, representations to Kaiser or Reynolds or survey of the plants, a different situation might exist." (141 Ct. Cl. at 47, 157 F. Supp. at 944). And the courts have been consistent in disallowing "executive privilege" in line with Mr. Justice Reed's qualification. Thus, the Court of Claims has required production of a summary of facts by a Navy selection board accompanying a submission to the President (Richard A. Weiss v. United States, 180 Ct. Cl. 863 (1967)); interoffice reports and memoranda of the Internal Revenue Service were required to be produced where the issue was the merits of the Government's claim of an erroneous tax refund (United States v. San Antonio Portland Cement Company, 33 F.R.D. 513 (W.D. Texas 1963)); National Labor Relations Board records were ordered disclosed in a case involving the issue whether a hearing required by statute had been accorded (Sperandeo v. Milk Drivers & Dairy Employees U. No. 537, 344 F.2d 381 (10th Cir. 1964)); similarly, inspection of a N.L.R.B. investigatory file was ordered in a proceeding relating to the company's good faith in collective bargaining (Olson Rug Company v. N.L.R.B., 291 F.2d 655 (7th Cir. 1961)); in particular, production was ordered of inter-office memoranda among the "upper echelons' of the Department of Justice in a case where the issue was whether the Department had improperly used grand jury proceedings as a device to obtain evidence for a civil case (United States v. Procter & Gamble Co., 187 F. Supp. 55, 58-61 (D.N.J. 1960)). In fact, the case of Davis v. Braswell Motor Freight Lines, Inc., 363 F.2d 600 (5th Cir. 1966), cited in the Advisory Committee's Note, contains the following footnote 5 (at p. 605): "Appellant [the Regional Director of the N.L.R.B.] admits that its asserted privilege is not absolute and that in some situations 'a litigant's need for data in Government files may be so compelling and the dangers of disclosure so minimal that discovery would be appropriate.' Brief for Appellant, p. 27." Also, it should be noted that the case of Ackerly v. Ley, 420 F.2d 1336 (D.C. Cir. 1969), cited in the Advisory Committee Note, in no way attempted to abolish the qualification contained in Kaiser Aluminum. The other cases cited by the Advisory Committee (Boeing Airplane Co. v. Coggeshall, 280 F.2d 654 (1960), and Freeman v. Seligson, 405 F.2d 1326 (1968)), though permitting the government agency to raise "executive privilege" without being a party, actually resulted in rejecting the privilege and in requiring production in line with the qualification expressed in Kaiser Aluminum. Accordingly, it is my opinion that the Advisory Committee Note in no way supports a view disregarding the qualification in Kaiser Aluminum. It is also my opinion that abolition of the qualification is legally undesirable. Such abolitionand an apparently exclusive reliance on the broad concept of "public interest"in my opinion seems opposite to clear legislative trends. For about 100 years production of government documents in the Court of Claims was only pursuant to the "Call" provision (28 U.S.C. § 2507) under which the head of any department or agency "may refuse to comply with a call when, in his opinion, compliance will be injurious to the public interest." In 1954 (68 Stat. 1247) broad discovery powers were granted by Congress to the Court of Claims in an amendment of 28 U.S.C. § 2507, and it was in the exercise of such discovery powers that the Kaiser Aluminum rule, together with its qualification, was developed. In my opinion Rule 509 (a) (2) of the Proposed Rules of Evidence smacks too much of the "call" provision and would constitute a retrogressive step in the legislative development. Very respectfully yours, SIDNEY B. JACOBY, Hon. WILLIAM L. HUNGATE, UNIVERSITY OF WASHINGTON, House of Representatives of the Congress of the United States, Chairman, Subcommittee on Criminal Justice, Committee on Judiciary, Washington, D.Ć. DEAR REPRESENTATIVE HUNGATE: Thank you for a copy of the Committee Print, June 28, 1973, of the subcommittee's proposed revision of the federal rules of evidence. By letter of May 18, 1973, addressed to you, the Washington State Bar Association Committee on Federal Rules submitted comments on the rules as issued by the Supreme Court. The new draft of the subcommittee does directly or indirectly respond to some of our committee's principal criticisms. However, I would appreciate receiving by return mail eight copies of the committee draft to distribute to the members of our state committee in order to ascertain whether the committee wishes to make any further comments before July 31, 1973. Please bill me for any costs involved. My purely personal opinion (and not the opinion of the committee) is that there is much improvement in your present subcommittee version. Very truly yours, ROBERT MEISENHOLDER, Chairman, Committee on Federal Rules, SIXTH CIRCUIT, MICHIGAN-OHIO-KENTUCKY-TENNESSEE, Hon. WILLIAM L. HUNGATE, Chairman, Subcommittee on Criminal Justice, House of Representatives, Washington, D.C. U.S. COURT OF APPEALS, Port Huron, Mich., July 3, 1973. DEAR CONGRESSMAN HUNGATE: I have before me your letter of June 30 in regard to the proposed Federal Rules of Evidence. I have heretofore written to Senators Hart and Griffin and to Members of Congress, Ford, Harvey, O'Hara and Hutchinson, furnishing them with a memorandum which expressed my objection to and criticism of proposed Rule 803 (18), which has to do with the use of "Learned Treatises," where the authors thereof are not presented as witnesses. May I add to the material I have sent to them the enclosed remarks which I addressed to the Judicial Conference of the U.S. Court of Appeals for the Sixth Circuit at its recent meeting in Louisville, Kentucky. This was at a session of the Conference which had to do with the proposed new rules of evidence. After this presentation, many of the practicing attorneys present, as well as some of the District Judges, expressed their agreement with my observations. I also enclose a copy of the dissenting opinion of Justice Eugene F. Black of the Supreme Court of Michigan in which he discusses the use of medical books. I think it is pertinent to consideration of the proposed rule 803 (18). I have the Committee Print which was enclosed with your letter, and note that no change has been made in the proposed Rule 803 (18) concerning the use of Learned Treatises. May I ask that your Committee give serious consideration to elimination of this Rule? Respectfully yours, Enclosures. CLIFFORD O'SULLIVAN. NOTE: Dissenting opinion of Justice Eugene F. Black in Jones v. Bloom 388 Mich. 98, may be found after his earlier letter of April 4, 1973. Rule 803 (18) reads as follows: "LEARNED TREATISES. To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits." From my reading of this rule, the ways of getting into evidence a writing purporting to be a "Learned Treatise" are: (1) For the attorney offering a witness to ask him whether in arriving at his conclusion he relied, at least in part, upon a book or writing claimed to be a Learned Treatise. The next question would be whether such writing, in the view of the witness, is a "Learned Treatise." What expert will fail to recognize as "learned" a relevant writing that supports him? (2) Upon cross-examination, to ask an opponent's expert whether, in arriving at his conclusion, he took into account an identified book or writing. If he says no, the door is open to the cross-examining counsel to later come up with the identified "Learned Treatise" to impeach his opponent's expert. (3) The establishment of any writing as a Learned Treatise is to be: "by the testimony or admission of the witness or by other expert testimony or by judical notice." I am unclear as to who is to be the final arbiter as to what is or is not a "Learned Treatise." Will this responsibility be that of the District Judge or conceivably, in some situations, will this be left to the jury? Are not our District Judges currently carrying sufficient burdens without having-by reading or otherwise-to resolve such questions? In the contests of this time, "experts" are available to sustain almost any claim concerning medical or other scientific assertions. There is much collision and disagreement between various authors. Ofttimes the conclusions of a particular writer are found invalid upon further study. I dread the prospect of a trial becoming a contest between books, instead of by witnesses subject to cross-examination. The relevant existing rules have been distilled from centuries of judicial weighing. I see no substantial advantage in the proposed rule. Even though Wigmore is relied upon as suggesting this rule, he nevertheless was a firm believer in crossexamination as necessary to expose the truth. He said: "Nevertheless, it [crossexamination] is beyond any doubt the greatest legal engine ever invented for the discovery of truth." The absent author of a book or writing cannot be cross-examined. ADDENDA Permit me to recommend for a more forensic support for my position, and possibly for your reading pleasure, the dissenting opinion of Mr. Justice Eugene F. Black, then of the Michigan Supreme Court, in the case of Jones v. Bloom, 388 Mich. at 120. Justice Black's argument is distilled from his years of experience in the actual trial of cases. He was, indeed, one of Michigan's most able trial lawyers. I know this first hand from the hard blows which he delivered to me in court-none of them, however, below the belt. NOTE: Jones v. Bloom 388 Mich appears following earlier letter from Judge O'Sullivan. THE UNIVERSITY OF IOWA, Hon. WILLIAM L. HUNGATE, Chairman, Subcommittee on Criminal Justice, Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR CONGRESSMAN HUNGATE: Thank you for sending me so promptly the Committee print of the tentative subcommittee draft of House Rule 5463. While I have just begun to scan the other provisions, I have looked closely at your revision of Rules 606(b) (impeachment of jury verdicts) and 611(b) (scope of cross-examination). I find both changes which your Committee has made to be well taken. I would also like to point out that the subcommittee's note following each of these Rules is extremely well drawn and nicely sets forth the proposals sought to be accomplished by your subcommittee when you made these changes. The Federal Bar Journal has requested that I submit an article on the scope of cross-examination problem. I anticipate having this done no later than July 31, 1973. In it I intend to advert to the changes made in Rule 611(b) by your subcommittee. I will forward to you a copy of that article. Sincerely, RONALD L. CARLSON, Associate Dean and Professor of Law. THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, Re Federal Rules of Evidence. DEAR SIR: You and your Committee are to be congratulated! The Federal Rules of Evidence appear to me much improved. The scholarship and dedication with which the Committee applied itself to the task merit the gratitude of the Bench and Bar. We would very much like to comment on the Committee Print. I wonder if 15 copies could be sent to me. I take it that the Advisory Committee Notes will appear in the Federal Rules of Evidence as they are finally enacted. However, I did not see any reference to those Notes on my initial reading. Could you clarify the matter for me? Very truly yours, ALVIN K. HEllerstein. Congressman WILLIAM L. HUNGATE, Congress of the United States, Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR CONGRESSMAN HUNGATE; As Chairman of the New York Committee of Trial lawyers who appeared before your Congressional Committee on the Proposed Rules of Federal Evidence, I have received a copy of the Bill which your Committee has introduced. Our group will be commenting officially on the proposed Bill within the deadline period. In the meantime, I personally would like to compliment you and your Committee not only for having done a fantastic job as Congressman, but also, and to my mind what is more important, an outstanding piece of legal work. If all Congressional Committees have the expertise and ability of your Committee, our country is certainly in safe hands. My only discordant note is that in the comments in one section of the Bill, credits are acknowledged to everyone, including people who used our material to prepare their reports, except the New York Trial Lawyers Committee. This is such a minor thing that it does not diminish one iota our enthusiastic praise for the work you have done. Sincerely, ROBERT L. CLARE, Jr. FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, Hon. WILLIAM L. HUNGATE, DEAR CONGRESSMAN: Thank you for sending me the tentative Subcommittee draft of H.R. 5463. It is always difficult to disagree with something that one approves thoroughly and that is an understatement of the work your Committee and staff has done on the Federal Rules of Evidence. I sincerely hope that the Senate will view this bill as the House obviously does. I am writing this letter from my country home and it will, therefore, not be signed by me personally. I can assure you, however, that any comments which the "Project of a Committee of New York Trial Lawyers" may have will be in your hands on or before July 31st. The same statement applies to the American College of Trial Lawyers which I have been designated to represent. I can only conclude as I started with warm congratulations on what is really in effect a saving of that part of practice and procedure which deals with the admission of evidence at trials in the Federal courts. Sincerely yours, GEORGE A. SPIEGELBERG. THE AMERICAN UNIVERSITY, Washington, D.C., July 10, 1973. DEAR MR. HOFFMAN: Thanks for sending me the letter of June 30th endorsing subcommittee draft of amendments to the Federal Evidence Rules. It did exactly what you indicated it would do and met the deadline date, all as stated by you at our meeting with the Virginia State Bar. You have done a splendid job in amending the court submitted rules to meet the major objections thereto. I did not think it was possible to procure subcommittee approval of such controversial rules in such a short time period. Personally, I think they should become effective as amended. If, after experience therewith, changes are required, they can be effected. I personally congratulate you and your associates for a job well done. It was a pleasure to have appeared with you at Fredericksburg. I hope that our paths may cross again in the near future. My class in Evidence convenes September 1st with about 60 students entered in preregistration. This number may increase slightly. I should like, while instructing them on the new rules as proposed by the court, to point out your proposed amendments thereto. It would aid me in so doing, it I could procure from you a sufficient number of the committee print for distribution to the students along with the court proposed rules. Any assistance you may render will be appreciated. GEORGE D. HORNING, Jr., ENVIRONMENTAL ACTION FOUNDATION, Hon. WILLIAM HUNGATE, Subcommittee on Criminal Justice, House of Representatives, Washington, D.C. Dear Mr. HUNGATE: On behalf of the Environmental Action Foundation, I would like to commend you and the members of the Subcommittee on Criminal Justice for the draft of H.R. 5463 (federal rules of evidence.) After reviewing the hearings on the rules submitted by the Supreme Court, we are pleased that the Subcommittee acted in several instances to substitute its wisdom for that expressed in the proposed rules. Although not directly involved in environmental litigation and not possessing the resources to participate in the Subcommittee's hearings, the Environmental Action Foundation was nonetheless very concerned over the effect which some |