Plaintiffs' Memorandum of Law in Opposition to HEW's Motion for Protective Order Opposing the Deposition of Edward Koven

     [||29aad68c-2b93-49b6-9384-5044c9387970||] IN THE 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

BERNICE TERRY, et al., : 

Plaintiffs, 

v. : NO. H 76-373 

METHODIST HOSPITAL OF GARY, INC., 

et al. 

Defendants. 

  

  

RICHARD GORDON HATCHER, et al., 

Plaintiffs, : 

Vv. : NO. H 77-154 

METHODIST HOSPITAL OF GARY, INC., 3 

et al., 3 

Defendants. 

  

Plaintiffs' Memorandum of Law in Opposition 
to HEW's Motion for Protective Order 
Opposing the Deposition of Edward Koven. 
  

Defendant HEW has moved this court for a protective order 

in opposition to plaintiffs' notice of deposition of Edward 

L. Koven, an agent and employee of defendant Joseph Califano. 

Although the December 14, 1977 deposition date has now passed, 

plaintiffs continue to seek to depose Mr. Koven. For the 

reasons set forth below, defendant's motion for protective 

order should be denied. 

Defendant HEW, in its Memorandum of Points and Authorities, 

states that plaintiffs have supplied it with only "general 

guidelines" as to the area of inquiry envisioned by plaintiffs. 

 



  

Normally, no more than general guidelines are required under 

Federal Rules of Civil Procedure 26 (b) (1), which provides: 

Parties may obtain discovery regarding any matter, 
not privileged, which is relevant to the subject 

‘matter involved in the pending action . . . It 
is not ground for objection that the information 
sought will be inadmissible at the trial if the 
information sought appears reasonably calculated 
to lead to the discovery of admissible evidence. 

However, since the defendant is here alleging certain privi- 

leges, plaintiffs will provide the following additional infor- 5 

mation as to the areas they seek to investigate during a 

deposition of Mr. Koven. 

1/ 
As Mr. Koven states in his affidavit, he has been employed 

as an attorney in the Regional Attorneys Office of the Office of 

the General Counsel, Region V, since November, 1968. Since March, 

1973, Mr. Koven has rendered legal advice to the Office for Civil 

Rights (OCR) concerning the Methodist Hospital of Gary, Inc. 

In their complaints against HEW, plaintiffs have alleged, 

inter alia, that HEW has violated its duties to enforce Title VI 
  

of the Civil Rights Act of 1964; that it has failed to enforce 

civil rights assurances submitted by Methodist Hospital; that it 

has failed to enforce civil rights regulations under Title VI and 

the Hill-Burton Act; and that HEW fails to consider civil rights 

criteria in the context of reviews under § 1122 of the Social 

Security Act. 

Plaintiffs contend that Mr. Koven played a key role in def- 

ining policy guidelines “for civil rights regulations and responsi- 

bilities between Methodist Hospital and HEW, from March 1973 to 

the filing of these ptiohe His deposition is therefore directly 

related to the facts underlying plaintiffs' cause of action against 

HEW. 

  

1l/ See Affidavit of Edward Louis Koven, attached to defendant 
HEW's Motion for Protective Order. 

2/ The original complaint was filed as Wesson Vv. Methodist 
  

 



  

Specifically, plaintiffs seek to ascertain: (1) what policy 

guidelines, if any, Mr. Koven received from defendant HEW, during 

the period March, 1973 through December, 1976; (2) what Mr. Koven 

understood those guidelines to mean; (3) how Mr. Koven sought to 

effectuate those guidelines in his drafting of the civil rights 

assurances, signed by Methodist Hospital on July 27, 1973; (4) 

what standards did Mr. Koven apply in reviewing the affirmative 

action plan, submitted by Methodist Hospital; (5) what considera- 

tion did Mr. woven give to Title VII regulations (45 C.F.R. Part 

80, effective July 5, 1973) and § 1122 regulations (42 C.F.R. 

Part 100, effective November 13, 1973); (6) what role, if any, 

Mr. Koven played in the review of Methodist Hospital's 1974 and 

1976 proposals to expand Broadway Methodist Hospital. 

Admittedly, certain of these items involve Mr. Koven's 

thought processes. However, as plaintiffs set forth below, Mr. 

Koven's advisory role between March, 1973 and December, 1976 

does not fall within the immunities of either the attorney- 

cliant privilege or work-product rule. Mr. Koven's duties should 

have been ministerial in nature; that is, he should have been 

solely engaged in implementing national policy guidelines as 

established by the Secretary of HEW. Such a ministerial role 

is not protected by intra-governmental immunity, which attaches 

only to policy formulation -- not to implementation of policy. 

Plaintiffs have a right to determine to what extent Mr. Koven 

engaged in policy formulation not based on established national 

guidelines. If Mr. Koven did formulate policy, plaintiffs con- 

tend that it was a violation of HEW's obligation to establish 

national guidelines and that plaintiffs have a right to discover 

such violation. Intra-governmental immunity cannot be invoked 

  

2/ H{cont'd) 
Hospital of Gary, Inc., No. H76-373, on December 29, 1976. Plain- 
  

tiffs therefore seek to depose Mr. Koven with reference to his 
advisory role to OCR during the period March, 1973 through December, 

1976, 

 



  

to conceal official misconduct. 

Finally, since it is Mr. Koven's legal advice itself 

which plaintiffs seek to establish as evidence of HEW's viola- 

tion, only Mr. Koven can be deposed as to its contents. Mr. 

Koven's thought processes are discoverable in these particular 

circumstances, and defendant HEW's motion for protective order 

must be denied. 

 



  

A. DEPOSING MR. KOVEN WITHIN THE AREA OF INQUIRY 

ENVISIONED BY PLAINTIFFS WOULD NOT VIOLATE THE 

ATTORNEY-CLIENT PRIVILEGE. 

Defendant HEW in its Memorandum of Points and Authorities 

argues that Mr. Koven is bound by the attorney-client 

privilege because: 

The Professional Ethics Committee, 
Federal Bar Association, has recog- 
nized that the attorney-client 
relationship exists where the 
federally employed lawyer, whether 
he is a principal legal officer or 
a member of the legal staff of a 
department, agency, or other legal 
entity of the Government performs 
his professional responsibility 

S/ 

Plaintiffs do not dispute that such an attorney-client 

relationship exists in the present case. The issue is, 

however, how broad a privilege can defendant HEW assert 

on the facts of the present case. According to Community 
  

Sav. & L. Ass'n v. Federal Home Loan Bank Bd., 68 P.R.D. 
  

378 (E.D. Wis. 1975), defendant HEW's definition of the 

attorney-client privilege is too broad in scope, exceeding 

the judicially defined extent of the privilege. 

In Comm. Sav. & L. Ass'n, the defendant Federal Home 
  

Loan Bank Board approved an application by defendant First 

Federal Savings and Loan Association of Wisconsin to 

establish a branch office after the Bank Board had denied 

the application on three previous occasions, based on 

evidences of insufficient need. Plaintiff Community Savings 

and Loan filed suit alleging that the Board's approval of 

the application was (1) arbitrary and capricious and an 

abuse of discretion, (2) failed to consider the anticompetitive 

  

3/ See Defendant HEW's Memorandum of Points and Authorities 
in Support of Motion for Protective order, p.3. 

 



  

effect of the approval, and (3) denied due process for 

failing to include specific findings of fact and a reasoned 

opinion. The plaintiff then filed a request for the 

production of documents, most of which the Board provided. 

However, the Board refused to produce, inter alia, 
  

. . documents, or portions thereof, 
which consisted of recommendations, 
evaluations, analyses, and opinions 
prepared by Board staff members and 
supervisory agénts; the legal opinion 
provided by the office of the general 
COUNSAL <4, wiv 

68 F.R.D. af 381, 

In response to the Board's assertion of attorney-client 

privilege, the court stated: 

The next question involves the opinion 
of the General Counsel. The Board 
asserts that the relation of attorney 
and client exists between an agency or 
department of the United States and its 
staff attorneys. Therefore, the Board 
argues that the opinion of the General 
Counsel is protected from discovery by 
the attorney-client privilege. The 
Board's definition of this privilege is 
too broad in scope. The attorney-client 
privilege does not extend to correspondence 
from an attorney to a client when that 
correspondence contains advice based upon 
public information rather than confidential 
information provided by the client. 
Congoleum Industries, Inc. v. GAF Corporation, 
49 P.R. D.82, 85-86 (E.D. Pa. 1969), aff'd, 
478 F.2d 1398 (3rd cir. 1973).4/ In this case, 
it appears that the information which was sent 
to the office of the General Counsel consisted 
almost entirely of material which was in the 
public record. Therefore, the General Counsel's 
opinion is not protected from discovery by the 
attorney-client privilege. 

  

  

  

68 F.R.D. at 382 (emphasis added). 

The holding in Comm. Sav. & L. Ass'n, supra, clearly 
  

governs the present case. Plaintiffs here seek to depose 

  

4/ Congoleum Industries, Inc. v. GAF Corp., involved a 
  

motion for production of documents in a patent suit. The 
subject documents consisted of technical information and 
advisory opinions compiled by individuals "who do not 
personify the corporate client." The Court went on to 
observe: 

 



  

Mr. Koven as to "legal opinion provided by the office of 

the general counsel" concerning HEW's review and investigation 

of information that was a matter of public record - i.e. 

  

4/ (contd) 

While the documents in group (1) constitute 
correspondence from an attorney to his 
client, plaintiff contends that they do 
not contain legal advice based upon material 
that came from the client. In other words 
plaintiff argues that the advice was given 
on the basis of public information that was 
available, rather than on confidential 
information supplied to the attorney by the 
client in seeking legal advice. The basis 
for the attorney-client privilege is to 
protect communications by the client seeking 
legal assistance and it does not extend to 
opinions of counsel which are unrelated to 
any such communication by the client, 
American Cyanamid Co. v. Hercules Powder Co., 
211 P.Supp. 85 (D.C. Del, 1962); United 
Shoe Machinery Corporation, supra. An 
examination of these documents reveals that 
they do indeed refer to basically public 
information or, at the most, indicate a 
general summary of business information 
obtained from individuals who do not personify 
the corporate client. These documents : 
represent a report of general corporate business 
decisions as opposed to legal advice based upon 
confidential information and for this reason 
are without the asserted privilege. 

  

  

See also United States v. United Shoe Machinery Corporation, 
89 F.Supp. 357, 360 (DD. Mags. 1950): 
  

. «. «. United's general counsel and his clerks 
constitute, for purposes of the privilege, 
attorneys. However, no doubt a high percentage 
of the communications passing to or from them 
fall outside the privilege because they report 
or comment on information coming from persons 
outside the corporation or from public docu- 

ments, . . 

Also United States v. Anderson, 34 F.R.D. 518, 523 
(D. Colo. 1963); Thill Securities Corp. v. New York Stock 
exchange, 57 FP.R.D. 133, 139 (E.D. Wis. 1972). 

    

  

  

 



  

the applications of Methodist Hospital for federal monies 

to fund construction projects and the standards governing 

the review under Title VI and § wes 

Between March, 1973 and the filing of the present 

suits, Mr. Koven's duty was to advise the Office of Civil 

Rights of its obligations under the law. To cloak such 

communications in the veil of attorney-client privilege 

would be detrimental to the public interest and would 

encompass the risks envisioned by the Seventh Circuit 

in Radiant Burners, Inc. v. American Gas Association, 320 
  

P.24 314, 324 (7th Cir. 1963), cert. denied 375 U.S. 929: 
  

Certainly, the privilege would never 
be available to allow a corporation 
to funnel its papers and documents 
into the hands of its lawyers for 
custodial purposes and thereby avoid 
disclosure. 

See also Handgards, Inc. Vv. Johnson & Johnson, 69 F.R.D. 
  

451, 454 (N.D. Cal. 1975): 

Fuller disclosure is particularly 
appropriate in situations where the 
privilege is claimed by in-house 
counsel, who "could be converted into 
a privileged sanctuary for corporate 
records" with relative ease. 

An assertion of attorney-client privilege here is subject 

to no less a risk of abuse when raised by a government 

attorney. Indeed, the assertion of the privilege in this 

context poses an even greater threat to the public interest. 

As the Seventh Circuit in Radiant Burners, Inc., supra, 
  

went on to state: 

In balancing the competing goals 
of the free and unobstructed search 
for the truth with the right and 
absolute necessity for confidential 
disclosure of information by the 
client to its attorney to gain the 
legal advice sought thereby, the courts 
will realize that they are not dealing 
with a blanket privilege. 

  

5/ Mr. Koven admits he is knowledgeable of civil rights 
matters "relating to the Methodist Hospital of Gary, Inc.” 
in his Affidavit, para. 3, p.l. 
  

Forge - Sp 

 



  

B. THE WORK-PRODUCT DOCTRINE DOES NOT PROHIBIT THE 

DEPOSING OF MR. KOVEN 

While plaintiffs acknowledge that the work-product 

doctrine protects counsels' legal strategies and thought 

processes from discovery by an adversary, it has been 

consistently held that statements, documents and reports 

prepared "in the ordinary course of business," and not in 

preparation for trial are outside the scope of the doctrine 

and are discoverable. 

As the court in Thomas Oregan Co. v., Jadranska Slobodna 
  

Piovidba, 54 P.R.D, 367, 371 (N.D., Ill. 1972) held: 
  

« « « « [T]he courts generally have held that 
statements or reports made by parties and their 
employees in the regular course of business are 
not work-product and should be produced for dis- 
covery when so requested by the opposing party. . . 
As this rule of law has not been changed by the 1970 
amendments with the exception of deleting the occa- 
sionally imposed good cause requirement, we conclude 
that any document which was prepared in the ordinary 
course of business and not in anticipation of trial 
or litigation is routinely discoverable without 
any showing of need under Rule 26(b) (1) and is not 
protected by Rule 26(b) (3) notwithstanding that it 
contains mental impressions, conclusions, opinions 
and legal theories. Accord, Peterson v. United 
States, B52 ¥.R.D. 317, 321 (S.D. T1l. 1971). 

See also Zucker V. Sabla, 72 F.R.D. i, 3 (8,D. N.Y. 1975): 
  

It is . . . clear that materials assembled during 
routine investigations by counsel do not receive 
the qualified immunity afforded an attorney's "work 
product" by Rule 26(b) (3). 

Plaintiffs seek to depose Mr. Koven concerning his 

communications with OCR from March, 1973 until the filing of 

the present actions. His advisory role and legal opinions 

are not protected by the work-product rule since they were 

not performed in anticipation of litigation, or, in the 

language of Hickman v. Pavior, 329 U.S. 495, 511 (1947), 
  

 



  

6/ 
"with an eye toward litigation." Mr. Koven's activities 

were performed in the ordinary course of his duties as an 

assistant regional attorney employed by HEW. As the court 

in United States v. Swift & Company, 24 F.R.D. 280, 282 noted: 
  

Statements or reports made in the ordinary 
course of business and not in preparation for 
trial do not embody the lawyer's opinions, 
tactics, or conclusions, and accordingly they 
do not enjoy the privilege afforded the 
attorney's work. 

The court also noted that government agencies are subject 

to the same rule: 

The government enjoys no general right to 
withhold information from an opposing litigant. 
Secrecy must be predicated upon the specific 
claim of some privilege based upon considerations 
peculiar to the operations of government or the 
government must conform to the rules governing 
private parties. 

24 P.R.D. 21 284. 

While plaintiffs recognize that "prudent parties anticipate 

litigation and often begin preparation prior to the time suit 

is formally commenced," as this Court indicated in Galambus v. 
  

consolidated Freightways Corp., 64 F.R.D. 468, 472 (N.D. Ind. 
  

1974) : 

". . . The test should be whether, in light 
of the nature of the document and the factual 
situation in the particular case, the document 
can be fairly said to have been prepared or 
obtained because of the prospect of litigation. 
Conversely, even though litigation is already 
in prospect, there is no work product immunity 
for documents prepared in the regular course of 
business rather than for the purposes of liti- 
gations vw , 

  

6/ See e.dg.,Virginia Electric & Pow. Co. v. Sun Shipbuilding 
& D.D.  CO., 68 F.R.D. 397, 401 (E.D. Va, 1975): 
  

An attorney's 'work product' consists of the 
content . . . of information prepared by the 
attorney (or in some circumstances by his 
agents) in his capacity as an attorney repre- 
senting a client and 'with an eye toward 
litigation’ . « vv 

See also Annot., "Discovery-Attorney's Work Product,” 
  

35 A.1..R. 3d 412, 429-30 (1571). 

wi YO - 

 



  

. . . The advisory committee note on Rule 26 (b) (c) 
stated: 

‘Materials assembled in the ordinary course 
of business or pursuant to public requirements 
unrelated to litigation, or for other non-liti- 
gation purposes are not under the qualified 
immunity provided by this subdivision. '" 

Plaintiffs contend that Mr. Koven's advisory role was clearly 

"pursuant to public requirements unrelated to litigation." 

Agency reports of the government are discoverable, when 

not prepared in anticipation of trial, even though they contain 

opinions and conclusions. See United States v. Illinois Fair 
  

Plan Association, 67 P.R.D. 639, 662 (M.D. Ill, 1975). cConse~ 
  

quently, Mr. Koven's legal advice and other communications to 

OCR do not fall within the immunity of the work-product rule. 

 



  

C. DEPOSING MR. KOVEN WOULD NOT VIOLATE INTRA- 
GOVERNMENTAL IMMUNITY 

Defendant HEW in its Memorandum of Points and Authorities 

states that "the intra-governmental immunity evidentiary pri- 

8/ 
vilege" is also available to Mr. Koven. However, 

(f)or evidentiary purposes . . . Government 
information that is exempt under the Freedom of 
Information Act is not privileged without an 
additional showing that disclosure would be 
contrary to the public interest. 

Pleasant Hill Bank v. United States, 58 F.R.D. 97,100-1 (w.D. Mo. 
  

1973). Beyond a mere allegation of detriment to the public 

interest in the context of the attorney-client berviisaa 

HEW has not shown that deposing Mr. Koven would in fact be in- 

jurious to the public interest. The converse is actually true. 

The public interest lies in knowing whether or not the appro- 

priate legal and civil rights standards were applied by Mr. 

Koven in advising OCR. 

"The privilege which attaches to government documents, 

such as advisory opinions and evaluations, is not absolute." 

  

Community Sav. & L, Ass'n., supra, 68 F.R.D. at 38l; see also 
  

Environmental Protection Agency v, Mink, 410 U.S, 73, 86-7 (1973). 
  

Where the privilege asserted is not absolute, a 
court must see whether "production of the con- 
tested document would be 'injurious to the con- 
sultative functions of government that the privilege 
of non-disclosure protects.'" 

Comm, Sav, & L, Assn,, 68 PF.R.D., at 381. 7t is well established 
  

that the "consultative functions" of government covered by 

governmental immunity involve the process of policy formulation: 

  

8/ See Memorandum, footnote 1, P.2. Also, defendant HEW cites 
United States v. Nixon, 418 U.S. 683, 705 fn. 15 (1974).  T™e 
relevance of footnote 15 is not altogether clear to plaintiffs. 
  

9/ See HEW's Memorandum of Points and Authorities, p.4. 

 



  

(T)he privilege obtains with respect to intra- 
governmental documents reflecting advisory 
opinions, recommendations and deliberations 

comprising part of a process by which govern- 
ment decisions and policy are formulated. 10/ 

  

Carl Zeiss stiftung v. V.E.B, Carl Zeiss, Jena, 40 F.R.D. 318, 
  

324 {(D.D.C. 1966), affirmed 384 F.24 979, cert. denied 389 U.S. 
  

  

952. 

Mr. Koven's responsibility to OCR during the period March, 

1973 to December, 1976 was "the rendering of legal advice . . . 

in civil rights tie es rl Such advisory role carried no 

responsibility for policy formulation in the review and investi- 

gation of applications and proposals by Methodist Hospital. 

It should also be noted that where "the basis of a parti- 

cular suit arises from the alleged misconduct or perversion of 

power by a government official . . . discovery may well be 

proper." Wood v. Breier, 54 ¥#,R.D. 7, 12 (B.D. Wis. 1972). 
  

Defendant HEW was default of its obligations under Title VI 

and § 1122. Mr. Koven's thought processes and legal advice to 

OCR are strong evidence of HEW's "official misconduct". It 

has been observed that: | 

The Congressional policy in favor of broad enforce- 
ment of the civil rights laws supports complete 
discovery when their violation is alleged. Similarly, 
when the case involves colorable claims of official 
misconduct the Courts are reluctant to permit offi- 
cials to withhold relevant material by claiming pri- 
vilege. 

12/ 
Kigov Vv. Mitchell, 67 P.R.D. 1, 12 (8.D. N.Y. 1975). 
  

  

10/ See also Wood v. Breier, 54 F.R.D. 7, 12 (E.D. Wis. 1972); 
Smith v. P,02.C., 403 F.5upp. 1000,-1015 (D.D=2l., 1975), which pro- 
vides: 

The purpose behind the executive privilege against 
disclosure of intra-agency advisory communications 
is the encouragement of frank discussion within 
the government as regards the formulation of policy, 

  

  

  

(Emphasis supplied). 

ll/ See Koven Affidavit, para. 3, p.l. 

12/ A final policy consideration provides that: 

  

It is not appropriate for attorneys who are this 
close to the matter and who, by the nature of 
the adversary system, have a vested interest in 

the outcome to decide whether or not relevant 

material should be privileged . . . . (M)aterial 

- 13 = 

 



  

CONCLUSION 
  

For the foregoing reasons, defendant HEW's Motion for 

a Protective Order must be denied. 

Respectfully submitted, 

ill / 

Ac —p 
, ~, 4 

  

""JACK GREENBERG 
BETH J. LIEP 

BRENT SIMMONS 

10 Columbus Circle 

Suite 2030 
New York, New York 10019 

JULIAN B. ALLEN, JR. 
2009 Broadway 
Gary, Indiana 46407 

Attorneys for Plaintiffs 

  

12/ {Cont'd.) 

which might otherwise be eligible for non 
disclosure because of executive privilege 
must be produced unless the privilege is pro- 
perly claimed by the appropriate agency head. 

Thill Securities Corp, v. New York Stock Exchange, 57 F.R.D. 133, 

138 (E.D. Wis. 1972). See also United States v. Reynolds, 345 
U.S. 1, 7-8 (1954); Center on Corporate Responsibility, Inc. v. 

  

  

  

Shultz, 368 F.Supp. 863, 872 (D.D.C. 1973). Defendant HEW has 
not included an assertion of privilege from Secretary Joseph 
Califano in its Memorandum of Points and Authorities. 

 



  

Certificate of Service   

1 hereby certify that a copy of the foregoing 

Plaintiffs' Memorandum of Law in Opposition to HEW's 
  

Motion For Protective Order Opposing the Deposition 

of Edward Koven 
  

was served by United States mail, postage prepaid, on 

the «C74 day of December + 1977, on counsel for 
  

defendants as follows: 

Rebecca L. Ross, Esq. 

Department of Justice 
10th and Pennsylvania Avenue 
Washington D.C. 

Marvin G. Garvin, Esg. and Edward L. Koven, Esq. 
Regional Attorney and General Attorney 
Department of Health, Education and Welfare 
300 South Wacker Drive, 18th Floor 
Chicago, 1llinoils 

Fred W. Grady, Esq. 
Assistant United States Attorney 
Northern District of Indiana 

Federal Building, 502 State Street 
Hammond, Indiana 46325 

Attorneys for Defendant Secretary of Health, 
Education and Welfare 

Hodges, Davis, Gruenberg, Compton & Sayers 
Bruce E. Sayers, Esq. 

5525 Broadway 
Gary, Indiana 464C1 

Attorneys for Defendant Methodist Hospital 
of Gary, Inc. 

Theodore L. Sendak, Esq. 

Assistant Attorney General of Indiana 
219 State House 

Indianapolis, Indiana 

Attorneys for State Defendants 

 



  

Anthony DeBonis, Jr., Esq. 
Joseph E. Costanza, Esq. 
Murphy, McAtee, Murphy & Costanza 
First National Bank Building 
720 W. Chicago Avenue 
East Chicago, Indiana 46312 

Attorneys for Defendant Kipton Kaplan 

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BPent E. Simmons 
Counsel for Plaintiffs. [||29aad68c-2b93-49b6-9384-5044c9387970||]