Order of Reference to Magistrate; Reports on Reference Concerning Discovery

    n 'irhs

IN THE UNITED STATES DISTRICT COURT 
FOR THE V7ESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

CLEAMTEE GARNER, father and 
next cf kin of EDWARD EUGENE 
GARNER, a deceased rr.rnor.

Plaintiff,
V.
MEMPHIS POLICE DEPARTMENT, 
et al,

NO. C-75-145

ORDER OF REFERENCE TO MAGISTRATE

Pursuant to Local Rules, the discovery dispute 
relative to defendant's objection to production of 
documents in this matter is hereby referred to the United 
States Magistrate, Aaron Brown, Jr., for a hearing, if 
necessary, and a report and recommendation as to disposition, 

This 18th day of November, 1975.

UNITED STATES DISTRICT COURT JUDGE
u

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• .  ̂
t

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

CLEAMTEE GARNER,
Plaintiff,

This lawsuit grew out of a Memphis officer shooting 
a fifteen-year-old black youth with a .38 caliber revolver 
using a "Dum-Dum" bullet. The suit is against the Memphis 
Police Department, the City of Memphis, the Mayor of Memphis, 
the Director of Police of Memphis, and the police officer who 
fired the shot that killed Edward Eugene Garner. The com­
plaint asserts numerous grounds of relief, including 
irresponsibility on the part of the city defendants in select­
ing and training the defendant, Hymon; unreasonable police 
policies concerning use of lethal force to apprehend fleeing 
suspects; and unreasonable choice of weapons and ammunition 
for use by the Memphis Police Department in apprehending 
suspects. The complaint has survived a motion to dismiss 
as to all defendants.

In addition to interrogatories, the plaintiff filed 
seventeen requests for production of documents, to all of 
which the defendants have objected. The plaintiff has now

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filed a motion to compel production of those documents, to­
gether with an appropriate certificate of consultation.

The defendants assert that the documents requested 
in requests numbered 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 14, 
16, and 17 are "privileged." I have had occasion to deal 
with the issue of alleged privilege with regard to police 
matters in three prior cases, Wiley v. Memphis Police 
Department, C-73-8; Ghoston v. Starns, C-73-243; and McGowan 
V. City of Memphis, et al., C-72-326. I am attaching to 
this report copies of those portions of the reports in those 
cases dealing with the issue of privilege of police matters.
In addition, I would call the court's attention to the case 
of Boyd V. Gullett, et al., 64 F.R.D. 169 (D.Md.), holding
that there is no general privilege against discovery of 
police f i l e s . I  therefore conclude that the defendants' 
claim of privilege in the instant case should be rejected.

The defendants also claim that the information re­
quested in the following requests for production of documents 
is irrelevant to this case: 2, 3, 4, 5, 8, 9, 10, 11, 12,
13, 14, 15, 16, and 17. In view of the broad allegations of 
the complaint which has, as I mentioned, survived a motion 
to dismiss, I believe that all of these challenged requests 
are relevant to this litigation or might lead to the dis­
covery of relevant evidence-

The defendants assert that request number 5 is too 
broad and vague. The request asks for "all documents relating

A/The Boyd case deals with and distinguishes Brown 
V. Thompson, 430 F.2d 1214 (5th Cir. 1970), cited by the de­
fendants in this case. The plaintiff also cites Tighe v.
City and Co. of Honolulu, 520 P. (2d) 1345, holding that there 
is no common law privilege for police records.

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to Wyeth Chandler's or J. Hubbard's expressions with respect 
to the use of lethal force in the apprehension of criminal 
suspects or the prevention of crime." I agree that the re­
quest is both vague and too broad, and therefore recommend 
that the court deny the plaintiff's motion as regard to 
request number 5.

In addition to privilege, the defendants assert 
that request number 6 is also too broad. That request asks 
for all documents relating to the selection of the type of 
service revolver and ammunition issued by the Memphis Police 
Department for its officers as of October 3, 1974. i do not 
believe that this request is unreasonably broad.

Request number 7, which asks for all documents re­
lating to the promulgation of regulations on the use of 
lethal force by the City of Memphis Police Department, is 
objected to only as being too broad, I likewise feel that 
this request is reasonable and should be complied with.

Request number 8 asks for all documents "relating 
to any studies conducted by or at the request of the City of 
Memphis Police Department on the effects of various ammuni­
tion used by its officers as of October 3, 1974 on the human 
body." In addition to relevancy, this request is objected 
to as being too broad. I think it reasonable and recommend 
that the court grant plaintiff's-motion in regard to this 
request.

Request number 12 asks for all documents "setting 
out the official policies regarding promotion of police 
officers of the Memphis Police Department." It is also

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objected to as being too broad. I recommend that the court 
grant the plaintiff's motion concerning this request.

Request 13 asks for all documents "relating to the 
training of Memphis Police officers, generally and to the 
training of the officers in the use of lethal and non-lethal 
weapons, specifically." I agree with the defendants that 
this request is unreasonably broad and recommend that the 
court deny plaintiff's motion with regard to it.

Request number 14 asks for all documents relating 
to instances in which lethal force was resorted to by offi­
cers of the Memphis Police Department from January, 1973 to 
October 3, 1974 and asks for official investigation reports, 
citizen complaints, and disciplinary proceedings instituted 
against officers resorting to lethal force. In addition to 
privilege and irrelevancy, this request is likewise attacked 
as being too broad. In the context of this case the docu­
ments requested are highly relevant. I do not believe the 
request is too broad and therefore recommend that the court 
grant the plaintiff's motion with regard to it. The defendants 
did not challenge this request as being burdensome, and in 
any event, may respond under Rule 33(c) of the Federal Rules 
of Civil Procedures.

Request 16 asks for "all rules and regulations
*governing the conduct of police officers of the Memphis Police 

Department as of October 3, 1974." It is challenged as "too 
broad." I recommend that the court grant the plaintiff's 
motion with regard to this request.

In summary, I recommend that the court grant the 
plaintiff's motion and require the defendants to produce the

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documents requested in all of the plaintiff's requests for 
production of documents, except requests 5 and 13, as to 
which I recommend that plaintiff's motion be denied.

In these cases against the Police Department and 
police officials, the court has in the past made extensive 
use of protective orders. I feel that a protective order 
would be appropriate in this case and recommend that the 
court require counsel to undertake to agree on an appropri­
ate protective order and submit an agreed draft to the court. 
If an order cannot be agreed upon, counsel for the respective 
parties should be required to submit proposed drafts.

■fhe plaintiff has also moved for an order requiring 
the defendants to answer certain interrogatories. Interroga­
tory 3(b) to defendant Chandler asks for his particular 
responsibilities and authority with respect to the City of 
Memphis Police Department. He responded that he had the re­
sponsibility to "appoint the director, the interim director 
and general authority over the City of Memphis Police Depart­
ment." The plaintiff claims that he should be required to 
clarify what he means by "general authority." I recommend 
that the defendant Chandler be required to more specifically 
answer this interrogatory as to his "general authority" over 
the City of Memphis Police Department.

Interrogatory 16 to the defendant Hymon asks whether 
he has been involved in other suits charging abuse of his 
authority as a policeman. Interrogatory 17 asks for specifics 
in the event the answer to interrogatory 15 is in the affirm­
ative. It was, but the answer to 17 was not detailed. The

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defendant Hymon should be required to give a more specific 
answer, and supply such information concerning this matter 
as is not only in his possession but in the possession of 
his attorneys as well.

Interrogatories 25 and 25 to Mr - Hymon inquire 
about insurance. Mr. Hymon responded that he did not know 
whether he was insured. I recommend that the defendant 
Hymon be required to more specifically answer these inter­
rogatories. His amended answer should give not only 
information in his possession but that in the possession of 
his attorneys as well.

In interrogatories 17 and 18 to the defendant 
Hubbard he is asked about his familiarity with certain re­
volvers and ammunition issued to Memphis Police officers 
as of October 3, 1975. He gave an answer concerning the 
gun, but not the ammunition. I recommend that defendant 
Hubbard be required to more fully answer interrogatory 18.

Submitted this, the 4th day of March, 1975.

Aaron Brown, Jr.,
United States Magistrate

8S
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V .. •
IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TENNESSEE 
WESTERN DIVISION

CLINTON GHOSTON,
Plaintiff

vs. C-73-243
ALVIN M. STAMS,

Defendant

REPORT ON REFERENCE CONCERNING DISCOVERY 
On September 19, 1973 the plaintiff in this civil 

rights action submitted fifteen interrogatories under Rule 33 
of the Federal Rules of Civil Procedure for the defendant to 
answer. Plaintiff's attorney orally gave defendant's attorney 
an extension of time to answer the interrogatories, but no 
specific conversation was had about filing objections. On 
November 16, 1973 the defendant filed answers to all the 
interrogatories except 14e and 14f. The entire question 14 
is as follows;

14. State whether there has been any investigation by any
individual, agency, or internal unit of the Police Depart­
ment, the City of Memphis, or other governmental entity.

a. State the name of the organization, department, or 
entity which has conducted this investigation.

b. State the name of the individual v/ho interviewed 
you concerning the alleged incident. Give his name, 
his rank, his badge number or any other identification, 
including his address and telephone number.

c. State whether a report has been issued as a result 
of investigation of this incident.

d. State in whose possession this report is at this time.
e. Attach a copy of any such report.
f. State the nature of the findings of these reports, 

point by point.

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any objection a party might have except as to such things as 
privileged matter and attorneys' work product.

The defendant's refusal to supply the report on the 
ground that the defendant does not personally have custody 
or control of it must fail because the defendant's attorney 
admittedly has custody of it. Although interrogatories must 
be directed to a party rather than his representative, the 
party must disclose all facts in his attorney's possession.
See Wright and Miller, Federal Practice and Procedure, volume 
8, section 2177 eind cases cited.

There is not much authority on the question of a privilege 
attaching to internal police investigations. In United States 
V. Mackey, 36 F.R.D. 431 (1965) the district court for the 
District of Columbia did recognize such a privilege for the 
District of Columbia Metropolitan Police Department. But 
that department is an agency of the executive branch of the 
United States Government. The district judge did however 
make the blanket statement that records of law enforcement 
agencies are regarded as confidential and not subject to 
public inspection in the interest of law enforcement and 
for the protection of the public and individuals who might 
be under investigation or might submit information. He does 
not cite authority for this proposition. In Knott v. Perini.
283 F.Supp. 1, District Judge Don J. Young of the Northern 
District of Ohio denied discovery of internal records of 
the Canton, Ohio Police Department on the authority of the 
Mackey case. Judge Young acknowledged that one of the bases

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of the holding in Mackey was the separation of powers in the 
federal government, but he did not read the dase as upholding 
the police internal records privilege solely on that ground.
He noted that the court in Mackey gave other reasons for the 
privilege, presumably the public policy considerations noted 
above. Judge Young did not note any distinction between his 
case and Mackey on the basis that his was civil and Mackey 
was criminal.

In Alexander v. Rizzo, 50 F.R.D. 374, Chief Judge John 
W. Lord, Jr. granted discovery of material relating to internal 
matters and procedures of the Philadelphia Police Department 
in a civil rights case. Judge Lord pointed out that the case 
was civil in nature emd was thus governed by the Federal Rules 
of Civil Procedxare. He allowed discovery without prejudice 
to the right of defendants to apply for a proper protective 
order.

The defendant also relies on a recent case in this court, 
Wiley v. Memphis Police Department, number C-73-8, where Judge 
Wellford allowed the plaintiff to discover only the nature and 
extent of a police internal security investigation. In a 
clarifying order Judge Wellford said this:

For purpose of clarifying the Order filed on August 
16, 1973, with respect to Interrogatories No. 12 and 13 and [sic] ' 
discovery, the subject matter to be discovered is limited 
specifically to the nature and extent of an internal security 
investigation, if there has been any. This Court does not include 
in its Order divulging of the content of the actual statements 
of witnesses nor the reports, recommendations nor conclusions 
of the investigating officers, if any.[emphasis in original]
The Wiley ease is not in point with the present one because in

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Wiley the plaintiff only asked for the nature and extent of 
the investigation and did not ask for a copy of the report.^

There are, to be sure, persuasive public policy arguments 
for not divulging police Internal Affairs reports, but there 
are equally forceful p\iblic policy arguments for divulging 
these reports when they would assist in the full and fair 
disposition of civil rights litigation. I see no reason why 
these two conflicting views cannot be adequately accommodated ' 
by the use of protective orders.

Two other matters should be mentioned. First, the 
plaintiff has sought a copy of the Internal Affairs report 
by an interrogatory under Rule 33 rather than by a request 
for production under Rule 34. But the fact that the plaintiff 
has called his request an interrogatory under Rule 33 rather 
than a request for production under Rule 34 should not be fatal 
to him. See Federal Practice and Procedure, section 2165, page 
495. Second, there has been no serious contention in this case; 
that the report was prepared in anticipation of litigation or 
that it is in any way the work product of the attorney. In fact 
there has been no tender of proof at all as to why the report 
was made. Statements of counsel at the hearing indicate that 
these reports are routinely made by the police Internal Affairs 
Bureau for internal disiplinary purposes.

1. I notice in the Wiley file that the plaintiff has nov/ asked 
for the report, but no motion has yet been filed.

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92



/ /
vs NO. C-73-8
MEMPHIS POLICE DEPARTMENT, 
et al.

Defendants.

/

1

REPORT OH REFERENCE CONCERNING DISCOVERY 
Martha Wiley, as mother and next of kin of Fred Lee Berry, 

deceased, has filed a complaint for the death of Fred Lee Berry who 
was, as the complaint alleges, shot to death by defendants Callahan, 
Roleson, Cox and Richards on January 8, 1972. Mrs. Wiley sued these 
four defendants and the Memphis Police Department; City of Memphis;
Bill Price, Chief of Police of Memphis; Henry Lux, former Chief of 
Police; ^\^eth Chandler, Mayor of Memphis; Henry Loeb, former Mayor or 
Memphis; W. W. Wannamaker and Jule Ray as well as John Doe and others 
similarly situated claiming that these defendants formulated, 
effectuated and maintained an unreasonable firearms policy for the 
police department which proximately resulted in Fred Lee Beriry's death.
A motion to dismiss was filed on behalf of all defendants. Chief Judge 
Bailey Brown, to whom this case was originally assigned, granted the 
motion to dismiss as to the defendants Memphis Police Department and 
the City of Memphis but overruled the motion as to the other defendants.

/

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interroqatories numbers 11, 12 and 13. In interrogatory 
number 11 the plaintiff asks if the Internal Security Bureau of the 
Memphis Police Department made an investigation into the circumstances 
surrounding the death of Fred Lee Berry. Interrogatory number 12 asks 
the defendants to describe the extent of the investigation and give the 
name and other details of each person interviewed in connection with 
the investigation. Interrogatory number 13 asks the defendants to 
identify all written statements, memoranda, transcripts or other notes 
of each interview. These questions are objected to for a number of 
reasons which I shall discuss.

Although it was not specifically made a ground of defendants' 
objections, the first problem with these interrogatories which comes 
to mind is whether or not there remains anyone in the case after the 
dismissal of the police department and the city with authority to r 
respond. Although the information requested would be in the possession 
of the City of Memphis and its police department, I believe the 
defendants Bill Price and Wyeth Chandler, as Chief of Police and 
Mayor, respectively, would clearly have these records sufficiently 
under their control to make the information requested available if 
it is appropriate to do so. The affidavit of Inspector E. C. Swann, 
which I shall discuss below says that the.Xhief of Police has access 
to the files of the Internal Affairs Bureau.

The defendants allege that police officers, by regulation,
are required to make statements to the Internal Affairs Bureau and,
if they refuse, they may be discharged for failure to cooperate. The

*

officers are not warned of their constitutional rights and are advised 
that the statements they make are confidential and for interdepart- 
mental disciplinary purposes only. Likewise, any witness who makes

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a statement is advised that the statement will be kept confidential 
and used only for purposes of discipline. The defendants maintain 
that, since officers who are interviev/ed are not given customary 
constitutional protections, their statements should not be discover­
able, or admissible, or both. They cite authority to the effect that 
such an investigative procedure is legal and that statements obtained 
in such investigations cannot be used in subsequent criminal proceed­
ings. The obvious problem with this argument is that the present case 
is a civil one and does not involve the constitutional protections 
which surround a defendant in a criminal prosecution.

The defendants maintain that public policy compels a privilege 
with regard to Internal Affairs investigations because, if confidentiali' 
ty is breached, the effectiveness of the investigations would be 
hampered. An affidavit of E. C. Swann was submitted setting out the 
procedures in making Internal Affairs investigations. The affidavit 
says that the Internal Affairs files often contain hearsay, gossip and 
other information from which the department hopes to develop leads in 
its investigations and that public disclosure of this trivia would do 
grave injury to those involved. Inspector Swann maintains in his 
affidavit that disclosure of the Internal Affairs files would serious­
ly undermine and impair internal investigations in the police depart­
ment and v/ould deter persons from filing complaints. in addition, 
covinsel for defendants made a reference at oral arguments to an ' 
"executive privilege" but did not elaborate on this with citations to 
authorities or otherv/ise.

The case of United States vs. Mackey, 35 F.R.D. 431 (1955)

does recognize such a privilege, but that case is from the District of
Columbia where the Metropolitan Police Department is an agency ot tne

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executive branch of the United States Government. The district judge 
in the Mackey case does go on to state generally that records of law 
enforcement agencies such as the Washington Metropolitan Police 
Department are regarded as confidential and not subject to public 
inspection. He says that this is in the interest of law enforcement 
for the protection of the public and individuals who might be under 
investigation or might submit information, but does not cite authority 
for this proposition. In Knott vs. Berini, 283 F.Supp.l (N.D. Ohio, 
1968) District Judge Don J. Young denied discovery of internal records 
of the Canton, Ohio Police Department on the authority of the Mackey 
case. Judge Young acknowledged that one of the bases of the opinion 
in the Mackey case was the separation of powers in the federal 
government, but he did not read Mackey as upholding the police 
internal records privilege solely on that ground. He pointed out that 
Mackey gave other reasons for upholding the privilege, presumably 
the general pulDlic policy reasons noted above. Judge Young did not 
see any distinction between his case and the Mackey case on the basis 
that his was a civil trial and Mackey was a criminal trial. '

In Alexander vs. Rizzo, 50 F.R.D. 374 (E.D.Penn.,1970) Chief 
Judge John W. Lord, Jr. granted discovery of material related to 
internal matters and procedures of the Philadelphia Police Department 
in a civil rights case. Judge Lord pointed out that the case was 
civil in nature and thus governed by The Federal Rules of Civil 
Procedure. He however granted the discovery without prejudice to the 
rights of the defendants to apply for proper protective order.

While it is true that there is a strong public policy which 
favors maintaining the complete confidentiality of internal records 
of the police department, it is also true that there is a strong

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public policy which favors a full and fair trial of civil rights 
litigation. I see no reason why these two policies cannot be adequate­
ly ciccomodated by the use of protective orders as provided by The 
Federal Rules of Civil Procedure. In this connection, counsel for ’ 
the plaintiff stated at oral arguments that he has no objection to a 
proper protective order. I do not therefore believe the defendants 
should be allowed to claim a blanket privilege for all Internal 
Affairs investigations on the basis of piiblic policy or "executive 
privilege."

\

\

97



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 
__________ WESTERN DIVISION_____

GUSSIE McGOWAN, Administratrix and 
next of kin of Elton Hayes, a 
deceased minor,____________________

Plaintiff
-vs- CIVIL C-72-326

THE CITY OF MEMPHIS, TENNESSEE,
THE COUNTY OF SHELBY,-^TENNESSEE, 
et al,_____________________________

Defendants.
REPORT ON REFERENCE CONCERNING DISCOVERY

The plaintiff in this case served subpoenas ducus tecum 
on Memphis Police Director Jay Hubbard and Assistant Police Chief 
G. W. Hutchinson to take their depositions and to require them to 
produce essentially all the material in the possession of the 
Memphis Police Department concerning the investigation of the 
death of Elton Hayes for whose wrongful killing this suit is brought. 
The plaintiff’s notice encompassed the investigation made by the 
Internal Affairs Bureau of the Memphis Police Department and 
specifically asked for statements taken by the Internal Affairs 
Bureau of the named defendants and certain other witnesses.

The defendants have filed a motion to quash the subpoenas 
for Hubbard and Hutchinson to the extent that they seek information 
and statements from the Internal Affairs Bureau of the Memphis 
Police Department. The defendants rely on the cases of United 
States V. Mackey, 36 F.R.D. 431 (D.C.,1955) and Knott v. Perini,
283 F. Supp. 1 (N.D.Ohio, 1958), as well as tv;o cases on the 

subject decided in this district, Wiley v. Memphis Police Department 
and others. No. C-73-8, decided by Judge V.’ellford, and Ghoston v. 
Stams, C-73-243, decided by Judge Brown on December 4, 1973.

98



/

in the W i ] ^  case the plaintiffs initially asked for 
information concerning the nature and extent of an internal 
security investigation of the Memphis Police Department. i 
recommended that the defendants be required to respond, and Judge 
Wellford required a response but limited his order to "the nature 
and extent of an internal security investigation," excluding the 
contents of statements of witnesses or reports. Later in that 
case Judge Wellford ordered the production of certain statements, 
but it is not clear whether these statements were taken by the 
Internal Affairs Bureau or by others.

In the Ghoston case the plaintiffs sought discovery of 
the actual investigative reports of the Internal Affairs Bureau 
of the Memphis Police Department. In my report I reviewed the 
scant authorities on the question and recommended that the 

defendant be required to produce the information requested. The 
court, however, required only that the defendant produce the names 
and addresses of the persons who conducted the investigation and 
names and addresses of persons interviewed together with informa­
tion as to whether or not such persons gave statements. The court 
held that the defendant "need not, however, produce to the plaintiff 
or otherwise reveal the contents of any statements made by witnesses ' 
nor the recommendations or conclusions of the investigating officers. 
The court based its conclusion on the _Wiley case, the Mackey case 
and the Knott case.

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J

&

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0 6

/
I have previously reviewed the authorities on this 

question in both the Wiley and the Ghoston cases and see no 
reason to reiterate them herel-^lhe defendants do maintain, in 
addition to their public policy arguments, that it is inappropriate 
for the plaintiff to discover information solely for impeachment 
purposes. However, material for impeachment is usually discover­
able. At Section 2015 of Wright and Miller, Federal Practice and 
Procedure, it is observed that "[djiscovery is commonly allowed 
in which the discovering party seeks information with which to 
impeach v/itnesses for the opposition."

There are some distinguishing factors between the 
present case and the Wiley and Ghoston cases. Here, the defendant 
has given the entire Internal Affairs investigative report to the 
District Attorney's office, which vitiates any argument that the 
Internal Affairs investigation should not be divulged to protect 
the constitutional rights of the persons investigated. Here also, 
we have an affirmative allegation that there appears to be 
substantial conflict between statements given to the Internal 
Affairs Bureau immediately after the incident and subsequent

—^See also Re Story, 159 Ohio St.144, 36 A.L.R.2d 1312; and the 
annotations at 95 L.Ed.425 and 97 L.Ed.736. Tne Story case deals 
with police records, and the L.Ed. articles deal generally with 
the government's privilege not to disclose information.

lot)



statements given by the defendants. In addition, the criminal 
prosecutions of the defendants have terminated with not guilty 
verdicts.

Essentially, the question comes down to whether the
need for the evidence requested in a particular case outweighs
the public policy for the confidentiality of police internal
affairs investigations. In my report in the Ghoston case, I
made the following comment on that point:

"There are, to be sure, persuasive public 
policy arguments for not divulging police 
internal affairs reports, but there are 
equally forceful public policy arguments 
for divulging these reports when they would 
assist in the full and fair disposition of 
civil rights litigation. I see no reason 
why these two conflicting views cannot be 
adequately accomodated by the use of protective 
orders."

Discoursing on the duty of citizens to give testimony. Professor
Wigmore makes these observations:

For more than three centuries it has now been 
recognized as a fundamental maxim that the 
pxiblic (in the word sanctioned by Lord Hard- 
wicke) has a right to eveiy man's evidence.
V?hen we come to examine the various claims 
of exemption, we start with the primary 
assumption that there is a general duty to 
give what testimony one is capable of 
giving and that any exemptions v/hich may 
exist are distinctly exceptional, being so 
many derrogations from a positive general 
rule: ****
It follows, on the one hand, that all privileges 
of exemption from this duty are exceptional, and 
are therefore to be discountenanced. There must 
be good reason, plainly sho\'m, for their 
existence. In the interest of developing 
scientifically the details of the various 
recognized privileges, judges and lawyers 
are apt to forget this exceptional nature.
The presumption against their extension is

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not observed in spirit. The trend of the 
day is to expand them as if they were large 
and fundamental principles, worthy of pursuit 
into the remotest analogies. This attitude 
is an unwholesome one. The investigation of 
truth and the enforcement of testimonial duty 
demand the restriction, not the expansion, 
of these privileges. They should be recognized 
only within the narrowest limits required by 
principle. Evei^ step beyond these limits 
helps to provide, without any real necessity, 
an obstacle to the administration of justice.
[Section 2192, Wigmore, Evidence].
It is my view that the plaintiff has a legitimate need 

for statements taken by the Internal Affairs Bureau of the 
Memphis Police Department concerning the incident which is the 
subject of this lawsuit, and that her need for these statements 
conspicuously outweighs any public policy for withholding the 
statements. I therefore recommend that the defendants be 
required to produce them. I do not, however, %ee any reason 
for the plaintiff to have the entire investigative file, which 
includes opinions and comments of the various investigators.
To the extent that the plaintiff seeks these documents, I 
recommend that her motion be disallowed.

Submitted this the 4th day of April, 1975.

Aaron Brown, Jr., 
United States Magistrate

10^