17 Years Later, Marchers Retrace the Bloody Route of History News Clipping

    228 Ala. 362 SOUTHERN REPORTE& 2d SERIES

a strained construction in view of the au- whole entity, or any part thereof, was prop-

thorities cited. The Act also makes refer- erly discoverable.
ence to "occurrence." The occurr€nce
which gives rise to these suits happened writ granted conditionally

over a year prior to'tlte passag" 
"nd "ff""- 

Maddox, J., filed a dissenting opinion in

tive date of Act No. 6?8. Giving the Act u which Torbert, C. J., concumed.

prospective application only, we hold it has

no application to these cases.

6. Mar
w

to cont
tbeless
to exet
under
law.

?. Mar
M;

to dete
discret
Rules r

8. Pret

As

"privilr
the lar
dure, r

s
for
def

9. Prer

T}
,rldhr
adt
attorar
prcper
an att,
pressio
eelf an

s
for
def

10. h,
M,

obtainr
rEDder
offre
ctvtl lr
nile ff
It. Pn

(tr

claime
fears i
forrrat
functic

's
br
it,.

The order of the circuit court denying
appellant's request for declaratory relief is

hereby affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH,
FAULKNER and EMBRY, JJ., concur.

In re ASSURED INYESTORS LIFE
TNSURANQE q0.

,'.,..,i,,Y.

NATIONAL UNION ASSOCIATES,
INC., et al.

Ex parte Jesse C. BISHOP and
\Yayne L. Kerns.

77-322.

Supreme Court of Alabama.

Sept. 15, 1978.

Petitioners, plaintiffs in civil litigation
who had unsuccesrfully sougtrt transcript of
statement made by eertain individual to
district attorney in the cout"se of criminal
investigation, sought writ of mandamus
compelling judggt{ vacate prttcctive order
and permity'rscove$&oncerning document.
The Supreffirt, Jone!, J., held that
cincuit court abueed its discretion by accept-
ing barrc assertions of district attorney that
matcrial sought was privileged, and, be-
cau8e no militsry or ctste tocrets werc in-
volved, the circuit court war requirrcd to
eximine document to determine whetler

'r I <,i^
eri\A' l- r

CI't>

l. Mandamue €o187.4

Contention that documents sought
through discovery were not properly sub.
poenaed pursuant to rule would not be re-
viewed in mandamus proeeeding where

matter was not raised before circuit courL
Rules of Civil Procedure, rule 45(d).

2. Statutcs e226
There exists presumption that cases

construing Federal Rules of Civil Procedurc
are authority for construction of Alabama
Rules of Civil Procedure.

3. Pretrial Procedure F136, 413, 414

To be entitled to protective order, mov-

ant must gfther show good cauae why ob
ject€d to deposition or production of docp-
ments would be unduly butdensome or ex-
pensive, oppnessive, embarrassing or annoy-
ing, or that subject matter sought to be

discovered is privileged. Rules of Civil Pro-
cedure, rule 26.

4. Pretrial Procedure Fll, 13

Rules on deposition and discovery ar.e

to be broadly and liberally construed; how-
ever, right to discovery is not unlimited,
and trial court has broad powers to control
us€ of discovery process to prcvent its abuse

by any party. Rules of Civil Procedure,
rule 26(c).

5. heEial kocedure c=19

BuIe of civil procedure does not sllow
arbitrary limit on discovery, but, rather,
vests trial court with judicial discretion in
disoovery prooess, and question on review of
discovery decision is whether, under all the
circumstances, the trial court has abused

thig discretion; an appellate court m8y not
decide whether it would, in the first in-
stence, have permitted prayed for dis-
oov€qi.. Rules of Civil hocedure, rule 26.



)rop-

,n ln

rSht
sub..

) re-
here
rurt.

ases

lure
lma

lov-
ob-
,cu-

ex-
oy-

be
to-

are
)w-
ed,
;rol
u8e

lEt

ow
€r,
in
of

;he

€d
rot
m-
is-
a.

ASSUIED INIPRS IJFE ii{S. CO. v. NAT. U. ASSOC. Ata. ZN
6. Mandamus e2g 

cltcas'416'362s,.2d228

12. Pretrial procedure e41While mandamus does not normally lie Naked assertion of privilege by execu-fi#lTffiilin'lttrJi';r1;"rut tive is in,urri"i.ii'. *,, nondiscrosu,e
to exerciJ uis,ai,""Jon and to exerrcise it ;lffiTrt1t"ffir:,f;"1-Tr1:?,,#Tx
;lLO."" 

,**r interpretation of "ppli*lf" volves upon court.

7. Mandamus 682 13. Witneesea e>216

. 
Mandamus is proper means of reviev. - 

In deciding to uphold or ovemrle claims

tr":T,:Tt:[*[,L..in]tif,tTll;';HTTffi #:,;rfi :*";',:;::i*i]
Rules of Civil procedir",?ri" 

wv. u,oLvysrJ. mental questions: whether claim falls with-
in 9ne 

of categories of privileges *""*,*
8. Pretrial Procedure e3g in law of evidence, whether 

"r"m r,ri u"""
As used in discovery rule, the term properly invoked, and whether circumstanc-

"privileged" means the ."rn"-",. if';;';; es of ease under consideration are d;;;-the law of evidence. Rules of Ciril p-""_ ate for exercise of claim; underlyiig th;
dure, rule 2(bXl). questions is morc important task oideter_

- See publication Words and phrases mlnlng proper balance that must be struck
f."1. gSu. judicial construcuons anJ between interest of executive b;;;-;;definitions' government in maintaining confidentieritv

9. hetrial Procedure e34 over types of information neces{,ary for pei-
rhe written statcment or.a witness, l-lrul#".r*'H,'ff1 lJ'*llwhether prepared bv him .ra r"t"" J"ii* inrorairtilo';;il L,r*o of regar dio-erEd to the- afor.:aey, or draftcd bt ;il" pute.

attorney and adopted by the .,ritn"rr, i, ,oiproperly considered the "work p"oauJ"'oi 14. pretriat procedure e3gan attorney, for it records the mental im- claims of executive privilege, rike otherpressions and observatjons of ,o;tn".. ti,n- evidentiary p.;;ir;;, must be narrowryself and not those of the attorne)' 
-- """ 

construed * 
-*. to permit brcadest poasibre

r".t#.t'iff:,:,Y:f;tr$.:yXffi discoverv otherwise auowed rrd;;--;;:
definiuons.- -----Euvsvr'r arru covery rules.

10. hetritl procedure coJS

. I*" fact that district attoraey,s officeobtained statement rrom 
",iii"."" #^;;Ienderit work product of district 

"tt""nJ.
:,1r.rf..lg" puposes of discovery request-in
crvu utigation. Bules of Civil hocedue,
rule fic).
ff. hctrid hocedure esit

^,-,_^YTrOve 
privilege. is a privilege

:1"r.{ by a governmental body when 
-it

rears ttat discovery of its confidential in_rormation will seriously impair its ability tofunction.

ffimt$is.:ffi;

15. hetrial Procedure er33
Governmental intercst in favor of

maintaining confidentiality uoa"" "f*t iiprivilege nust be tempered by historiJ
function of courte to prcvide t.p"f...,
!"oTr" for pruduction of nraterial;J;
for just determination of tegal di"&;;
that, t1 inaure that justice is JG L;
Surt should initia[y weigh balane of iiterect in favor of liberai dir*""ry ;i ;facts needed for fair determinatioi Jdl*
pute.

16. IVihress€s 6216

.Executive privilege applicabte to infor-
ra:tign ield by govemmetrt duriag ougeirgcrhinrl prooeeiling ir qualiffed ; - --



, While viewing of document in camera
is' not requ]red for purposes of deciding

. IVhere plaintiffs in civil action sought
transcript of statement made to district-at-
torney in the course of criminal investiga_
tion, whepe district attorney claimed 

"*"iu_tive privilege so as to prevent possible ham-
pering of ongoing eriminal action, but
where district attorney asserted privilege
not by affidavit or under oath but upon
bare allegations at motion hearing, and
where, although document was offered to
court for in camera examination, no such
r.eview took place, trial court abused its
discretion in accepting bare assertions of
district attorney, and, because no military
or state secrets were involved, district court
was required to examine document to de_
termine whether whole entity, or any part
thereof, was prcperly discoverable. 

-nuU
of Civil Procedure, rule 26(c).

-. W. Eugene Rutledge, of Rutledge, Wil-
Iiams, Williams & Norton, Annision, for
petitioners.

William J. Baxley, Atty. Gen. and Wil-
liam P. Eldridge, Asst. Atty. Gen., for re_
spondent, Judge William A. Thompson, Jr.,
10th Judicial Circuit.

__ 
Eqrl C. Morgan, Dist. Atty. and George

Hugh Jonea, Deputy Dist. Atty., Birmin!-
han, for nespoadent, State of AIa. ex rc-I.
Earl C. Uorgan.

JONES, Justice.

Petitionera, Jeaso C. Birhop and Wayne L.
Keras, seek a Writ of Mandamus from this
Court to-compel Judge William A. Thomp
Eon, Jr., Circuit Court for the Tenth Judicial
Circuit, to vacate his Older of February g,
1918, and permit discovery eoneerning oer-
tain documents in the possession of fart C.
f,orgen, District Attoruey for the Tenth
Judicial Circuit. A Writ of Mandamus, di-

362 SOT]THERN REPORTER. 2d SERIES

recting the Circuit Court to vacatn the pro_
tective Order of February g, lg7g, and to
conduct a hearing on the Motion of the
District Attorney for-a prrtective Order
consistent with the principles stat€d in thi8
opinion, is due to issue.

Petitioners are the holders of necord of
7,352 shares of common stock of Assured
Investors Life Insurance Company. On Au_
gust 1?, 1977, dssured Investors Life Insur-
ance Co. v. National IJnion Assxiatns, Inc.,
Civ. Action No. CV-?? 5044n WAT, was
filed in the Circuit Court seeking. adjudica-
tion of certain claims against officers, di-
rectors and stockholders of Assured. Origi-
nally, the action was brought on behalf of
Assured by a Special Committee designated
by its Board of Directors to investigate and
recover on claims made by Bishop. Eventu_
ally, the parties wtrre realigned and Bishop
and Kerns proceeded as plaintiffs, both in-
dividually and derivatively as stockholders
of Assured.t

On January 30, lg?8, peddorerc frlod
notice of taking deposition and subpoena
duces tecum for deposition upon oral exami_
nation addressed to Morgan. The subpoena
sought, inter alia:

"10. Transcripts of any and aI pro-
ceedings occurring during any meeting of
any kind or nature whatsoever between
yourself and any member of your office
and Ronald J. Creel [a named Defendant
in the Civil Action mentioned abovel.,,

On February 3, 1g?8, Morgan filed a Me : 
_

tion for Protective Order pursuant to Bule ..il
26(c), ARCP, seeking to deny discovery of
the Creel documents. As gmunds ther:for,
Morgan alleged ttrat ttre documents sere .. i

tive privilege. No supporting affidavit w8t .

filed, but the Court, rellang upon Morgan'c ,
oath as an officer of the Court and hir cth r.
as District Attorney, aocepted these conten-
tions and ordered that the depositiu,d
aubpoena ,luoes tecum be dissllow€d.

tlre work product of an ongoing crinilrt t;

inveatigation collatcral to the civil rtfor+ j
At the hearing, he further alleged tnet such :Ii
documents were protected under an "r*-( i!

230 Ala.

17. Witneeseg e223

: goverament's elaim of executive privilege,
I it is permissible solong as such in camJra
j insnection itself does not violate important

ponfidential affairs.
yt8. P.o,ri"l Procedure e4l

I
off
an(
vio.

Sta
Cre
at
tior

I
Gra
Eevr

8ga
invr
the

tr
Ans
Judl
men
purs
how,
raise
the
Sa/e,
(le?tw
fie t
(r9?r
Miil

t2)
base<

the I
cSug€

verba
const
for ct
prf€
See a
w, I
SauU
(1e68)

trl
(l

rig{
eoo(

diso
(1

diso
ilqt
mat



ASSURED INTPRS IJFE INS. CO. v. NAT. U. ASSOC.
Clt. r* Al,r., 364 *2dX28

It appears that the District Attorney's that the information sought will bc inad-
office conducted investigations of Assured missible at the trial if the information
and its officers and directors for possible sought appears reasonably calculated to
violations of the insurance laws of this lead to the discovery of admissible evi-
Stst€. In so doing, a statement made by dence.

Creel was obtained and signed by him. It is

a transcript of this statement which Peti-
tioners seek.

In December, 1977, the Jefferson County
Grand Jury returned indictments against
several of the civil codefendants, but not
against C'reel. Morgan asserts that this
investigation is ongoing and that, therefore,
the requested documents are privileged.

tll Preliminarily, we note that, by their
Answerc to this Petition, both Morgan and
Judge Thompson contend that the docu-
ments sought were not subpoenaed properly
pursuant to Rule 45(d), ARCP. It appears,
however, that this contention was not
raised below and, thus, we may not review
the matter here. Cole v. Cole Tomato
Sales, Inc., 293 Ala. 731, 310 So.2d 210
(1975). See also Miller v. Sun Chemical
Corp., 12 F.R.D. 181 (D.N.J.1952); McDuf-
fie v. Hooper,294 Ala. 293, 815 So.2d 573
(1975); and .t'ouatain v. Yrdenburyh Saw
Mill b,2il9 Ala. 68, 181 Sozd 508 (1965).

l2l Our Rules of Civil Procedure are
based upon, and are strikingly similar to,
the Federal Rules of Civil Procedure. Be-
cause these two sets of Rules are virtually
verbatim, a presumption arises that cases

construing the Federal Rules are authority
for construction of the Alabama Rules. Ex
partc Rie,265 Ala. 4U,92 So.2d 16 (1957).

See also Ex partn Hugtley Wabr Systcm,
fr12 N,a,. 633, 213 So.zd 799 (1968); and
Smitlr v. Flynn, Zl5 Ab.892, 155 So.2d 497
(1e63).

t31 Rule 26, ARCP, prwides:
(b) fupe of Diwvery. Unless other-' wise limited by order of the court in

aocordance with these nrles, the scope of
discovery is as follows:

(l) In GeneraL Parties may obtain
discovery regarding any matter, not priv-
ileg'ed, which is relevant to the subject
matter involved in the pending action

It is not ground for objection

AIa. 231

(c) Protcctive Oi"r* Upon motion by
a party or by the penon from whom
discovery is sought, and for good cause
shown, the court in which the action is
pending or alternatively, on matters re-
lating to a deposition or production or
inspection, the court in the circuit where
the deposition or production or inspection
is to be taken may make any order which
justice requires to protect a party or per-
son from annoyance, embarrassment, op-
pression, or undue burden or exp€nse

(Emphasis added.)

Thus, to be entitled to a protective order, a

movant must either show good cause why
the objected-to deposition or production of
documents v'ould be unduly burdensome or
expensive, oppressive, embarrassing or an-
noying, or that the subject matter sought to
be discovered is privileged. The record be-

fore us irl totally without "good ctuee
shown." Tbenefore, because the material
sought is undisputably otlrerwise within the
scope authorized above, it is discoverable
unless it is "privileged." See, generally,
Glick v. McKesson & Robbins, Inc., l0
F.R.D. 4?? (W.D.Mo.l95O); and Allen v.

Jones, ?59 Ala. 98, 65 So.zd 217 (1953).

l4-7l It is well settled that the Rules on
deposition and discovery are to be broadly
and liberally construed. hle, supra. Rule
26(c), supra, recognizes, however, that the
right to discovery is not unlimited, and the
trial court has broad powen to contrcl the
use of the process to prcvent its abuse by
any party. fu Campbeli v. bstland,307
F.zd 478 (5th Cir. 1962); and Del-ong C;orp..

v. Luus, 138 F.Supp. 806 (S.D.N.Y.I956).
The Rule does not allow an arbitrary limit
on discovery; inste&d, it vests the trial
court with judicial discnetion in the dis-
covery prccess. The question on rcview,
then, becomes one of whether, under all the
cirncumstances, the court has abusrd this
diecretion. Campbll v. Regz,l Tlpwritcr



:,
i
It.
G,I
i

282 AIa.

C.o., Ul So.zd 120 (A1a.1976).r An appellate
court may not decide whether it would, in
the first instance, have permitted the
pnyed for discovery- Furtlrermore, it is
unusual to find abuse of tltcretion in these
matters. Swanner v. Unitd Sts0es, 4(m
F2d ?16 (5th Cir. 1969); ?iedman v. Amei-
can Pigmant Corp., ?53 F.zd 803 (4th Cir.
1958); Ex parte Alabama Power h., m
Ala, 586, 196 So.2d 702 (1967); and 35A
CJ.S. Federal Civil Procedure SS 532, 592.

t81 Against this broad policy of liberal
discovery, Morgan contends that the docu-
ment sought to be discovered is privileged.
"Privileged," as used in Rule 26(bXl),
ARCP, means "'privileges' as that term is
understood in the law of eyidence." United
States v. Reynolds, 345 U.S. 1, 6, 73 S.Ct.
528, 531, 97 L.&t. 727 (f953). As stated,
Morgan bases this argument upon two
premises: (1) That the material sought is
the "work product" of the District Attor-
ney's office, gathered in preparation of a
criminal action; and (2) That the material
ti*!tt1b privileged under a bnoad &im of
€*alutte or "Crown' piivilege. i

[9, f0] The "work product" argument is
inapplicable because:

"The written statement of a witness,
whether prepared by him and later deliv-
er"ed to the attorney, or drafted by the
ettorney and adopted by the witness, is
not properly considered the 'work prod-
uct'of an attorney. It records the men-
tal impressions and observations of the
witness himself and not those of the at-
toraey." Scourtes v. Ftred W. Albrccht
Grlcrr"ry Co.,l5 F.R.D. 55, 58 (N.D.Ohio
1953), citing, Hickman v. Taylor,S29 U.S.
{95, 67 S.Ct. 885, 91 L.E{t. 451 (1947).

Here, the merc fact that the District Attor-
ncy's office obtained this st8t€ment does
not render it their work producl The tran-
cgiption and rccordation of tlre statemeat

l. As stated, this acdon concrrns a Writ of
Madamus. While mandamus does not ns-
mally lie to control the enercise of discraion, it
ls nevertheless appropriate to compel rn offi-
dd both to exercis€ his discretion and to exer-

.rU* tt under r propcr lntcrpretldon of epplica-

.:Uc:!rry. SacetcrU v. Supcrlor brt d lJarl:.

362 SOUTHERN REPORTER, 2d SERIES

wa^s incidental to the statement itself,
which was not the prcduct of counsel.
Therefor.e, we ane left with tle sole quea-
tion of whether the statement is nondiscov-
erable under the concept of executive privi-
lege.

ll[ "Executive privilege" is a privilege
claimed by a governmental body when it
fear:s that discovery of its confidential in-
formation will aeriously impair its ability to
function. Wood v. Brcier,54 F.R.D. 7 (8.D.
Wis.1972). Historically, it has 6een re-
served for military and diplomatic stat€ se-
crets and is founded upon the "unfortunate-
ly necessary policy of fettering justice to
promote national health." Timken Roller
Bearing Co. v. Unitcd States, 38 F.R.D. 57,
63 (N.D.Ohio 1964).

In the instant action, the privilege is
claimed so as to prevent possible hampering
of an ongoing criminal action. Morgan,
however, asserted this privilege, not by affi-
davit or under oath, but upon bare allega-
tions at the motion hearing. Though the
doctment was offet€d to the C,ourt for ia'
cim"rz examination, no sueh r.eview took
place.

tl2] As stated in ?iml<en, at 63:

"It can no longer be claimed that a naked
assertion of privilege by the executive is
sufficient to assur€ nondisclosure. tudi-
cial control over the evidence in a case
cannot be aMicated to the caprice of
executive officers.' (kynolds, 845 U.S.,
at $-10, ?3 S.Ct. 528.) Therefore the
responsibility of evaluating the claim of
privilege devolves upon the Court" Thit
can ao longer be questioned."

See also Gaison v. futt, 69 F.RD. 8{?
(D.Hawaii 197t!); and Cnnwty v. Eimraer1

[1968] Law Rpts. (Appeal casea) 91Q oven
nrling, Duaen v. C,ammell L,aird & h,. 1
Ail E.B. 68? (1942).

da County, 17 Cd.3d 107, 130 C8I.Rptr. Zr7,
550 P.2d f6l (f976). Mandamus ir thc propcr
means of rcview to deterarinG $rtethcr thc tdal
judge abused his discr,etion in Umldng th. rlg[t
to discovery. See Er porte ,lbDnrrn &.wr
C-a.,n0 Ah.586, t96 So.2d ?1Il (lSa rl'

U3l In
claims of r
trial court
tltree funt
the claim
of privileg
dence; (2

pruperly ir

cumstance
are apprc
claim. Jt
(E.D.Mich.
Underlyinl
tions is th
mining th
struck bet
terests. (

deniahle ir

SOvernmel
over certa
for the p

duties. O

unquestior
seeking in
of the leg;
Ju*nn v.

19IA); fr,
889 (E.D.r
nally, ther
tion of po
the backgr
privilege.

u4, t5l
est which
is essentia
ecutive p
privileges,
8tl to perm
otherwise
.C.J.S. Fed

iyiu€rnoer
ing confidr
ti[n must
functiori o
ry process
rcdded for
dhputc. I
trirl court
the bahn<
tliscovery
.dettrminar

N,,; ES



{f,
iel.
e8-

DY.

ivi-

]ge
rit
in-
r[p
:.D.

ne-

Ee-

rte-
to

'ller
51,

)ls
:ing

Ian,
lffi-
3ga-

the
rin-<

*ed
re is
ludi-
G88e

eof
u.s.,

the
nof
Thia

h,l"

: ilt'
.opG( l
s trlrl

ASSURED IN\rRS LIFE INS. CO. v. NAT. U. ASSOC.
Cit !s, Ala., l&l Sord 216

tl3] In deciding to uphold or overrule Comm. v. Los Alamos Constructors, Inc.,

claims of executive privilege, the role of the 382 F.Supp. 1373 (D.N.M.1974); Wood, su-

trial court is limited to a determination of pra; Glick, supra; and 35A C.J.S. Federal
three fundamental questions: (l) Whether Civil Procedure S ?88.

the claim fllls within one of the categories
of privileges rEognized in the law of evi-
dener; (2) Whether the clairn has been

properly invoked; and (3) Whether the cir-
cumstances of the case under consideration
are appropriate for the exer.cise of the
claim. Jabara v. Kelley, 75 F.R.D. 475

(E.D.Mich.19?7). See also Reynolds, supra.
Underlying these deceptively simple ques-

tions is the more important task of deter-
mining the proper balance that must be

struck between competing fundamental in-
terests. On the one hand, there is the un-
deniable interest of the cxecutive branch of
government in maintaining confidentiality
over certain types of information necessary

for the performance of its constitutional
duties. On the other hand, there is the
unquestionable interest of the litigant in
seeking information for the just resolution
of the legal dispute. United States ex rel.
Jackson v. Petrilli, 63'F.R.D. f52 (N.D.Ill.
lll4l; Fnnkenhauser v. Rimr 59 F.R.D.
3il9 (E.D.Pa.f978); xtd Wood, eupna . Fi-
nally, there is also the perplexing separa-
tion of powers question that is lurking in
the background of every claim of executive
privilege.

[rl, l5] In light of the balance of inter-
est which must be resolved in such cases, it
is essential to emphasize that claims of ex-
ecutive privilege, like other evidentiary
privileges, must be narrowly construed so

as to permit the broadest possible discovery
otherwise allowed under the Rules. 35

C.J.S. Federal Civil Procedure $ ?09. The
governmental interest in favor of maintain-
ing confidentiality under the doak of privi-
Iege must be tempered by ttre historical
funetion of the courts to provide compulso-
ry process for the prcduction of material
needed for a just determination of the legal

trdispute. To insurr that justice is done, the

/ltrial court should, therefore, initially weigh

flthe balance of interest in favor of liberal
/ | discovery of all facts needed for a fair

idetermination of the dispute. Jabara, su-
pra; F4ual Employment Opportunity

Ala. 233

[Fl8] The executive privilege applica-
ble to information held by the government
during an ongoing criminal proceeding is a
qualified one. Timken, supra. But see

Capitnl Vending h. v. Baker,36 F.R.D. 45

(D.D.C.1964). The trial Judge in this case

did not view the document in camera.
While ordinarily this is not required, cer-
tainly it is permissible so long as such in
camera inspection itself would not violate
important confidential affairs. See Reyn-
olds, supra. Yaffe v. Powers,454 F.%l 1362
(lst Cir. 1972); and Kinol' v. Mitchell, 67

F.R.D. 1 (S.D.N.Y.1975). In thc case before
us, the trial Court abused its discretion by
accepting the bare assertions of the District
Attorney that the material sought was priv-
ileged. Also, because no military or atate
secrets are involved, we hold that tlie trial
Court must examine the document tp deter-
mine whether the whole entity, or any part
thel&f, is properly discoversble. It'is only
through such an examination that the pop
er balancing deternrination can be made.

During the pendency of such examination,
however, the Court must be careful not to
disclose the very thing the privilege, if any,
is designed to protect.

If, upon the notification of this decision,
the Circuit Court does not vacate the Pro-
tective Order of February 3, 1978, and pro-
ceed to conduct a hearing on the Motion of
the District Attorney for a Protective Order
consistent with the principles ststed in this
opinion, a Writ to effectuate such action
will issue upon the request of Petitioners.

WRIT GRANTED CONDITIONALLY.

BLOODWORTH, FAULKNEB, EtrT{BRY

and BEATTY, JJ., @ncur.

TOBBERT, C. J., and MADDOX, J., dis-
senL

MADDOX, Justice (Dissenting).

It may have been better if the District
Attoraey had filed an affidavit that the

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