Motion for Protective Order and Opposition to Joint Motion for Production and Documents; Memo of Points and Authorities; Declaration; Orders

     [||e3d60ab7-196f-4ec3-a82d-3a14a8e1c088||] IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

BERNICE TERRY, et al., 

Plaintiffs, 

Vv. Civil No. H76-373 

METHODIST HOSPITAL OF 
GARY, INC., et al., 

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Defendants. 

RTCHARD GORDON HATCHER, 
et al., 

Plaintiffs, 

v. Civil No. H77-154 

METHODIST HOSPITAL OF 
GARY, INC., ef al., 

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Defendants. 

MOTION FOR A PROTECTIVE ORDER AND 
OPPOSITION TO JOINT MOTION 

FOR AN ORDER FOR THE PRODUCTION 
AND DOCUMENTS 
  

Defendant, Califano, hereby opposes the Joint Motion of Methodist Hospital of 

Cary, Inc., and Plaintiffs Terry and Hatcher, et al. and hereby moves this court, 

pursuant to Rule 26(c) of the Federal Rules of Civil Procedural, for a protective 

order. Defendants contend that the Joint Motion does not comport with Rule 34 of 

the Federal Rules of Civil Procedure or the Local Rules of the Northern District of 

Indiana. Defendants request a protective order pursuant to Rule 26(c) asserting the 

intra-governmental immunity privilege with respect to the requested documents. De- 

fendant Califano refers this Court to the Affidavit of Davis Sanders, attached hereto, 

and to the Points and Authorities submitted in Support of this Motion. 

Respectfully submitted, 

    Bait a Allen Bit 
BARBARA ALLEN BABCOCK 
Assistant Attorney General 

fed WW Otay Jagr 
FRED W. GRADY g/:"¢ 

  

  

Assistant United States Attorney 

 



  

      

ben bana 0 alles Joy 
BARBARA O'MALLEY 77 

Kebeo CA & Re 55 
REBECCA L. ROSS 

aE 
ANN F. COHEN 

     

  

  

Attorneys, Department of Justice 

Washington, D.C. 20530 

(202) 739-2230 
Attorneys for Defendant Califano 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

BERNICE TERRY, et al., 

Plaintiffs, 

Vv. Civil No. H76-373 

METHODIST HOSPITAL OF 
GARY, INC., et al., 

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Defendants. 

RICHARD GORDON HATCHER, 
et al., 

Plaintiffs, 

Vv. Civil No. H7T7-154 

METHODIST HOSPITAL OF 
GARY, INC., et al., 

Defendants. 

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 
OF MOTION FOR A PROTECTIVE ORDER AND OPPOSITION 
TO JOINT MOTION FOR AN ORDER FOR THE PRODUCTION 
OF DOCUMENTS 
  

FACTS   

During the depositions conducted on February 22 and 23, 1978 of Alfred J. 

Sanchez and George Hurney, officials of the Department of Health, Education and 

Welfare, counsel for both Defendant Methodist Hospital and Plaintiffs requested 

that counsel for Defendant Califano provide certain documents for discovery and 

inspection.l/ The depositions were noticed without a request for the production 

of documents pursuant to Rule 34. When counsel jointly requested the production 

of these documents at the depositions, counsel for defendant Califano orally re- 

sponding to the requests, indicated that they would be made available subject to 

assertion of the privileges available to defendant Califano. Counsel for Califano 

  

1/ Defendant Califano does not oppose or seek a protective order with respect to 
seven of the nine documents requested by the other parties. Defendant Califano's 

opposition to the request and motion for a protective order is united to items numbere 

6 and 7 in the Joint Motion. Defendant Califano has already provided the parties 

with most of the documents listed in items numbered 1, 2, 3, 4, 5, 8 and 9 and will 
provide the parties with the balance no later than Monday March 6, 1978. 

 



  

further stated that the requested documents must be examined before a specific 

privilege could be asserted. 

On Tuesday evening February 28, 1978 Counsel for Defendant Califano received 

the Notice of Hearing, the Joint Motion For An Order For the Production of Documents, 

the Joint Request of Defendants Methodist Hospital of Gary, Inc., and Denis E. 

Ribozdy, and Plaintiffs For Production of Documents (Exhibit A). Exhibit A constitutes 

the first request by Defendant Methodist Hospital for production of Documents. Plain- 

tiffs previously made a general request for documents. Numerous documents were made 

BEI based upon that request. Exhibit A, however, is the first 

narrow and specific request received by either party and comes to defendant Califano 

at the same time as does a Joint Motion for An Order For Production of Documents. 

THE PARTIES HAVE FATLED TO COMPLY WITH THE PROCEDURAL REQUIREMENTS 
OF RULE SA P.R, Cv. P. RL : 
  

Rule 34(b) requires that a party upon whom a request for production is made 

shall have 30 days in which to respond by producing the requested documents or 

stating a objection to that request and setting forth the reasons for the objection. 

The court may allow a shorter or longer period of time in which to respond. No 

rather it 
shortening of time has been requested by either party pursuant to their request /is 

accompanied by an further Motion for An Order Compelling Production of Documents. 

Defendant Califano is mindful of the March 13, 1978 trial date but must be afforded 

the opportunity, in a timely manner, to assert the privileges to which he is entitled. 

The procedural deficiencies of the Joint Motion hardly have provided Defendant Califano 

with that opportunity. 

Rule 7(e) of the Local Rules for the United States District Court for the 

requires 
Northern District of Indiana / "[s]trict corformance with Rules 26-37 of the 

Federal Rules of Civil Procedure, which govern discovery." Counsel for Methodist 

Hospital and Plaintiffs have clearly not filed their motion in "strict corformance" 

with the rules governing discovery under the Federal Rules of Civil Procedure. 

Nor have counsel for Methodist Hospital and plaintiffs followed the local 

rules of this court, which under Rule 7 require: 

. The court will refuse to rule on or will deny any and 
all motions related to discovery unless moving counsel refers 
to this rule and states in the motion that, after personal 
meeting and consultation and sincere attempts to resolve 

 



  

differences, counsel are unable to reach an accord. This 

statement shall recite, in addition, the date, the time, 
and the place of such personal conference, and the names 
of all individuals attending. 

The joint motion does not refer to the local rule nor does it recite that 

personal meetings and conferences have been held to resolve differences. Defendant 

Califano has made most of these requested documents available, within two days of 

counsel's request, and it can hardly be alleged that defendant Califano is attempting 

to delay this process. With regard to items numbered 6 and 7 defendant Califano 

asserts the intra-governmental immunity privilege 2/ and the assertion of this 

privilege cannot in any manner be construed as a delay of the discovery process, 

but rather represents defendant Califano's rights under the Federal Rules of Civil 

Procedure and the law outlined infra. 

  

2/ See Argument infra. 

 



  

Defendant Califano Objects to the Release of Items 6 and 7 in the Joint 
Motion for Production of Documents and Asserts the Intra-Governmental 
Immmnity Privilege 
  

Defendant Califano has previously stated that there is no objection 

to release of items 1,2,3,4,5, 8 and 9. However with respect to items 6 and 7 

Defendant Califano contends that the public interest in nondisclosure as evidenced 

by the attached Declaration of Davis Sanders and the claim of the inter-governmental 

immunity privilege should prevent the disclosure of these documents. 

As stated in the Declaration of Davis Sanders, attached hereto the 

requested documents represent internal communications between agency officials 

containing advice or recommendations on proposed government action. These are 

advisory documents and do not constitute final agency action. Specifically item 

number 6 is a draft of a final report prepared for discussion purposes. The 

document is clearly marked "DRAFT" and was intended to be advisory. The 

document was never released nor made public in any way. As such it does not 

represent the official position of Defendant Califano and is only advisory in 

nature. 

Item number 7 is an internal memorandum prepared by the Chief of the 

Health and Social Services Branch, office for Civil Rights, Region V, HEW Fon 

the Deputy Director, Office for Civil Rights, Region V, HEW. This document 

was prepared to offer advice and recommendations to the Office for Civil Rights 

to make a determination on the Civil Rights clearances for projects 212 and 213. 

A final decision was made and this document, item 7, represents advisory opinions 

made prior to the determination to give Civil Rights clearance. As such this 

document is a pre-decisional, internal and advisory memorandum. 

The intra- governmental immunity privilege is predicated upon the 

need for protecting the decision making process of governmental agencies and 

focuses upon documents "reflecting advisory opinions, recommendations and 

deliberations comprising part of a process by which governmental decisions and 

policies are formulated." Carl Zeiss Stiftung v. E.B. Carl Zeiss, 40 F.R.D. 318, 
  

  

at 324 (D.D.C. 1966) affirmed per curiam, 384 F.2d 1979 (D.C. Cir. 1966), cert. 

denied, 398 U.S. 952, (hereinafter ''Zeiss'). 

 



The Department of Health, Education and Welfare documents are 

  

certainly covered by the privilege protecting intra-governmental documents 

containing opiniorsand recommendations, commonly referred to as "official 

information" or "executive'' privilege. 3/ 

Perhaps the best analysis of the principle of not requiring 

disclosure of intra-governmental communications is set forth in the 

"Zeiss" case: 

The privilege, as do all evidentiary privileges, 
affects an adjustment between important but competing 
interests. There is, on the one hand, the public 
concern is revelations facilitating the fairest resolu- 
tion in legal disputes, and, on the other, occasional 
but compelling public needs for confidentiality. In 
striking the balance in favor of non-disclosure of intra- 
governmental advisory and deliberative commmications, the 
privilege subserves a propounding policy of frank ex- 
pression and discussion among those upon whom rest the 
responsibility for making a determination that enables 
government to operate. * * * No where is the public 
interest more vitally involved than in the fidelity 
of the sovereign's decision and policy-making resources. 
[40 F.R.D. at 324-325]. 

  

3 / In N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132 (1975) the Supreme 
Court recognized that this privilege has been referred to by a wide variety 
of labels: 

The privileges claimed by the government to be 
relevant to this case are (i) the "generally * * * 
recognized privilege for ''confidential intra-agency 
advisory opinions. * * *'%&" 
Kaiser Aluminum and Chemical Corp. v. United States, 
517 F. Supp. 939, 946 (Cc. Cl., 1958), Reed J., disclosure 
of which would be 'injurious to the consultative functions 
of government. * * *' Kaiser Aluminum & Chemical Corp., 
supra at 946. "Eppa Mink, supra, at 86-87 (sometimes referred 

FP PRE, 7 
FANT AY to as ''executive privilege) * 

  

    

  

  

See also, Advisory Committee Note to Federal Rules of Evidence, Rule 509, 56 F.R.D. 
at 251-254. The government also recognizes that some courts have required to 
agency head to formally assert his official information privilege, similar 
to the procedure followed in executive privilege cases. Other courts have not 
required this burdensome procedure. Compare, SEC v. National Student Marketing 
Association, 538 F.2d 404 (D.C. Cir., 1976); Federal Trade Commission v. Bremnan, 
50°F. R.D, 364 W.D. Mo., 1972); Union Oil Co. of California v. Morton, 36 F.R.D. 
643 (C.D. Calif., 1972); with Thill Securities Corp. v. New York Stock Exchange, 
57 F.R.D. 133 (D. Wis., 1972); Veranzano Trading Co. v. United States, 358 
F.Supp. 273 (Cust. Ct., 1973); Note "Discovery of Government Documents and the 
Official information Privilege,' 76 Colum. L. Rev. 142, 166-167 (1976). 

  

    

  

    

  
  

Should this Court determine that these documents are relevant and not 
otherwise privileged, and that a formal claim by the agency head is necessary, 
the government reserves the right to file such an affidavit. See discussion, 
infra on in camera inspection.   

 



  

In addition, the Zeiss case points that there is a second policy to support 

the privilege: 

[Tlhe immmnity of intra-governmental opinion and 
deliberations also rest upon another policy of 
equal vitality and scope. The judiciary, the court 
declared, is not authorized to ''probe the mental 
processes’ of an executive or administrative officer. 
Statutory rule forcloses the investigation into the 
methods by which the decision is reached, the matters 
concerned, the contributing influences, or the role 
played by the work of others. * * * Results demanded 
by the exigencies of the most inperitive character. 
[40 F.R.D. at 325-326]/ 

This concept of secrecy for intra-governmental commmications, whatever its 

rationale, is deep-seated in our history. See United States v. Nixon, 418 U.S. 
  

683, 705, fn. 15; The Federalist n. 64, (S. Mittell Ed. 1938), and has been 

adopted by Congress in Exemption 5 of the Freedom of Information Act. See 

5 U.S.C. §552(b)(5). Thus, it can be stated unwquivocally that there is a 

privilege against disclosure, in certain situations, of intra-governmental 

communications. There is no doubt that recommendations within the Department 

of Health, Education and Welfare are covered by such a privilege. The documents 

which were the subject of the Zeiss case were internal memoranda of the Antitrust 

Pivision of the Department of Justice concerning the possibility of an Antitrust 

ie 

Further, plaintiff and defendant Methodist Hospital can show no 

"need" for these documents which could be sifficient to outweigh the claim of 

privilege. See, United States v. Article of Drug, 43 F.R.D. 181 (D. Del., 1967). 
    

During the depositions of Messrs. Sanchez and Hurney the deponents were permitted 

to testify as to factors considered in making their recommendations, persons consulted 

with, the subject matter of meetings as well as the time and place of these meetings. 

Moreover, the final determinations with respect to item number 7 was testified to by 

both deponents. For these reasons, the discovery must be tempered by the claimed 

privilege and the request for documents 6 and 7 should be denied. 

  

4/ 

When counsel for Defendant Califano asserted the intra-governmental immunity privilege 
during the deposition of Mr. Sanchez, counsel for plaintiff responded by stating that 
the privilege only attaches to non-final agency action. This argument is specious. 
As the Supreme Court was careful to point out in N.L.R.B. v. Sears, supra at 1517 fn. 
18 and 19. 

  

Our emphasis on the need to protect predecisional documents does 
  

not mean that the existence of the privilege turns on the ability 
of an agency to identify a specific decision in connection with 
which a memorandum is prepared. Agencies are, and properly should 
be, engaged in a continuing process of examining their policies; this 
process will generate memoranda containing recommendations which do not 
ripen into agency decisions; and lower courts should be wary of inter- 
fering with this process. 

 



  

IN CAMERA INSPECTION 
  

The parties, in their Joint Motion for An Order For Production of Documents 

have requested counsel for defendant Califano "to have in their possession . . . all 

documents which are the subject of this motion, to facilitate in camera inspection 

of the documents and/or their immediate production for purposes of discovery, should 

either or both events be ordered by the Court." 

Counsel for defendant Califano will tender the documents for which the Pian 

is claimed to the court for in COTETE inspection if the court so requires. However 

Defendant Califano agrees to in camera inspection on the condition that before this 

Court orders the release of the two documents being withheld that defendant Califano 

be permitted to file a Declaration with this Court asserting the Executive Privilege. 

Therefore while Defendant Califano will agree to in camera inspection, if required, 

the defendant will not agree to release of the documents after inspection until 

Secretary Califano has been provided the opportunity to assert the further privilege 

of the executlve, 

In Freeman v. Seligson, 405 F.2d 1326, 1338 (D.C. Cir. 1968) the Court set forth 
  

guidelines for assertion of the executive privilege. The court laid out a two step 

process whereby the parties requesting the document must first "adequately bolster 

[the production demand] by a general showing of relevance and good cause" Freeman 

supra. 

After that time the government should be afforded the opportunity to assert the 

executive privilege. As the Freeman court stated, a definitive ruling should 

appropriately be deferred until the executive has had a chance to assert the privilege. 

CONCLUSION   

For the foregoing reasons, defendants' objections to discovery should be sub- 

stained and the protective order should be granted. 

Respectfully submitted, 

: Au hoa 2 fr bbcoce fy 

BARBARA ALIEN BABCOCK 
Assistant Attorney General 

fred Cially Jaye 

  

  

PD Jd. ORRY 1 7 
Assistant United States Attorney 

 



  

Ai hance Ohl Sars 
BARBARA O'MALLEY FLA 
  

7 po a 0 , Repeccap Eo sf Wai 
REBECCA L. ROSS 7 ¢ 

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ern : 7 (st Te 

ANN F. COHEN 

  

  

Attorneys, Department of Justice 
Washington, D.C. 20530 

(202) 739-2230 
Attorneys For Defendant Califano 

 



  

DECLARATION   

I, Davis Sanders, make this declaration in accordance with the terms of 

18 U.S.C. §1746. 

1. TI am the Deputy Director of the Office for Civil Rights, Region V, 

Department of Health, Education, and Welfare and have held this position since 

April 13, 1975. 

2. In this capacity I have become familiar with the operations of the Office 

for Civil Rights with regard to pre-grant civil rights clearance, complaint re- 

views, and compliance reviews. | 

3. I understand that the counsel for Methodist Hospital of Gary, Inc. and 

counsel for plaintiffs have filed a Joint Motion For An Order For the Production 

of Documents. Specifically I understand that both counsel have requested "6. 'Final 

Report' regarding complaint of Gary Human Relations Commission versus Methodist 

Hospital of Gary, Inc., prepared by Alfred J. Sanchez in May or June 1977." and 

"7. Memorandum from Alfred J. Sanchez to Davis Sanders regarding Sanchez' 'concerns' 

about the mental health and family practice aspects of Methodist Hospital of Gary's 

Application for Projects 212 and 213." 

i, I have personally analyzed both of these documents. 

5. The first document item 6 is a draft of a final report prepared for 

internal agency discussion regarding the complaint of the Gary Human Relations 

Commission. As an internal draft prepared for discussion purposes; it was never 

released by the responsible official in the Office for Civil Rights and was never 

issued to the parties involved. 

6. The second document, item 7, is an internal memorandum prepared by the 

Chief, Health and Social Services Branch, Office for Civil Rights, Region V, HEW. 

The memorandum contains advice and recommendations which were considered by the 

Office for Civil Rights in making a determination of civil rights clearance for 

projects 212 and 213. 

 



  

7. The proper operation of the Office for Civil Rights requires the 

free flow of advice and recommendations within the agency to protect, among other 

things, the internal deliberations of the persons involved. 

8. The documents described as items numbered 6 and 7 contain such advice 

and recommendations necessary to the proper operation of the Office for Civil 

Rights. 

9. Disclosure of these particular documents would seriously impede the free 

flow of advice and recommendations and impair the Office for Civil Right's 

decision-making process. 

In declare under penalty of perjury that the foregoing is true and correct. 

/- 
Executed on Meow [ L: t97¢& 

SE ich choles 

  

  

Davis Sanders 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

BERNICE TERRY, et al., 

Plaintiffs, 

Vv. Civil No. H76-373 

METHODIST HOSPITAL OF 
QARY, INC., et al., 

Defendants. 

RICHARD GORDON HATCHER, 
et al., 

Plaintiffs, 

V. Civil No. H77-154 

METHODIST HOSPITAL, OF 
GARY, INC., et al., 

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Defendants. 

‘ORDER 
  

This matter having come before the Court on the Defendant Califano's Motion 

for a Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil procedure, 

and the Court having considered the motion and briefs from all parties, and being 

fully advise in the premises, it is therefore this day of March, 1978 hereby 

ORDERED, that defendant Califano's Motion For A Protective Order be and is 

granted. 

  

United States District Judge 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

BERNICE TERRY, et al., 

Plaintiffs, 

Vv. Civil No. H76-373 

METHODIST HOSPITAL OF 
GARY, INC., et al., 

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Defendants. 

RICHARD GORDON HATCHER, 
et al., 

Plaintiffs, 

v, Civil No, H77-154 

METHODIST HOSPITAL OF 
GARY, INC., et al., 

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Defendants. 

ORDER   

This matter having come before the Court on the Joint Motion of Defendant 

Methodist Hospital of Gary, Inc. and Plaintiffs, and the Court having considered 

the motion and briefs from all parties, and being fully advised in the premises, 

it is therefore this day of March, 1978 hereby   

ORDERED, that the Joint Motion For an Order to Produce Documents by Defendant 

Methodist Hospital of Gary, Inc. and Plaintiff be is hereby DENIED. 

  

UNITED STATES DISTRICT JUDGE 

 



  

I, hereby certify that coples of the foregoing Opposition to Joint Motion 

For An Order For the Production of Documents, Defendant Califano's Motion for a 

Protective Order Affidavit of Davis Sanders, memorandum of Points and Authorities 

in Support of Motion and Proposed Orders have been served upon the following counsel 

of record this 2nd day of March 1978: 

by hand delivery to: 

Ms. Beth Lief 

10 Columbus Circle 

New York, New York 10019 

Mr. Julian Allen 
2009 Broadway 
Gary, Indiana 46407 

Mr. Bruce Sayers 
Hodges, Davis, Greenberg, 

Compton & Sayers 
5525 Broadway 
Gary, Indiana 46401 

and by first class mall: 

Ms. Marily G. Rose 
1757 N Street, NW 
Washington, D.C. 20036 

Michael Schaefer 
Assistant Attorney General of Indiana 
219 State House : 
Indianapolis, Indiana 46204 

Lon = Cofle.,. 
  

Ann Cohen [||e3d60ab7-196f-4ec3-a82d-3a14a8e1c088||]