Motion and Memorandum of Points and Authorities for Protective Order; Order; Notice of Appearance; Affidavits; Notices to Take Depositions

     [||35569c27-507c-4355-be47-13bdf134e690||] UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

BERNICE TERRY, et al., 

Plaintiffs, 

No. H 76-373 Ve. 

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

Defendants. 

RICHARD GORDON HATCHER, 
et al., 

Plaintiffs, 

Vv. No. H 77-154 

METHODIST HOSPITAL OF GARY, 
INC., 8 al., 

Defendants. 

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MOTION FOR PROTECTIVE ORDER 
  

Plaintiffs have noticed the deposition of Edward Koven, 

Office of General Counsel, Department of Health, Education, and 

Welfare (HEW) for December 14, 1977. Defendant HEW opposes this 

motion and seeks a Protective Order from this Court to 

prevent the taking of this deposition. As grounds for its motion 

defendant HEW states that the taking of this deposition is barred 

by the attorney-client privilege, the attorney work-product 

doctrine and the intra-governmental privilege. In support of 

this motion, the Court is respectfully referred to the 

affidavits of Edward Koven and Kenneth Mines and defendant's 

Memorandum of Points and Authorities. 

Respectfully submitted, 

  

BARBARA ALLEN BABCOCK 

Assistant Attorney General 

  

RICHARD L. KEISER 

United States Attorney 

 



§ 

  

OF COUNSEL: 
  

: FRED W. GRADY 

Jeffrey Champagne Assistant United States Attorney 
Department of Health, 

Education and Welfare 

  

Marvin G. Garvin BARBARA B. O'MALLEY 

Regional Attorney 

Edward L. Koven   
  

  

Assistant Regional REBECCA L. ROSS 
Attorney 

Department of Health, Con 5. (] 2 
Education and Welfare 

300 South Wacken Drive ANN F. COHEN 
18th Floor Attorneys for Defendants 
Chicago, Illinois Attorneys, Department of Justice 

Washington, D. C. 20530 
Telephone: 739-2230 

 



  

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

BERNICE TERRY, et al., 

Plaintiffs, 

No. H 76-373 Ve 

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

Defendants. 

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RICHARD GORDON HATCHER, 

et al., 

Plaintiffs, 

Vv. No. H 77-154 

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

Defendants. 

MEMORANDUM OF POINTS AND AUTHORITIES IN } 
SUPPORT OF MOTION FOR PROTECTIVE ORDER 
  

Plaintiffs have noticed the deposition of Edward L. Koven, 

Assistant Regional Attorney, Region V, Department of Health, 

Education, and Welfare (HEW) for Wednesday, December 14, 

1977. This Motion for a Protective Order is submitted by 

defendant HEW in opposition to that deposition. HEW has 

been supplied with only general guidelines from plaintiffs’ 

counsel indicating the areas into which plaintiffs will inquire 

into, Therefore as a general response defendant states 

that as counsel for HEW, attorney Koven's communications to 

his client represent communications by a client to its 

counsel disclosure of which through testimony (or otherwise) 

would violate the attorney-client privilege and/or work 

products privilege recognized by the Supreme Court in 

Hickman v. Taylor, 329 U.S. 495 (1947) and P.R.Civ.P. 26(b) (3). 

 



Within the general guidelines plaintiffs have offered 

  

in noticing Koven's deposition defendant HEW can only 

surmise what the specific nature of such inquiry will be. 

To the extent, however, that the specific inquiry will 

require Koven to reveal the mental processes considered by 

his client in reaching determinations as to the 1973 Civil 

Rights Assurances entered into by Methodist Hospital of 

gary, Inc. and HEW or the decisions to conduct any of the 

OCR investigations, such inquiry is impermissible by virtue 

of the attorney-client privilege and the attorney work product 

doctrine. 

Inquiry concerning negotiations between Attorney Koven and 

his client relevant to interpretations of specific words within 

the 1973 Civil Rights Assurances, or an overall legal interpre- 

tation of what the assurances mean, is barred by the attorney- 

client privilege, and the work product doctrine. Y To the 

extent that a factual inquiry is made concerning the foregoing, 

the information is better and more expeditiously obtained 

  

1l/ HEW does not limit itself to asserting the privileges in 
these specific instances only. The delineation of possible 
areas of inquiry is in response to the general guidelines put 
forth by plaintiffs' counsel. 

As an agency employee required to give advice and 
recommendations to the decision-makers at HEW, Koven also 
asserts that the intra-governmental immunity evidentiary 
privilege is available to him. Carl Zeiss Stiftung v. 
V.E.B. Carl Zeiss Jena, 40 P.R.D. 318, 32426 (DD. D.C.,; 
1966), affirmed per curiam, 384 PF. 28 979 (D.C. Cir., 1966), 
Cert. denied, 398 U.S. 952; United States v. Nixon, 418 U.S. 
683, 705 fn. 15 (1974). However, defendant HEW would stress 
that the unique and extremely confidential nature of the 
attorney-client relationship takes precedence over the 
intra-governmental immunity privilege. | 

In several ways these two privileges are co-extensive. The 
intra-governmental immunity privilege is founded upon the 
need for the free flow of advice between the decision-maker 
and those advising and making recommendations to that indivi- 
dual whereas the cornerstone of the attorney-client privilege 
rests upon the attorney's obligations as a professional and 
the Code he or she has sworn to uphold as well as the need 
to facilitate the free flow of advice, information, and 
recommendations within that relationship. 

  

  

    

 



  

from the eight other HEW individuals whose depositions have 

been noticed by plaintiffs. 2/ 

A. The Deposition of Koven Would Violate 
The Attorney-Client Privilege. 
  

In this action, Koven serves as attorney .to HEW. The 

attorney-client privilege is applicable to knowledge acquired 

by Assistant Regional Attorney Edward Koven in the conduct 
- 

of his professional responsibility. The Professional Ethics 

Committee, Federal Bar Association, has recognized 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: | 

[T]he client of the federally employed lawyer, 
using the term in the sense of where lies his 
immediate professional obligation and respon- 
sibility, is the agency where he is employed, 
including those charged with its administration 
insofar as they are engaged in the conduct of 
public business. The relationship is a confi- 
dential one, an attribute of the lawyer's pro- 
fession which accompanies him in his government 
service. This confidential relationship is 
usually essential to the decision-making process 
to which the lawyer brings his professional 
talents. Moreover, it encourages resort to him 
for consultation and advice in the on-going 
operations of the agency. [The Government Client 
and Confidentiality: Opinion 73-1, 32 FEDERAL BAR 
JOURNAL 71, 72-73 (1973)]. 

  

2/ Plaintiffs have noticed the depositions of the following 
individuals: 

(1) Kenneth Mines, Region V Director, OCR, HEW 

(2) Alfred S. Sanchez, Health and Social Services Branch, 
Region V, OCR, HEW 

(3) Cindy Brown, Deputy Director for Compliance and Enforce- 
ment, OCR, HEW 

(4) Michael Middleton, Acting Associate Director for Policy, 
Planning, nad Evaluation, OCR, HEW 

(5) Gus Cheatham, Deputy Director for Program Review and 
Assistance, OCR, HEW 

(6) Martin Gerry, Past Director, OCR, HEW 
(7) Norman Chachkin, Former Associate Director for Policy, 

Planning, and Evaluation, OCR, HEW 
(8) Richard Foley, Former Assistant Director for Health and 

Social Services, OCR, HEW 

  

 



  

The courts have acknowledged that the evidentiary privilege 

residing with the attorney-client relationship applies to official 

communications between an agency counsel and other officials 

within the agency, United States v. Anderson, 34 FRD 518 (D. 
    

Colo. 1963); and exists even between two separate government 

agencies as where confidential communications pass between one 

agency, as client, and the Department of Justice, as its attorney. 

Thill Securities Corporation v. New York Stock Exchange, 57 
    

FRD 133 (E.D. Wisc. 1972); United States v. Gates, 35 FRD 524 
  

(D. Colo. 1964). Congress also recognized the application of 

the attorney-client privilege to government attorneys when 

it enacted the Freedom of Information Act, 5 U.S.C. §552, 

for it exempted from the disclosure requirement those documents 

protected by the attorney-client privilege. Exemption 5, 5 

U.S.C. §552(b) (5) ,provides that the Act does not apply to 

"(5) inter-agency or intra-agency memorandums or letters 

which would not be available by law to a party other than an 

agency in litigation with the agency; . . ." The Senate 

Report on the Act states that Exemption 5 "would include the 

working papers of the agency attorney and documents which 

would come within the attorney-client privilege if applied to 

private parties." Senate Report No. 813, 89th Cong., lst Sess., 

2 (1965). See N.L.BE.B. v. Sears, Roebuck & Co., 421 U.S. 132 
    

(1975). Thus, Edward Koven's relationship with his client, HEW, 

is protected by the attorney-client privilege. 

Interference with the attorney-client privilege in this 

case would destroy the essential element in that relationship. 

Any deposition of Attorney Koven would chill the flow of communi- 

cation between Koven and his client and his function, one of 

serious importance to the public interest, would be detrimentally 

3/ 
and irremedially affected. 

  

3/ See Affidavits of Edward L. Koven and Kenneth Mines attached 
as Exhibits A and B respectively. 

WE  



® . 

Edward L. Koven is bound by the canon of confidentiality 

  

and the evidentiary privilege not to disclose information which 

comes into his possession in the performance of his professional 

responsibility. These considerations are not matters of con- 

venience, nor are they insignificant; rather, they are essen- 

tial and necessary for the proper function of his duties 

and for his responsibility as an attorney. 

Canon 4 of the Code of Professional Responsibility of the 

American Bar Association provides: 

A lawyer should preserve the confidence 
and secrets of a client. 

As counsel to HEW, attorney Koven occupies a unique role. 

Koven is the only attorney for HEW who has been continuously 

involved with this case since as early as March, 1973 at which 

time OCR was conducting its initial administrative investigation. 

As an HEW departmental attorney Koven had full responsibility 

for advising his client, HEW, on its defense of the administra- 

tive investigations. During the course of these investigations 

Koven was called upon by his client for advice and recommenda- 

tions concerning the various problems and issues of the OCR in- 

vestigations. Inquiry into the nature of this advice would im- 

pair Koven's continuing role as counsel and inhibit the free 

flow of advice necessary to maintain that relationship. In Ellis- 

Foster Co. v. Union Carbide and Carbon Corp., 159 F. Supp. 917 
  
  

(D. N.J. 1958), defendant sought through discovery certain cor- 

respondence from plaintiff's counsel to plaintiff. In denying 

the request the court held: 

While it is true that complete revelation 
of relevant facts should be encouraged for 
trial purposes, nevertheless an attorney's 
dealings with his client, if both are sin- 
cere, and if the dealings involve other 
than mere technical matters, should be im- 
mune to discovery proceedings. There must 
be freedom from fear of revealment of matters 
disclosed to an attorney because of the 
peculiarly intimate relationship existing. 
159 FP, Supp. at 919,  



  

B. The Work-Product Doctrine Prohibits the 
Deposition of Koven and Plaintiffs Have 
Access to the Substantial Equivalent 
of Permissible Testimony. 
  

Separate from but intimately related to the attorney-client 

privilege is the work product doctrine which likewise prohibits 

the deposition of attorney Koven. Items protected by the 

work-product doctrine are broader in scope than the confidential 

communications protected by the attorney-client privilege, 

United States: v. Nobles, 422 U.5. 225,288 n. 11 (1975). 
  

Although these two privileges "spring from the same common 

law origin", In re Grand Jury Proceedings, 473 F. 24 840, 844 
  

(8th Cir. 1973), Rule 26(b) (3) encompasses trial preparation 

documents and any relevant evidence prepared by the attorney 

including mental impressions, opinions and legal theories. 

The seminal case of Hickman v. Tavlor, 329 U.S. 495 (1947), 

provides the basis for this doctrine. The Supreme Court's 

decision in that case defines an attorney's work product and 

sets forth the burden on the party requesting that work 

product as follows: 

Proper preparation of a client's case 
demands that he [the lawyer] assemble 
information, sift what he considers to 
be the relevant from the irrelevant facts, 
prepare his legal theories and plan his 
strategy without undue and needless 
interferences . . . this work is reflected, 
of course, in interviews, memoranda, 
correspondence, briefs, mental impressions, 
personal beliefs, and countless other 
tangible ways . . . as the "work product 
of the lawyer. 

[T]he general policy against invading 
the privacy of an attorney's course of 
preparation is so well recognized and 
so essential to an orderly working of our 
system of legal procedure that a burden 
rests on the one who would invade that 
privacy to establish adequate reasons to 
justify production through a subpoena 
or court order. 329:U.5. 495, 511 and 512, 

 



The Court's holding is now embodied in F.R.Civ.P. 26 (b) (3) 

  

which requires that the party seeking discovery "show a 

substantial need [for] the materials. . .-and that he is unable 

without undue hardship to obtain the substantial equivalent 

of the materials by other means" (emphasis supplied). Plaintiffs 

in this case have not fade such a showing nor would it be 

possible for plaintiffs to come forward with a showing of undue 

hardship. A showing of substantial hardship and the inability 

to obtain the substantial equivalent will not suffice to the 

extent plaintiffs seek the mental impressions and opinions | 

of Attorney Koven. 

[Ulnlike ordinary work product, opinion 
work product cannot be discovered upon 

‘a showing of substantial need and an 
inability to secure the substantial 
equivalent of the materials by 
alternate means without undue hard- 
ship. . . + Ih our view, opinion work 
product enjoys a nearly absolute immunity 
and can be discovered only in very rare 
and extraordinary circumstances. Our 
unwillingness to recognize an absolute 
immunity for opinion work product stems 
from the concern that there may be rare 
situations, yet unencountered by this 
court, where weighty considerations of 
public policy and proper administration 
would militate against the non-discovery 
of an attorney's mental impressions. 
Absent such a compelling showing, the 
attorney's opinion work product should 
remain immune from discovery. 

In re Murphy, 360 P. 24 326, 336 (1977) 

With regard to work product that is not opinions and 

mental impressions,plaintiffs must make a showing of hardship. 

Plaintiffs have requested the depositions of eight other HEW 

individuals, (see footnote 2, infra) who can fully testify 

and offer plaintiffs the "substantial equivalent" of the 

information sought. 

These eight depositions are, of course, limited by the 

attorney-client privilege and other privileges and factors 

which may become relevant during the course of the eight 

depositions. For example, if questions probing the 

we. 7 -  



  

mental processes considered by Mines' in reaching various 

administrative decisions are asked during his deposition 

such inquiry will be objected to as impermissible. United States 
  

v. Morgan, 313 U.S. 409, 422 (1941), and Citizens to Preserve 
  

Overton Park v. Volpe, 401 U.5. 402, 420 (1971). 
  

Apart from the right of Defendant HEW to assert the 

privileges which may become applicable during the eight 

depositions, HEW does not object to these depositions which 

will provide plaintiffs with more than the "substantial 

equivalent" of Koven's Testimony. However, the deposition 

of Koven should be ruled impermissible by virtue of the 

provisions of F.R.Civ.P. 26(b) (3) and Hickman v. Taylor, 

supra. 

C.:Conclusion. 
  

For the foregoing reasons, defendant Joseph A. Califano, 

Jr. respectfully requests that this Motion for a Protective 

Order be granted. 

Respectfully submitted, 

  

BARBARA ALLEN BABCOCK 

Assistant Attorney General 

  

RICHARD IL.. KEISER 

United States Attorney 

 



  

OF COUNSEL: 

- Jeffrey Champagne 

Department of Health, 
Education and Welfare 

Marvin G. Garvin 
Regional Attorney 

Edward L. Koven 

Assistant Regional 
Attorney 

Department of Health, 
Education and Welfare 

300 South Wacken Drive 
18th Floor 
Chicago, Illinois 

  

FRED W. GRADY 
Assistant United States Attorney 

  

BARBARA B. O'MALLEY 

  

. SS 
REBECCA L. ROSS 

(on Cede 
  

ANN F. COHEN > 
Attorneys for Defendants 
Attorneys, Department of Justice 
Washington, D. C. 20530 
Telephone: 739-2230 

 



  

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

BERNICE TERRY, et al., 

Plaintiffs, 

No. H 76-373 Ve. 

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

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Defendants. 

RICHARD GORDON HATCHER, 

et al., 

Plaintiffs, 

No. H 77-154 Ve 

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

Defendants. 

ORDER 
This matter having come before the Court on the deponent 

Edward L. Koven's Motion for 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 advised in the premises, it is therefore this 

day of December, 1977, hereby 

ORDERED, that deponent Edward L. Koven's Motion for Pro- 

tective Order be and is hereby granted. 

  

UNITED STATES DISTRICT JUDGE  



  

UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

BERNICE TERRY, et al., 

Plaintiffs, 

Ye 

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

Defendants. 

RICHARD GORDON HATCHER, 

et al., : 

Plaintiffs, 

ve. 

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

Defendants. 

No. H 76-373 

No. H 77-154 

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NOTICE OF APPEARANCE 
  

The clerk of the Court will please enter the appearance 

of Ann F. Cohen, Esg. as co-counsel for Defendant Department 

of Health, Education and Welfare. 

Lun, Coban   
ANN F. COHEN 

Attorney, Department of Justice 
Washington, D.C. 20530 
Telephone: 739-5350 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that copies of the Motion for Protecitve 

Order, Memorandum of Points and Authorities in Support Thereof, 

and Proposed Order have been served via hand delivery this 6th 

day of December, 1977, upon: 

Ms. Beth Lief 
Mr. Jack Greenberg 
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 mail upon: 

Ms. Marilyn G. Rose 
Ms. Christine B. Hickman 
1757 N Street, N.W. 
Washington, D. C. 20036 

Mr. Anthony DeBonis, Jr. 
Murphy, McAtee, Murphy 

& Costanza 
First National Bank Building 
720 W. Chicago Avenue 
East Chicago, Indiana 46312 

Michael Schaefer 
Assistant Attorney General 

of Indiana 
219 State House 
Indianapolis, Indiana 46204 

Con? Cte 
ANN F. COHEN 
  

 



  

IN THE 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

BERNICE TERRY, et al., 

Plaintiffs : No. H 76-373 

V3. 

METHODIST HOSPITAL OF GARY, INC., 

Defendants 

RICHARD GORDON HATCHERS, et al., i No. H 77-154 

Plaintiffs 

VS. 

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

Defendants 

  

COUNTY OF COOK ) 
) SS.: 

STATE OF ILLINOIS ) 

AFFIDAVIT OF EDWARD LOUIS KOVEN 
  

Edward Louis Koven, being first duly sworn, states and avers: 

1. I was employed as an attorney in November 1968 in the Regional Attorney's 

Office of the Office of the General Counsel, Region V, of the Department of Health, 

Education, and Welfare in Chicago, Illinois. 

2. I have without interruption continued to be employed by the Department of 

Health, Education, and Welfare since November 1968. 

3. One of my responsibilities as an attorney in the Regional Attorney's Office 

of the Office of the General Counsel has been the rendering of legal advice, both oral 

and written, since March 1973 to the Office for Civil Rights of the Department of 

Health, Education, and Welfare, in civil rights matters relating to the Methodist 

Hospital of Gary, Inc., which are the subject of this lawsuit. 

4, TI firmly believe that the proper operation of the Department of Health, 

Education, and Welfare requires the free flow of advice, recommendations, guidance, 

and deliberative communications by the Department's attorneys to the agencies for 

which they are providing legal services, including the Office for Civil Rights. 

 



  

5. Any testimony I would give that is unique to me would contain such advice 

and recommendations that I as counsel gave to my clients. 

6. The taking of my deposition would seriously impede my ability to give advice 

and recommendations to any agency within the Department of Health, Education, and 

Welfare, including the Office for Civil Rights - the agency I have assisted most 

frequently in this case. 

7. In addition, I would be hesitant to participate in the free flow of advice, 

recommendations, guidance, and deliberative communications with Department of Health, 

Education, and Welfare officials seeking my advice in future matters if I could not 

be assured that such advice would fall within the protection of the attorney-client 

privilege. 

8. Moreover, information not unique to me as an attorney relating to the Methodist 

Hospital of Gary, Inc., is available from non-privilege sources. 

9. Canon 4 of the Code of Professional Responsibility of the American Bar 

Association, as amended in August 1976, says that a lawyer should preserve the confi- 

dences and secrets of his client. The taking of my deposition would seriously 

jeopardize my obligation to preserve the confidences and secrets of my client, the 

Department of Health, Education and Welfare and more specifically the Office for 

Civil Rights, including our thought processes, over a period of time from March 1973 

to the present in civil rights matters relating to the Methodist Hospital of Gary, 

Inc., which are the subject of this lawsuit. 

10. Canon 5 of the Code of Professional Responsibility of the American Bar 

Association, as amended in August 1976, says that a lawyer should exercise independent 

professional judgment on behalf of his client. Based upon my reading of ethical 

consideration EC 5-9 and disciplinary rule DR 5-102, the taking of my deposition 

raises a question as to whether I should continue as counsel or withdraw as counsel 

in this matter where I have been the primary legal advisor to the Office for Civil 

Rights for more than four and one-half years. 

Further affiant sayeth not. 

Edward Louis Koven 

Sworn to before me this 

A day of December, 1977. 

tite. fora, Violin Lette, J fo Corvhi Coe ty, Jer oe: 
Pry Commas, fine OH 45 15 

 



  

IN THE 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND. DIVISION. 

  

BERNICE TERRY, et al., 

Plaintiffs : No. H 76-373 

VS. 

METHODIST HOSPTIAL OF GARY, INC., 

et al., 

Defendants 

RICHARD GORDON HATCHERS, et al., No. H 77-154 

Plaintiffs 

VS. 

METHODIST HOSPITAL OF GARY, INC., 

  

etal, 

Defendants 

COUNTY OF COOK ) 
) BS. 

SPATE OF ILLINOIS ) 

AFFIDAVIT OF KENNETH A. MINES 
  

Kenneth A. Mines, being first duly sworn, states and avers: 

1. I have been employed by the Office for Civil Rights, Region V, 

of the Department of Health, Education, and Welfare since February 1969 

and as Regional Director of the Office for Civil Rights, Region V, 

continuously from October 1972 to the present time. 

2. One of my duties as Regional Director of the Office for 

Civil Rights is to call upon the Office of the General Counsel of 

the Department of Health, Education, and Welfare for legal advice, 

recommendations, guidance, and deliberative communications. 

 



  

3. In ny vole 28 Regional Director of the Office for Civil 

Rights of Region V I sought legal advice, recommendations, and 

guidance of the Regional Attorney's Office of the Department of 

Health, Education, and Welfare's Office of the General Counsel in 

matters relating to the Methodist Hospital of Gary, Inc., which are 

the subject of this lawsuit. 

4, Since March 1973, Edward Louis Koven has been the primary 

attorney in the Department of Health, Education, and Welfare's Office 

of the General Counsel who has rendered legal advice, recommendations, 

and guidance to me in matters relating to the Methodist Hospital of 

Gary, lnc. , which are the subject of this lawsuit. 

5. I firmly believe that the proper operation of the Department 

of Health, Education, and Welfare requires the free flow of advice, 

recommendations, guidance, and deliberative communicationsby the 

Department's attorneys to the agencies for which they are providing 

legal services, including the Office for Civil Rights. 

: 6. The taking of Mr. Koven's deposition would in my opinion 

seriously impede the free flow of advice and recommendations that needs 

to exist for this attorney-client relationship between Mr. Koven and 

myself to continue. It would impair my ability to consult with 

Mr. Koven as counsel in this situation where I continue to need his 

advice and recommendations as counsel. In addition, I would not be 

comfortable in seeking legal advice from Mr. Koven in any future matter 

involving the Office for Civil Rights if I could not be reasonably sure 

that such communications would be confidential and privileged. DMore- 

over, if this deposition were allowed to take place, it has implications 

that would reach into my entire relationship with the Office of the 

General Counsel. 

Further affiant sayeth not. 

Kenneth A. Corns 
  

Sworn to before me this 

gy day of December, 1977. 
  

Hifi ~, Jalon Botley o£ fon Corl Com ts, Qs 
Cray, 1% 51 

 





  

IN THE 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

BERNICE TERRY, et al., 

Plaintiffs, 

vi NO. H 76-373 

METHODIST HOSPITAL OF GARY, INC., : 

et al., : 

Defendants. : 

  

  

RICHARD GORDON HATCHER, et al., 

Plaintiffs, 3 

o
e
 

v. : NO. H 77-154 

METHODIST HOSPITAL OF GARY, INC., : 

et al., 3 

Defendants. 

  

NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION 

TO: Rebecca L.. Ross, Esq. 

Department of Justice 

10th and Pennsylvania Avenue, N. W. 

washington, D. C. 

Marvin G. Garvin and Edward L. Koven, Esgs. 

Regional Attorney & General Attorney 

Department of Health, Education and welfare 

300 South wacker Drive, 18th Floor 

Chicago, Illinois 

Fred W. Grady, Esq. 

Assistant United States Attorney 

United States District Court 

Northern District of Indiana 

Federal Building, 507 State Street 

Hammond, Indiana 46325 

 



  

Please take notice that at 9:30 A.M., on Tuesday, 

January 10, 1978, at the offices of the Department of 

Health, Education and Welfare, 300 S. Wacker Drive, 

18th Floor, Chicago, Illinois 60606, plaintiffs in the 

above-entitled actions will take the deposition of 

KENNETH MINES, agent and employee of defendant Joseph 

E. Califano, defendant in the above-entitled actions, 

pursuant to the Federal Rules of Civil Procedure, 

before some officer authorized by law to administer oath. 

The oral examination will continue from day to day until 

completed. As attorneys for the defendant, you are 

invited to attend and cross examine. 

JACK GREENBERG 
BETH J. LIEF 

BRENT E. SIMMONS 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

  

JULIAN B. ALLEN, JR. 

2009 Broadway 

Gary, Indiana 46407 

Attorneys for Plaintiffs 

 



  

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 -alé., 

Defendants. 

  

  

RICHARD GORDON HATCHER, et al., 

Plaintiffs, 

Ve : NC. BH 77-154 

METHODIST HOSPITAL OF GARY, INC., : 

et al., 

Defendants. 

  

NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION 

TO: Rebecca L. Ross, Esq. 
Department of Justice 
10th and Pennsylvania Avenue, N.W. 
Washington, D.C. 

Marvin G. Garvin and Edward L. Koven, Esgs. 
Regional Attorney & General Attorney 
Department of Health, Education and Welfare 
300 South Wacker Drive, 18th Floor 
Chicago, Illinois 

Fred W. Grady, Esq. 
Assistant United States Attorney 
United States District Court 
Northern District of Indiana 
Federal Building, 507 State Street 
Hammond, Indiana 46325 

 



  

Please take notice that at 9:30 A.M., on Wednesday, 

January, 11, 1978, at the offices of the Department of Health, 

Education and Welfare, 300 S. Wacker Drive, 18th Floor, Chicago, 

Illinois 60606, plaintiffs in the above-entitled actions will 

take the deposition of ALFRED SANCHEZ, agent and employee of 

defendant Joseph E. Califano, defendant in the above-entitled 

actions, pursuant to the Federal Rules of Civil Procedure, 

before some officer authorized by law to administer oath. The 

oral examination will continue from day to day until completed. 

As attorneys for the defendant, you are invited to attend and 

cross-examine. 

eda 4. Seed 
JXCK GREENBERG 
BETH J LIEF 
BRENT SIMMONS 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

  

JULIAN B. ALLEN, JR. 

2009 Broadway 

Gary, Indiana 46407 

Attorneys for Plaintiffs 

 



  

IN THE 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

o
e
 

.
e
 

BERNICE TERRY, et al., 

Plaintiffs, 

v. : NO. H 76-373 

METHODIST HOSPITAL OF GARY, INC., 

etal. 

Defendants. : 

  

  

RICHARD GORDON HATCHER, et al., 

Plaintiffs, 

Vv. NO. BH 77-154 

METHODIST HOSPITAL OF GARY, INC., 

et al., 

Defendants. 3 

  

NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION 

TO: Rebecca L. Ross, Esq. 
Department of Justice 
10th and Pennsylvania Avenue, N.W. 
Washington, D.C. 

Marvin G. Garvin and Edward L. Koven, Esgs. 
Regional Attorney & General Attorney 
Department of Health, Education and Welfare 
300 South Wacker Drive, 18th Floor 
Chicago, Illinois 

Fred W. Grady, Esq. 
Assistant United States Attorney 
United States District Court 
Northern District of Indiana 
Federal Building, 507 State Street 
Hammond, Indiana 46325 

 



  

Please take notice that at 9:30 A.M., on Thursday, 

January, 12, 1978, at the offices of the Department of Health, 

Education and Welfare, 300 S. Wacker Drive, 18th Floor, Chicago, 

Illinois 60606, plaintiffs in the above-entitled actions will 

take the deposition of RICHARD FRIEDMAN, agent and employee of 

defendant Joseph E. Califano, defendant in the above-entitled 

actions, pursuant to the Federal Rules of Civil Procedure, 

before some officer authorized by law to administer oath. The 

oral examination will continue from day to day until completed. 

As attorneys for the defendant, you are invited to attend and 

cross-examine. 

edie dy fork 
JACK GREENBERG’ 

BETH J LIEF 

BRENT SIMMONS 

10 Columbus Circle 
Suite 2030 

New York, New York 10019 

  

JULIAN B. ALLEN, JR. 

2009 Broadway 
Gary, Indiana 46407 

Attorneys for Plaintiffs 

 



  

IN THE 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

BERNICE TERRY, et al., 

Plaintiffs, 

Vv. : NO. H 76-373 

METHODIST HOSPITAL OF GARY, INC., : 

et al., : 

Defendants. : 

  

  

LE
] RICHARD GORDON HATCHER, et al., 

Plaintiffs, 

Vv. : NO. H 77-154 

METHODIST HOSPITAL OF GARY, INC., 3 

et al., 

Defendants. 

  

NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION 

TO: Rebecca L. Ross, Esq. 
Department of Justice 
10th and Pennsylvania Avenue, N.W. 
Washington, D.C. 

Marvin G. Garvin and Edward L. Koven, Esgs. 
Regional Attorney & General Attorney 
Department of Health, Education and Welfare 
300 South Wacker Drive, 18th Floor 
Chicago, Illinois 

Fred W. Grady, Esq. 

Assistant United States Attorney 
United States District Court 
Northern District of Indiana 
Federal Building, 507 State Street 
Hammond, Indiana 46325 

 



  

Please take notice that at 9:30 A.M., on Monday, 

January 16, 1978, at the offices of the Department of Justice, 

9th and Pennsylvania Avenue, N.W., General Litigation Section, 

Civil Division, Room 3343, Washington, D.C. 20530, plaintiffs 

in the above-entitled actions will take the deposition of 

MICHAEL MIDDLETON, agent and employee of defendant Joseph E. 

Califano, defendant in the above-entitled actions, pursuant to 

the Federal Rules of Civil Procedure, before some officer 

authorized by law to administer oath. The oral examination 

will continue from day to day until completed. As attorneys 

for the defendant, you are invited to attend and cross-examine. 

lok Bh ofead 
JACK GREENBEHRG 

BETH J LIEF 

BRENT SIMMONS 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

  

JULIAN B. ALLEN, JR. 

2009 Broadway 
Gary, Indiana 46407 

Attorneys for Plaintiffs 

 



  

IN THE 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

BERNICE TERRY, et al., 

Plaintiffs, : 

e
e
 

Vas : 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., : 
et al., . 

Defendants. 

  

NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION 

TO: Rebecca L.. Ross, Esq. 
Department of Justice 
10th and Pennsylvania Avenue, N.W. 
Washington, D.C. 

Marvin G. Garvin and Edward L. Koven, Esgs. 
Regional Attorney & General Attorney 
Department of Health, Education and Welfare 
300 South Wacker Drive, 18th Floor 
Chicago, Illinois 

Fred W. Grady, Esq. 
Assistant United States Attorney 
United States District Court 
Northern District of Indiana 
Federal Building, 507 State Street 

Hammond, Indiana 46325 

 



  

Please take notice that at 9:30 A.M., on Tuesday, 

January 17, 1978, at the offices of the Department of Justice, 

9th and Pennsylvania Avenue, N.W., General Litigation Section, 

Civil Division; Room 3343, Washington, D.C. 20530, plaintiffs 

in the above-entitled actions will take the deposition of 

CINDY BROWN, agent and employee of defendant Joseph E. 

Califano, defendant in the above-entitled actions, pursuant to 

the Federal Rules of Civil Procedure, before some officer 

authorized by law to administer oath. The oral examination 

will continue from day to day until completed. As attorneys 

for the defendant, you are invited to attend and cross-examine. 

Medd 4, herd 
JACK GREENBERG 7 
BETH J LIEF 
BRENT SIMMONS 

10 Columbus Circle 
Suite 2030 
New York, New York 10019 

  

JULIAN B. ALLEN, JR. 

2009 Broadway 
Gary, Indiana 46407 

Attorneys for Plaintiffs 

 



  

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, 

v. : NO. H 77-154 

METHODIST HOSPITAL OF GARY, INC., : 

et al., : 

Defendants. 3 

  

NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION 

TO: Rebecca L. Ross, Esq. 
Department of Justice 
10th and Pennsylvania Avenue, N.W. 
Washington, D.C. 

Marvin G. Garvin and Edward L. Koven, Esgs. 
Regional Attorney & General Attorney 
Department of Health, Education and Welfare 
300 South Wacker Drive, 18th Floor 
Chicago, Illinois 

Fred W. Grady, Esq. 
Assistant United States Attorney 
United States District Court 
Northern District of Indiana 
Federal Building, 507 State Street 
Hammond, Indiana 46325 

 



  

Please take notice that at 9:30 A.M., on Wednesday, 

January 18, 1978, at the offices of the Department of Justice, 

9th and Pennsylvania Avenue, N.W., General Litigation Section, 

Civil Division, Room 3343, Washington, D.C. 20530, plaintiffs 

in the above-entitled actions will take the deposition of 

GUS CHEATHAM, agent and employee of defendant Joseph E. 

Califano, defendant in the above-entitled actions, pursuant to 

the Federal Rules of Civil Procedure, before some officer 

authorized by law to administer oath. The oral examination 

will continue from day to day until completed. As attorneys 

for the defendant, you are invited to attend and cross-examine. 

/ A 
# ~Y 

[eA {Un ALAA 

JACK GREENBERG 
BETH J LIEF 
BRENT SIMMONS 

10 Columbus Circle 
Suite 2030 
New York, New York 10019 

  

JULIAN B. ALLEN, JR. 

2009 Broadway 
Gary, Indiana 46407 

Attorneys for Plaintiffs 

 



  

IN THE 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

BERNICE TERRY, et al., 

Plaintiffs, 

V. - NO, BH 76-373 

METHODIST HOSPITAL OF GARY, INC., 3 

et 'al., : 

Defendants. 

  

  

RICHARD GORDON HATCHER, et al., 

Plaintiffs, 

Vv. : NO. H 77-154 

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

Defendants. 

  

NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION 

TO: Rebecca L. Ross, Esq. 
Department of Justice 
10th and Pennsylvania Avenue, N.W. 
Washington, D.C. 

Marvin G. Garvin and Edward L. Koven, Esgs. 
Regional Attorney & General Attorney 

Department of Health, Education and Welfare 
300 South Wacker Drive, 18th Floor 
Chicago, Illinois 

Fred W. Grady, Esq. 
Assistant United States Attorney 
United States District Court 
Northern District of Indiana 
Federal Building, 507 State Street 
Hammond, Indiana 46325 

 



  

Please take notice that at 9:30 A.M., on Thursday, 

January 19, 1978, at the offices of the Department of Justice, 

9th and Pennsylvania Avenue, N.W., General Litigation Section, 

Civil Division, Room 3343, Washington, D.C. 20530, plaintiffs 

in the above-entitled actions will take the deposition of DR. 

HAROLD MARGULIES, agent and employee of defendant Joseph E. 

Califano, defendant in the above-entitled actions, pursuant to 

the Federal Rules of Civil Procedure, before some officer 

authorized by law to administer oath. The oral examination 

will continue from day to day until completed. As attorneys 

for the defendant, you are invited to attend and cross-examine. 

4 fl 

Ne db ff f A £y 77 NY Lh FAA [} TY A 
JACK GREENBERG ' © 
‘BETH J LIEF 

BRENT SIMMONS 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

  

JULIAN B. ALLEN, JR. 

2009 Broadway 
Gary, Indiana 46407 

Attorneys for Plaintiffs 

 



  

Certificate of Service 
  

I hereby certify that a copy of the foregoing Notices to 

Take Depositions Upon Oral Examinations of KENNETH MINES, 

ALFRED SANCHEZ and RICHARD FRIEDMAN, employees and agents of 

defendant Joseph E. Califano; and MICHAEL MIDDLETON, CINDY 

BROWN, GUS CHEATHAM, and DR. HAROLD MARGULIES, employees and 

agents of defendant Indiana State Board of Health, all defen- 

dants in the foregoing actions were served by United States 

mail, postage prepaid, on the 16th 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, Illinois 

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 46401 

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 

ii 
  

Beth J. Lief 
Counsel for Plaintiffs. [||35569c27-507c-4355-be47-13bdf134e690||]