Correspondence from Derfner to Menefee; Docket; Order; Opposition to the Motion to Quash; Order; Exhibits; Motion to Quash; Deposition Subpoena for Gerald W. Jones; Notice of Deposition; Correspondence from Menefee to Jones

    LAW OFFICES 

RAY P 

ARMAND 

HARRIET McB. JOHNSON 

 



* DC 100 (4/82) é » 

DOCKET - 
MISCELLANEOUS DOCKET NO. b MISC. NO. 43-0112 

UNITED STATES DISTRICT COURT 

    
  

  

TITLE OF CASE ATTORNEYS 

  

    For plaintiff: 

ARMAND DERFNER, ESQUIRE 

5520 33rd Street, N.W. 

vs Washington, D.C. 20015 
(202) 244-3151 

DAVID C. TREEN, et al. 

THIRD-PARTY DEPONENT: 

GERALD W. JONES 

For defendant: Deponent: GERALD W. JONES 
Barbara L. Gordon and Harold N. Iselin 

Attorneys, Dept. of Justice 

Civil Division, Room 3722 

10th and Pennsylvania Ave., N.W. 

Washington, D.C. 20530 
(202) 633-4504 

    MEMORANDA ARE ME OR. RECEIVED DISBURSEC 

    

            
  

  
Djte Order © 

PROCEEDINGS 
ugament 

    
....MOTION TO QUASH OR, IN THE ALTERNATIVE, FOR A PROTECTIVE ORDER 

F.S. 85-0235 

       



  

PROCEEDINGS 
Date Order or 
Judgment 

Noted 
  Misc. Na, 85-0112 
  

MOTION of the Federal Deponent to quash or, .in the alternative, for a 

protective order, supporting memorandum, attachments A, B, C.. (ID) 

OPPOSITION of pltfs to the motion of the Federal Deponent to quash. (lp) 

ORDER denying motion of the U.S. to quash or in the alternative, for a 

protective order; Supboena issued to third party deponent, Gerald W. 

Jones shall be enforced. (See Order for further details)(N) 

JOYCE H. GREEN, J. (1p) 

  

         



“ » Te wi 
FILED 2< 

De 

UNITED STATES DISTRICT COURT APR 2 4 1985 
FOR THE DISTRICT OF COLUMBIA 

CLERK, U.S. DISTRICT COURT. 

DISTRICT OF COLUMBIA 

BARBARA MAJOR, et al., 

Plaintiffs, 

DAVID TREEN, et al., 

) 
) 
; 

Vie ) Civil ‘Action No. 85-0112 

) 
) 
) 
) Defendants. 

ORDER 

Before the Court is the United States' Motion to Quash Or, 

in the Alternative, For a Protective Order. 

I. 

Plaintiffs Barbara Major, et al., are black voters who 

recently prevailed in a Voting Rights Act challenge to the 

Louisiana congressional districting statute. Major v. Treen, 574 
  

F. Supp. 325 (E.D. La. 1983). The plaintiffs’ attorney fee peti- 

tion in that case, however, is still outstanding. A trial on the 

petition is currently set for May 6, 1985, before U.S. Magistrate 

Alma Chasez in New Orleans. 

The plaintiffs expect that one of the central issues in the 

attornys fee trial will be whether the total number of hours 

sper: by the plaintiffs' counsel was reasonable. The plaintiffs 

further expect the defendants will attempt to demonstrate that 

the plaintiffs' hours were unreasonably high. In order to 

counter that argument, the plaintiffs requested information from 

the United States Department of Justice--a third party and the  



movant here--about the number of lawyers and the number of hours 

spent on three recent voting rights cases. The plaintiffs 

initial informal request went unanswered. Accordingly, the 

plaintiffs subpoenaed Gerald W. Jones, Chief of the Voting Rights 

Section of the Civil Rights Division, to appear for a deposi- 

tion. The Justice Department has resisted that subpoena on the 

grounds that it is intrusive, unnecessary, irrelevant and burden- 

some. The Department now requests that this Court grant a 

protective order preventing any discovery and quashing the 

plaintiffs' subpoena. 

11. 

As a general matter, a trial court has "hroad, but not 

unlimited discretion in evaluating the circumstances of a case 

when considering quashing a subpoena on grounds of oppressive- 

ness." Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 
  

403 (D.C. Cir. 1984). The burden of establishing that the sub- 

poena is oppressive, however, "is on the party moving to 

quash." Id. 

In this instance the Court is not persuaded that the 

Department of Justice has met its burden. First, the plaintiffs’ 

request is narrowly tailored. The plaintiffs do not insist on 

production of the underlying records. They have made clear that 

they are prepared to "accommodate the Department [of Justice] by 

taking the information in whatever form is most convenient-- 

statement, affidavit, copies of documents, or deposition." 

Plaintiffs' Memorandum at 4-5. See also Attachment C to Movant's 

De  



Memorandum, Letter of Larry T. Menefee to Gerald W. Jones, April 

8, 1985. The subpoena is not a subpoena duces tecum. Likewise, 
  

the information sought is concise and straightforward: the 

plaintiffs seek to know simply the number of attorneys who worked 

on each of three cases, the total number of hours they spent on 

each case, and the number of hours spent by paralegals on each 

case. According 0 the plaintiffs, this information is kept on 

timesheets and is retrievable in a matter of "minutes". Further- 

more, neither party disputes that the cases about which the 

plaintiffs seek information are similar to the extent that they 

involved suits brought to enforce the Voting Rights Act. 

Second, the information requested by the plaintiffs is 

potentially highly relevant to issues involved in the upcoming 

trial before Magistrate Chasez. Simply stated, the central 

question to be decided is whether the plaintiffs' petition 

constitutes a fair and reasonable fee for the legal services 

rendered. See Hensley v. Eckerhart, 461 U.S. 424 (1983). To 
  

determine whether the requested fee is reasonable, the Magistrate 

must decide, inter alia, whether the time listed by the plain- 
  

tiffs as actually spent on the case in fact was a "reasonable" 

amount of time to have spent. The information requested by the 

plaintiffs is clearly pertinent to this issue. See generally 
  

Chewning v. Edwards, C.A. NO. 76-334 {D.D.C. Sept. 2, 1983), 
  

appeal denied, No. 83-2221 (D.C. Cir. Nov. 29, 1983) (enforcing a 
  

subpoena seeking information from a third party about rates for 

"similar work"; appeal denied as "premature”). 

-3-  



The Court's conclusion on this second point is bolstered by 

additional information in the record. The only witness listed by 

the defendants for the upcoming trial is Jerris Leonard, a former 

Assistant Attorney General for the Civil Rights Division of the 

Department of Justice. He is expected to testify, at a deposi- 

tion scheduled for April 25 at 9:00 a.m. (a mere three hours 

before the plaintiffs' scheduled deposition with Mr. Jones, the 

third party deponent), that the plaintiffs spent more time on the 

Major case than has been spent on comparable voting rights liti- 

gation. Given the likelihood that the defendants will introduce 

this evidence concerning comparable cases at the trial, itis 

appropriate to permit the plaintiffs to prepare their evidence of 

comparable cases. The plaintiffs intend to accomplish this by 

the scheduled deposition of Mr. Jones. 

I1I. 

Finally, the Court is not unaware of the Department's 

concern that failure to grant a protective order in this instance 

could result in numerous similar requests that would "open[] up a 

Pandora's Box of discovery requests" and require the expenditure 

of "significant Department resources". Department's Memorandum 

at 6. This, however, need not be the case. The Voting Rights 

Act is unique unto itself. Because the Justice Department bears 

the brunt of the Voting Rights Act enforcement carried out across 

the country, the plaintiffs' sources of "comparable case" infor- 

mation are relatively limited. More important, based on the 

plaintiffs' representations, the request in this case does not 

“hw  



require the expenditure of significant Department resources, nor 

is it unduly burdensome. As noted above, no records have been 

requested, and the plaintiffs have expressed willingness to 

accommodate the Department by accepting the information in what- 

ever form is most convenient for the Department. 

Accordingly, for the reasons stated above, the motion of the 

United States to quash, or in the alternative, for a protective 

order, is hereby denied. The subpoena issued to third party 

deponent, Gerald W. Jones, shall be enforced. The motion to 

quash was filed April 23, 1985; opposition thereto was only 

received this date. Although this Order has been telephonically 

communicated to counsel this afternoon, it is possible that as a 

result of the Order the scheduled proceeding on April 25, 1985, 

may be briefly delayed, a matter to be accommodated by the 

counsel. 

SO ORDERED this 24th day of April, 1985. 

oh (on Jet Me 
/ JOYCE HENS GREEN 

United States District Judge 

  

 



UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

BARBARA MAJOR, et al., 

Plaintiffs, 

Ve. : Misc. No. 85-0112 

DAVID TREEN, et al., 

Defendants 

PLAINTIFFS' OPPOSITION TO THE 

MOTION OF THE FEDERAL DEPONENT TO QUASH 
  

This case is before the Court on the Justice Department's motion to 

quash a subpoena. Our Court of Appeals has recently reiterated that on 

such a motion the burden of proof is on the party seeking to quash the 

subpoena, and that the burden is "heavy." Northrop Corp. v. McDonnell 
  

Douglas Corp., 751 F.2d 395, 403 (D.C. Cir. 1984). 

In this case, the burden is even heavier than usual, because the 

subpoena at issue is for testimony rather than a subpoena duces tecum. 

Quashing a subpoena ad testificandum is exceedingly rare. 4 J.W. Moore, 

Federal Practice Y 26.69; 5A id. Y 45.05(2]. Even if this subpoena is 
  

treated as a subpoena duces tecum, the case is controlled completely by 

the Northrop case, supra. There, as here, the case was pending in 

another federal court and the United States was not a party. One of the  



litigants served a subpoena duces tecum on the Secretary of State, who 

moved to quash it as burdensome. The claim of burden was supported by a 

declaration by Frank Machak (copy attached), a high State Department 

official who testified that responding to the subpoena would require 

hundreds or thousinds of hours to search and review nearly 3,000,000 

documents occupying approximately 967 cubic feet of storage space. 

Notwithstanding these awesome figures, the Court of Appeals held 

(reversing a district court order) that the Secretary of State had not 

carried his burden of showing that the subpoena should be quashed. 

In this case, there is no factual presentation and no declaration 

of any kind from any official who has anything to do with the 

information sought in the deposition, so that the claim of 

burdensomeness is unsupported by anything but the speculation of the 

attorneys. If the Government's case was not sufficient to quash the 

subpoena in Northrop, there can be no doubt that the subpoena in this 

case should be enforced forthwith. 

ARGUMENT 

Plaintiffs Barbara Major, et al., are black voters who have won a 

significant decision holding that the Louisiana congressional 

districting statute discriminated on account of race in its 

gerrymandering of the two New Orleans districts, and therefore violates 

section 2 of the Voting Rights Act, 42 U.S.C. § 1973. Major v. Treen, 
   



“3 - 

574 F. Supp. 325 (E.D. La. 1983)(three-judge court). Plaintiffs have 

filed an attorney fee petition, as authorized by statute, and a trial om 

the fee petition is set for May 6, 1985, before U.S. Magistrate Alma 

Chasez in New Orleans. 

One of the central issues in this fee proceeding will be whether 

the number of hours spent by plaintiffs' counsel was reasonable; 

defendants have argued that plaintiffs' hours were unreasonably high, 

and are expected to support that argument by testimony that lawyers in 

other voting rights cases have spent fewer hours. To meet this 

argument, plaintiffs wish to discover from the United States Department 

of Justice, which litigates more voting rights cases than anyone else, 

how many hours the lawyers in the Voting Section have spent in the most 

recent cases comparable to the Major case. 

Therefore plaintiffs have subpoenaed Gerald W. Jones, Chief of the 

Voting Section, for a deposition to provide the following information 

about each of three named cases: (1) how many lawyers worked on the 

case; (2) how many hours did they spend; and (3) how many hours did 

paralegals spend? 

The Justice Department has now moved to quash the subpoena, and 

with all due respect, that is a little hard to believe. 

The motion to quash makes no sense in terms of the actual 

information requested and the ease of getting it, it conflicts with  



dye 

settled law, and it is ironically just the opposite of the Justice 

Department's efforts in other cases where the Department itself has very 

aggressively sought information about other attorneys' time and rates. 

1. What is being sought? The information being sought is simply 

the number of attorneys who worked on each of three named cases, the 

total number of hours they spent on each case, and the number of hours 

spent by paralegals on each case. To the best of our knowledge, this 

information is readily available because Justice Department lawyers keep 

timesheets showing the number of hours they spend on each matter. Our 

understanding is that these timesheets are sent, every week or two 

weeks, to an administrative office which puts the information into a 

computer. Therefore the retrieval of the information could be as simple 

as a matter of minutes. We would not be surprised if the Justice 

Department has the information already or, if not, we believe it could 

be obtained almost immediately. 

Our efforts began a month and a half ago with informal 

conversations followed by a letter on March 20, 1985, to the Deputy 

Chief of the Voting Section asking for the information. When nearly 

three weeks went by with no decision, and with the trial drawing near, 

we filed a notice of deposition and served a subpoena on Mr. Jones on 

April 11, 1985, for a deposition to be held on Thursday, April 25. At 

each stage we have made clear that we will accommodate the Department by 

taking the information in whatever form is most convenient =-- statement,  



5 

affidavit, copies of documents, or deposition. In fact, the subpoena is 

not a subpoena duces tecum; the testimony we want will obviously call 

for the witness to get the records and know what they say, but we do not 

insist on the records themselves. 

2. Why is the information necessary? As the United States itself 
  

has argued (in cases where it wants information to help it litigate 

about attorney fees), information need not be relevant to be 

discoverable as long as it may lead to relevant information. See 

Chewning v. Edwards, C.A. No. 76-334 (D.D.C.)([Secretary of Energy's] 

Opposition to Motion to Quash the Subpoena to the Designee of Lawyer 

Referral and Information Service of the district of Columbia Bar, filed 

January 7, 1983, page 2 n. 1). Here, however, the information sought is 

relevant, and we believe it is admissible as evidence. 

As the Court knows, the heart of every attorney fee application is 

the "lodestar," consisting of the time reasonably spent, along with the 
  

reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424 (1983). 

Time "reasonably spent" is not necessarily the same as time actually 

spent, so it is typical for fee opponents to argue that the time 

reasonably spent should have been less than what was actually spent, 

while the fee applicants argue that the time actually spent was all 

reasonable. These arguments, on both sides, typically cite the time 

spent in other cases as indicative of what is reasonable. See 2 Mary 

Derfner & A. Wolf, Court Awarded Attorney Fees YY 18.03(2], 18.03[3]. 
   



-0 

This case is no different, and we already know that the defendant 

State of Louisiana will be relying on the same type of evidence that we 

are seeking through this subpoena. The only witness listed by Louisiana 

thus far is Jerris Leonard, a former Assistant Attorney General for 

Civil Rights now in private practice, who frequently defends voting 

rights cases. He is expected to testify that plaintiffs' hours were 

unreasonably high by comparison to the time spent in voting rights cases 

he has tried in nearby states such as North Carolina and Mississippi. 

Ironically, Mr. Leonard is scheduled for a deposition here in 

Washington this Thursday at 9:00 a.m., at which he will testify about 

cases that took less time than Major. Three hours later, at 12:00 noon, 

if the motion to quash is denied, we are scheduled to take the 

deposition of Mr. Jones, for what we expect will be testimony that 

several other comparable cases, in South Carolina and Georgia, took more 

time than Major. (All three cases involve claims, as in Major, that 

districting plans are racially discriminatory in violation of the Voting 

Rights Act; one of the cases, Busbee v. Smith, involves the two 

congressional districts in Atlanta in much the same way that Major 

involves the two congressional districts in New Orleans.) 

Testimony of this sort, from both Leonard and Jones, will 

undoubtedly be of use to the Court in Louisiana in determining the 

number of hours reasonably spent by plaintiffs. Yet if the motion to 

quash is granted, the record on the fee application will include  



-~7 

Leonard's testimony for the defendant, about cases with fewer hours, but 

plaintiffs will be denied the opportunity to balance that off with 

testimony about cases that took more hours. It would be hard to imagine 

a clearer case of evidence which is critical to a litigant's case. 

Finally, the motion to quash suggests that litigation over attorney 

fees in a redistricting case is unimportant. Motion, pp. 7-8. But this 

is not simply a private case between two commercial litigants; rather it 

is a case involving the most fundamental civil rights laws, which 

Congress has given the highest priority. No law has more meaning for 

the Nation than the Voting Rights Act, and both Congress and the Supreme 

Court have repeatedly emphasized that attorney fees in civil rights 

cases are integral parts of the remedy, essential if the laws are to be 

adequately enforced. 

3. The law. The law in this area is remarkably clear. As noted 

above, our Court of appeals just four months ago restated the heavy 

burden on someone who seeks to quash a deposition subpoena, even if that 

someone is the United States, is a non-party, and can present facts 

about the enormous effort required to comply. The guiding principle, as 

stated by the Court of Appeals, is that "the paramount interest of the 

Government in having justice done Betvgen litigants in Federal courts 

militates in favor of requiring a great effort on its part to produce 

any documents relevant to a fair termination of the litigation." 751 

F.2d at 407, quoting Westinghouse Electric Corp. v. City of Burlington,  



- Si 

351 F.24 762, 767 (D.C, Cir. 1963), 

The Court of Appeals reversed the order quashing the subpoena even 

though it recognized the burden involved in massive discovery. In this 

case, of course, there is no "great effort" required, because the 

discovery desired is minimal rather than massive. 

The subpoena here is also supported by Judge Flannery's order in 

Chewning v. Edwards, C.A. No. 76-334 (D.D.C. Sept. 2, 1983), enforcing a 
  

subpoena requested by the Justice Department to obtain extensive 
  

information about attorney fees from a third party. In that case, a fee 

application had been filed against the Secretary of Energy in an 

employment discrimination case. In preparing its defense against the 

fee application, the Justice Department subpoenaed the records of the 

D.C. Bar Lawyers Referral and Information Service (LRIS), concerning 

what other lawyers in other employment discrimination cases charged 

their clients. Despite the D.C. Bar's widely publicized resistance (to 

the verge of being held in contempt), Judge Flannery held that the 

information about rates for "similar work" was relevant in setting 

reasonable rates and enforced the subpoena. By the same token, the 

information sought here about time spent in "similar work" is relevant 

in determining time "reasonably spent.” 

4, Conduct of the United States in other cases. The United 
  

States' resistance to providing any information is especially 

inexplicable because in other cases no litigant has been more aggressive  



-0- 

than the United States in seeking information from third parties about 

attorney fee matters. 

In Chewning v. Edwards, as noted above, the Justice Department 
  

pursued to the point of contempt citations extensive information about 

fees charged in other cases by attorneys who had signed up to take cases 

by referral from the D.C. Bar's LRIS. In its Chewning pleadings, the 

Government took positions on relevance, burdensomeness, and virtually 

every other issue that were 100 7 the opposite of its current position. 

Among other cases, the government pursued a similar aggressive 

course in Palmer v. Schultz, 598 F. Supp. 382 (D.D.C. 1984). 

As a final example, the Justice Department actively pursued 

attorney fee information even in a case where, as here, it was not a 

party. While Laffey v. Northwest Airlines, 746 F.2d 4 (D.C. Cir. 
  

1984), was in the district court on a fee application, the court entered 

a protective order sealing up most of the record, including extensive 

information about attorney fees in that case and others. The Justice 

Department filed a motion as amicus curiae to unseal the record, on the 

ground that it and other litigants, as well as the general public, had a 

right to know the information being kept under seal. With the parties’ 

agreement, the district court unsealed most of the record. Order of 

July 28, 13983.  



— 10 = 

In light of the Justice Department's strong advocacy of opening 

other people's attorney fee records, its resistance with regard to its 

: : %* 
own records is especially wrong. 

CONCLUSION 

Because the information sought is essential to the Major 

plaintiffs' case, and because the Justice Department has shown no basis 

for its motion to quash, we pray that the motion to quash be denied and 

the subpoena be enforced. 

Respectfully submitted, 

7): / &: 
i172 L002 0 

ARMAND DERFNER 

5520 33 Street, N.W. 
Washington, D.C. 20015 
(202) 244-3151 

  

  

LARRY T. MENEFEE 

P.0. Box 1051 
Mobile, Alabama 36633 
(205) 433-2000 

. 
The Government's position in this case seems extreme even by its own 

standards. By contrast, in Northrop Corp. v. McDonnell Douglas Corp., 

supra, even while objecting to producing the subpoenaed documents the 
State Department did not object to depositions of its high officials, 

and in fact there were depositions of several Under Secretaries and 
Assistant Secretaries, as well as other officials. See Brief for the 

Appellees, p. 16, filed in the U.S. Court of Appeals on June 4, 1984, 

   



UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

BARBARA MAJOR, et al., 

Plaintiffs, 

Ve : Misc. No. 85-0112 

DAVID TREEN, et al., 

Defendants 

ORDER ON MOTION TO QUASH 
  

On consideration of the Motion of the Federal Deponent to Quash 

Subpoena or in the alternative for a Protective Order, and on 

consideration of the Plaintiffs' Opposition, it is hereby 

ORDERED that the motion to quash or for a protective order be, and 

it hereby is, denied; and it is further 

ORDERED that the subpoena addressed to Gerald W. Jones be 

enforced. 

DONE this day of April 1985. 

  

United States District Judge  



IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

NORTHROP CORPORATION, Misc. No. 84-0003 

Plaintiff, 
F.S. 83-669 

fu.s.D.C., C.D "Cal, 

Civil Action No. 79-0415R] Ve 

McDONNELL DOUGLAS CORPORATION 
Defendant. a

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Declaration of Frank M. Machak 
  

I, FRANK M. MACHAK, declare and say as follows: 

1. 1 am Chief of the Information Access and Services 

Division of the Information Management Center ("FAIM"), Bureau 

of Administration of the Department of State ("the Department”). 

I have served as Chief of the Division of Information Access 

and Services (“the Division") since February 17, 1974. 1 

make the following statements based upon my personal knowledge 

and upon information made available to me in the course of my 

official duties. 

2. A primary responsibility of my Division is to locate 

and retrieve Department records for use by officials of the 

Department. I estimate that 1,500 to 2,500 inquiries are 

received each month from other offices in the Department, 

from overseas posts, and from other Federal Agencies for 

access to information maintained in the Department's record 

systems. A second area of responsibility is the processing 

EXHIBIT E  



of requests for information filed with the Department by 

memb ers of the. public under the Freedom of Information Act 

("FOIA"). The Division also is responsible for assisting the 

Department's legal staff in identifying and producing 

Department records in connection with litigation. 

3. '1.am familiar with the subpoena served by the McDonnell 

Douglas Corporation in the above-captioned matter, December 

21, 1983. Pursuant to the request of a member of the Depart- 

ment's Office of the Legal Adviser, I have coordinated a prelim- 

inary survey of the files under my control in order to estimate 

the quantity of documents falling within the scope of the 

subpoena as well as the retrieval time required to process 

this request. As explained in detail below, our preliminary 

survey indicates that at a minimum, approximately 967 cubic 

feet of files would have to be searched to retrieve documents 

which may fall within the scope of the subpoena. This search 

effort alone would take the Department several months, at a 

minimum, to complete. This estimate pertains solely to 

retrieval of documents from Department files. In addition, 

as indicated in the accompanying affidavit filed by Thomas 

W. Ainsworth, Director, Mandatory Review, Classification/ 

Declassification Center, all responsive documents must be 

individually reviewed as to classification and government 

privilege. (This estimate of files to be searched is a higher  



figure than that identified in the State Department's January 
31, 1934 Ob jections to the McDonnell Douglas sub poena because 
further inquiry revealed additional files which may contain 
documents responsive to the subpoena). 

in both 

The Central 
Foreign Policy Records ("Central Records") consist of all 
documents of a substantive nature that establish, discuss, or 
define foreign policy; set precedents; or require action or 
use by more than one office. Among the types of documents 
maintained in the Central Records are: official record copies 
of incoming and outgoing Departmental communications, including 
telegram and airgram traffic between the Department and 
Foreign Service posts; diplomatic ‘notes; correspondence to 
and from the White House, Members of Congress, and other 
Federal agencies; position Papers and reports; memoranda of 
conversation; and intra-office memoranda. Generally, documents 
are filed topically and geographically. Within the Central 
Records, only telegraphic traffic from April 1982 to the 
present is on-line on the Foreign Affairs Information System 
and thus retrievable directly from it. All telegraphic 
traffic prior to this time period exists only on microfilm 

 



or paper copy and is only retrievable by means of individual- 

ized review. All non-telegraphic documents--such as memoranda, 

letters, or airgrams--regardless of the date, also must be 

retrieved from microfilm or paper copy. 

5. In addition, each office within the Department 

maintains decentralized files concerning foreign policy matters 

related to the daily needs and operations of that Office. 

These decentralized files are retired when no longer needed 

operationally, which generally, though not mandatorily or 

uniformly, takes place after two to three years. Retired files 

are either stored by FAIM in the Department's Records Service 

Center or transferred to the National Archives for storage 

in the Federal Records Center at Suitland, Maryland. Retired 

records are maintained in sealed boxes, known as lots, arranged 

according to broad subject headings (for example “political 

affairs") and periods. In many cases, retired files have 

been screened and documents destroyed according to authorized 

disposition schedules. 

6. The Department has conducted a preliminary review of 

the record holdings of the Office of the Secretary and Office 

of the Deputy Secretary, the Office of the Under Secretary 

of State for Security Assistance, Science and Technology, the  



Office of the Director of the Bureau of Politico-Military 

Affairs, and the Office of Munitions Control and the Office 

of Security Assistance and Sales (SAS) in the Bureau of 

Politico-Military Affairs in response to the subpoena filed 

by the McDonnell Douglas Corporation. (The Bureau of Politico- 

Military Affairs does not currently maintain an Office of 

International Security Policy.) 

7. On January 26, 1984, the Department released to 

McDonnell Douglas copies of 115 license application related 

documents from the current office files of the Office of 

Munitions Control. 

8. That Office's experience with the production of 

these documents serves as an example of the tremendous burden 

placed on the Department by a search and review of only a 

very small portion of documents potentially responsive to the 

subpoena. In order to meet the request for these documents 

on an accelerated basis, the Chief of the Support Services 

Division of the Office of Munitions Control on a one-time 

basis spent one regular work week and ten hours of overtime 

on a weekend in order to compile a package of documents from 

current files of that office consisting of license applications 

and communications from the Department of State, as well as 

memoranda of conversation. A document research specialist 

assigned under normal procedures and not as familiar with 

the substance of these files would presumably have spent an 

even greater amount of time.  



v tia 

‘9. This effort, which kept the Chief of this Division 

from his normal duties of working in conjunction with the 

U.S. Customs Service regarding the enforcement of munitions 

export laws and regulations, represented a search of only 1/3 

of the total current files which, in the Munitions Control 

Office alone, would have to be searched for documents potentially 

falling within the terms of the subpoena. Searches of retired 

files will be even more difficult, since older files are not 

indexed as precisely as more current files and entire cartons 

will have to be searched in order to determine if they contain 

files potentially relevant to the request. Those files will, 

in turn, have to be searched on a document by document basis. 

10. The Office of Munitions Control receives 

approximately 40,000 applications for export licenses each 

year. License applications submitted from 1983 to the present 

are indexed in a computerized system which enables their 

identification by company name and subject matter. The 

actual licenses are filed according to their assigned number 

and once identified they are accessible only by a manual 

search. Each subject designation covers several areas, (for 

example the designation "aircraft" pertains to aircraft 

sales, spare parts, etc.), and thus each application must be 

individually screened to determine if it falls within the 

purview of the subpoena.  



11. As we have indicated to representatives of McDonnell 

Douglas, the Department has agreed to continue with the more 

narrow production of license application related material 

from the retired files of the Office of Munitions Control. 

(As indicated in paragraph 7 above, 115 documents have already 

been provided from current files.) This search effort is 

underway, and to date 61 out of 75 boxes of these retired files 

which required 12 days of effort by an experienced officer, 

have been screened for license applications which fall within 

the scope of the subpoena. The completion of this search is 

expected to take one officer from the Office of Munitions 

Control one additional week. This search of retired files 

has thus far produced approximately 750 pages of licenses 

along with accompanying documentation. Once the 75 boxes of 

retired MC files have been searched for 2opTication related 

materials which are contained in specific name retrievable 

files within the boxes, a second, much more complicated and 

time consuming search of general files contained in these 75 

boxes would have to be made in order to respond to the extremely 

broad requests contained in the McDonnell Douglas subpoena. 

12. The Office of Security Assistance and Sales maintains 

approximately 75 file drawers of documents which may contain 

information relating to the request. These files, covering a 

period from 1975 to the present are maintained predominantly  



by country and would require a complete search of virtually every 
‘ 

file and document to respond to the broad requests contained in 
the subpoena. SAS estimates that it would take several of its 
officers working full time for one entire week to search its 
active files and two additional weeks for their clerical 

personnel to reproduce and index the material prior to review. 
13. The Office of the Under Secretary for Security 

Assistance, Science and Technology maintains approximately 
32 file drawers of documents for 1981-1984. This material 
is filed by country, chronologically, and by subject 

heading. A document by document inspection of these files 
is necessary in order to retrieve documents cited in the 
subpoena. In addition, this office has retired over sixty-five 
boxes of records for the years 1974-1982 which would have to 
be searched for documents responsive to the subpoena. Given 

the specialized nature of the record holdings of this office, 
a limited number of individuals would be qualified to complete 
the search for this material. The SCreenins would take 

approximately two full weeks to complete; however, it is 

highly unlikely that this could be completed on an uninterrupted 
basis. 

14. The records of the Secretary and the Deputy Secretary 
are maintained by the Executive Secretariat (S/S-1).. This 
record system consists of both computerized and paper files.  



In order to obtain an assessment of the effort which would be 

required for a responsive search of the files, as a preliminary 

step a computer search of the file indexes was conducted. 

In order to respond to the McDonnell subpoena, the documents 

from this list would have to be retrieved either from microfilm 

or hand searches. It is estimated that it would take an 

experienced research specialist approximately four weeks to 

complete this task. 

15. The approximately 312 feet of current paper files 

maintained by the Executive Secretariat must also be searched 

for documents which fall within the scope of the subpoena. 

16. The retired records of the Executive Secretariat for 

the years 1974 - 1982 consist of approximately 400 cubic 

foot boxes of documents which must be screened for material 

responsive to the subpoenas. These files are currently 

stored in the Department and would require an official familiar 

with the records to conduct the search. Certain files main- 

tained under sub ject headings relating.to aircraft or the 

sale of airplanes would require a document by doc dent search 

for responsive documents. Other files of a more administrative 

nature could be screened more routinely. 

17. The entire search of the computerized records, the 

current paper files and the retired records of the Executive 

Secretariat as set forth in paragraphs 14 - 16 would be 

likely to exceed 13 weeks of one individual's time.  



18. The Office of International Security Policy (ISP) 

in the Bureau of Politico-Military Affairs was phased-out in 

1981. Its functions were assumed by several other offices 

within the PM bureau at that time. Records from ISP were 

routinely retired to the Foreign Affairs Information Management 

Center prior to the demise of this office. FAIM has located 

one and one-half cubic feet of retired records which must be 

searched in response to the subpoena. The manifests of these 

retired records indicate that the remainder of the records 

retired by ISP have been destroyed in accordance with the 

Department's routine disposition schedules for records management. 

Upon completion of the search of these files, the documents 

must be copied, indexed, and forwarded to the Classification/ 

Declassification Center for review. An additional 8-10 hours of 

search and clerical time would be required to complete this task. 

19. The Office of the Director of the Bureau of Politico- 

Military Affairs does not maintain records in its current or 

retired files which are responsive to the subpoena. All 

material relating to the sub ject areas listed in the subpoena 

is routinely routed to the Office of Munitions Control and 

the Office of Security Assistance and Sales in the PM bureau. 

20. While the Department was undertaking a preliminary 

survey of its record holdings to determine the extent of the 

search and review effort necessary to respond to each category 

of records requested in the subpoena, I, along with other 

Department officials, met with a representative of McDonnell  



Douglas on February 2, 1984 to discuss the problems the 

Department faced in processing a request of this magnitude. 

Based on my notes and my recollection of the meeting, I 

explained in some detail the Department's procedures for the 

retrieval and review of documents which made it impossible 

in the short time frame contemplated by ‘McDonnell Douglas to 

locate, produce and review all responsive documents maintained 

in the Department's active and retired record holdings. 

I informed McDonnell Douglas that our preliminary survey of 

Department files included an actual review of sample documents 

so that we might better estimate the time required for review. 

In answer to a theoretical question raised, I noted that it 

would be hypothetically possible to release unclassified and 

non-privileged documents before a complete review of all 

responsive documents was completed. This statement was 

made, however, in the context of the clear objections which 

we had filed on January 31 to production of such documents. 

At no time did I indicate that an actual review was in 

fact proceeding nor.would I have done so since all we have 

done to date is a preliminary survey of the scope of McDonnell 

Douglas' request as set forth in detail above. 

21. McDonnell Douglas did allude at these meetings to 

setting priorities as to countries and dates. At no point, 

however, was the scope of the request narrowed in any way. 

As a result, this "prioritizing" would actually increase the 

burden on the Department by requiring our retrieval specialists  



search most files a second time once the priority material had 

been pulled in order to comply with the full scope of the 

sub poena. 

22. In summary; the time required to satisfy a request 

for documents is a function of many variables, including 

breadth (duration in time and geographic area, subject matter) 

of the request and the difficulty in converting the request 

to language or terms corresponding to the categories utilized 

in present and prior data indexing systems. Once identified 

as responsive to the subpoena, each document must be copied 

and indexed prior to being reviewed. 

23. In order for thé Department to fully comply with 

the subpoena filed by the McDonnell Douglas Corporation, our 

preliminary survey indicates that, at a minimum, the volume of 

material to be searched by experienced personnel would include 

422 cubic feet of current office files, 545 cubic feet of 

retired files from the period 1974-1982, and the computerized 

records systems of the Office of Munitions Control and the 

Executive Secretariat. Based on standard estimates of 3,000 

pages per cubic foot and one-half hour search time per cubic 

foot, this collection of documents would comprise some 

2,901,000 pages and would require 483 uninterrupted man-hours 

for retrieval. This search effort alone would take the 

Department several months, at a minimum, to complete. An  



— 

additional four to six weeks of uninterrupted clerical time 

is contemplated for the copying and indexing of the responsive 

material located in the search. The highly technical and 

specialized nature of the records systems to be searched, along 

with the tremendous scope of the search envisioned by the 

sub poena, indicate an effort of unprecedented proportions for 

the Department in a civil discovery motion. Experienced and 

knowledgeable officials from each of the offices involved would 

be required to conduct the search of their own records. The 

highly technical and complex matters handled by these offices 

make it impossible for the Department to reassign general 

researchers to assist with these searches. Because of budgetary 

constraints, the offices involved are staffed at the minimum 

Tevel necessary to enable them to carry out their foreign 

policy responsibilities. Compliance by the Department with 

the full scope of the McDonnell Douglas subpoena would necessitate 

a lengthy and intensive diversion of highly skilled and 

experienced personnel from their statutorily mandated functions 

and national security responsibilites. 

24. These estimates pertain solely to the time required 

for retrieval of documents from the files. In addition, all 

responsive documents must be individually reviewed. While no 

exact figure can be given as to the number of documents which 

will be identified through a search of all records mentioned 

in the subpoena, our preliminary estimate is that many   

ER SRL EA Ly 
id ne 0 dn eo + Nest th 8 a wii +



thousands of pages will be retrieved. The next phase would 

involve review in the Center for Classification 

and Declassification ("CDC"), Bureau of Administration, by 

experts in the relevant sub ject and geographical areas as to 

classification and governmental privileges. The complexities 

of this task are discussed in the accompanying Ainsworth affidavit. 

I declare under penalty of perjury that the 

foregoing is true and correct to the best of my knowledge. 

Executed this 23: day of March, 1984. 

Frank M. Machak 
  

 



  

i
 

  

37
 

  

Sai ed 2 

» LE 5 % NIN 

GLAS, CORZ0 ORATION, 
  

: 3 ean 

CUSTODIANS “OF heli 
2] . STAT E AND tess, 

  

“TRON ‘THEIUNITED STATES. DISTRICT, COURT 
R THE'DISTRICT:OF COLUMBIA. : : 
  

  

  

  

nits’ States Ke ctorfiey 
» 

: FREDDT {LIPSTED 

SLANE ror rneys,- HY i 

phopeiiats. Sears; 
CiviiiDivizion,.- 

Department of 

: Washington, 

Telenhs : 

  

  

  

  

  

   



Department in a civil discovery motion. 

Experienced and knowledgeable officials from 

each of the offices involved would be 

required to conduct the search of their own 

records. The highly technical and complex 

matters handled by these offices make it 

impossible for the Department to reassign 

general researchers to assist with these 

searches. Because of budgetary constraints, 

the offices are staffed at the minimum level 

necessary to enable them to carry out their 

foreign policy responsibilities. Compliance 

by the Department with the full scope of the 

McDonnell Douglas subpoena would necessitate 

a lengthy and intensive diversion of highly 

skilled and experienced personnel from their 

statutorily mandated functions and national 
security responsibilities. 

  
(A=273.) 

In addition to the extensive document discovery described 

above, McDonnell has conducted wide-ranging deposition discovery 

of former high level officials of the Departments of State and 

Defense. To date, McDonnell has deposed three former Deputy 

Secretaries of DeZense. Robert Ellsworth, Charles Duncan and 

Samuel Clements. The company has also deposed one Under 

Secretary of State for Security Assistance, Science and 

Technology, Lucy Wilson Benson, and two Assistant Secretaries of 

Defense for International Security Affairs, William McAulliffe 

and David McGiffert. In addition, McDonnell has, since the 

district court quashed the subpoena, deposed former Secretary of 

State Cyrus Vance. Other State and Defense Department officials 

have been deposed by McDonnell and the company has indicated an 

intent to depose even more former and present officials. These 

depcsitions have unquestionably generated cumulative testimony 

about the policies of the Ford and Carter administrations with 
ea wt 

16 -  



- Il 

CERTIFICATE OF SERVICE 

I hereby certify that I have served the foregoing Plaintiffs’ 

Opposition to the Motion of the Federal Defendant to Quash on all 

parties by mailing one copy, first class postage prepaid, to each of the 

following: 

Patricia N. Bowers, Esq. 
Assistant Attorney General of Louisiana 
Department of Justice 
234 Loyola Building, 7th Floor 
New Orleans, LA. 70112-2096 

Harold Iselen, Esq. 
Attorney, U.S. Department of Justice 
Civil Division, Room 3722 
10th & Pennsylvania Avenue, N.W. 

Washington, D.C. 20530 

Joseph DiGenova, Esq. 

United States Attorney 
Washington, D.C. 20001 

and by hand delivery to the office of Mr. Iselen. 

/ i 
NL 1, re lr 

oF 

Ld isa wry, 
  

  

 



IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

  

BARBARA MAJOR, 

"Plaintiff, 

Vv. F.S. NO. 85-0235 

DAVID C. TREEN, et al., 

Defendants. 

N
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Na
 

a
 

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MOTION OF THE FEDERAL DEPONENT TO QUASH OR, 
IN THE ALTERNATIVE, FOR A PROTECTIVE ORDER 
  

By his undersigned attorneys and pursuant to Federal Rules 

of Civil Procedure 26(c) and 45, third-party deponent Gerald W. 

Jones moves this Court to quash the subpoena issued to him in 

this case, or, alternatively, to issue a protective order -that 

the discovery not be had. The grounds for this motion are (1) 

that the information plaintiffs seek is irrelevant to their 

claim for attorneys' fees; (2) that compliance with the 

discovery request would create undue burden in that it would 

encourage other plaintiffs to seek similar information from the 

United States; and (3) that the requested discovery is 

unreasonable in view of the needs of the case and the importance 

of the issues. 

A Memorandum of Law in support of this motion is attached. 

Respectfully submitted, 

RICHARD K. WILLARD 
Acting Assistant Attorney General 

JOSEPH diGENOVA 
United States Attorney  



Birds. £2 (onde 205 
BARBARA L. GORDON 
  

Bu 
’ /) f 27s / / py ; ’ 

Jae? SL A 
  

HAROLD N. ISELIN 

Attorneys, Department of Justice 

Civil Division, Room 3722 

10th & Pennsylvania Ave., N.W. 

Washington, D.C. 20530 

(202) 633-4504 

 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 

  

BARABARA MAJOR 

Plaintife, 

Vv. F.S. NO. 85-0235 

DAVID C. TREEN, et al. 

Defendants. 

N
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No
 

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No
 

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Su
 

Sa
 

  

Now, this day of , 1985, it is hereby 
  

ORDERED that the United States' Motion To Quash Or, In The 

Alternative, For A Protective Order is GRANTED; 

and it is FURTHER ORDERED that the subpoena issued to third- 

party deponent Gerald W. Jones is hereby quashed and that the 

discovery not be had. 

  

UNITED STATES DISTRICT JUDGE 

 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 

  

BARBARA MAJOR, et al., 

Plaintiffs, 

v. F.S. NO. 85=0235 

DAVID C. TREEN, etc., et al., 

Defendants. 

N
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MEMORANDUM IN SUPPORT OF MOTION OF THE 

FEDERAL DEPONENT TO QUASH OR, IN THE 

ALTERNATIVE, FOR A PROTECTIVE ORDER 
  

PRELIMINARY STATEMENT 
  

This motion is in response to a third-party subpoena issued 

to Gerald W. Jones, the Chief of the Voting Section of the Civil 

Rights Division of the Department of Justice (hereinafter 

referred to as "Mr. Jones" or "deponent"). The subpoena was 

obtained in connection with Major v. Treen, Civ. Action No. 82- 
  

1192, Section C, a case involving a challenge to a Louisiana 

reapportionment plan. The plaintiffs, having prevailed in their 

challenge, are now seeking attorneys' fees and expenses. 

Although the Department of Justice was not a party to that 

action, the plaintiffs issued a notice of deposition and 

subpoena (Attachments A and B) to Mr. Jones in an attempt to 

obtain information regarding Justice Department efforts in three 

other voting rights cases. Specifically, the subpoena states 

that Mr. Jones will be examined concerning the following 

information: 

the number of attorney hours, the 

number of attorneys and the number of 

paralegal hours, and number of months in  



active litigation for each of the following 

three cases: 

Sumtey County, South Carolina v. U.S. 

Smith v. Busbee 

State of South Carolina v. U.S. 

  

  

  

The plaintiffs acknowledge that they seek this information in an 

effort "to present evidence to the Court about the number of 

hours expended in what [they] contend to be comparable 

litigation." Letter from plaintiffs' counsel, Larry T. Menefee, 

to Gerald Jones (April 8, 1985) (Attachment C). 

In seeking to quash this subpoena, Mr. Jones and the 

Department of Justice do not take a position on the merits of 

the underlying litigation. Rather, they oppose the discovery 

because it is intrusive, unnecessary, and burdensome. In 

addition, the Department of Justice objects to the discovery on 

the ground that, if such information is made available, the 

Department of Justice might well be inundated with similar third- 

party requests from litigants who are seeking fees in cases 

that, however tangential, bear some resemblance to litigation 

conducted by Department of Justice. For example, under 

plaintiffs' theory, Department of Justice time records could be 

relevant to private party litigation involving claims in such 

areas as antitrust, administrative procedures, enforcement of 

civil rights, and even breach of contract. Accordingly, the 

Department of Justice urges this Court to quash the subpoena and 

issue a protective order that no discovery be had.  



ARGUMENT 

THIS COURT SHOULD QUASH THE SUBPOENA AND 
ISSUE AN APPROPRIATE PROTECTIVE ORDER. 
  

A. The Federal Rules Of Civil Procedure 

Authorize This Court To Grant Relief 

From Needless And Burdensome Discovery. 
  

Although the subpoena at issue purports to be issued 

pursuant to Federal Rule of Civil Procedure 30(b)(6), third- 

parties can only be subpoenaed pursuant to Rule 45. On its face 

the subpoena seems to request only testimony; however, in view 

of the subject matter, it is likely that plaintiffs will also 

want any documents relating to such subject matter. Thus, to 

the extent the subpoena is construed as a subpoena duces decum, 

this Court has authority pursuant to Rule 45(b) to "quash or 

modify the subpoena if it is unreasonable or oppressive 

Fed. R. Civ. P. 45(b). Moreover, although Rule 45(d), which 

concerns subpoenas for taking depositions, does not contain a 

provision authorizing a motion to quash, it is beyond dispute 

that a court has the power under Rule 26(c) to grant relief from 

unnecessary and burdensome discovery. Cf. 9 C. Wright & A. 

Miller, Federal Practice and Procedure § 2453 (1971) ("The 

court . . . has ample power to grant relief from such a subpoena 

[i.e. issued under Rule 45] on a motion for a protective order 

under Rule 30(b)."). 

Under Rule 26(c), a court may issue a protective order that 

discovery not be had to protect a person from, inter alia, undue 

burden and oppression. Moreover, the rule explicitly provides 

that discovery shall be limited if a court determines that the  



discovery is unduly burdensome, taking into account the needs of 

the case and the importance of the issues at stake in the 

litigation. Fed. R. Civ. P. 26(b)(1l), 256(g).' Here, when the 

" needs of the party seeking the discovery are weighed against the 

burden both to the individual and the government, it becomes 

clear that such discovery should not be permitted. 

B. The Subpoena Is Burdensome And Of Little Relevance.   

It is well-established that a court can deny discovery 

where the information sought is largely, if not wholly, 

irrelevant to a party's claims and where the attendant burden to 

the deponent is great. See generally 8 C. Wright & A. Miller, 
  

Federal Practice and Procedure § 2037 (1971); cf. Westminister   

Investing Co. v. G.C. Murphy Co., 434 F.2d 521 (D.C. Cir. 
    

1970) (party was not entitled to take depositions of District of 

Columbia officials where plaintiff could prove no set of facts 

that would entitle it to judicial relief). Here, plaintiffs 

cannot establish that the discovery they seek is sufficiently 

relevant to their claims so as to overcome the significant 

burden that their discovery poses. At the outset it is 

important to stress that the the Voting Section that Mr. Jones 

heads did not participate in the underlying litigation in 

Louisiana. Thus, plaintiffs seek information relatin not to 

time spent in the actual litigation that gave rise to the claim 

for attorneys' fees but rather in other cases. The only 

connection of those cases to the instant case is that they all  



involved challenges to reapportionment plans. This, however, is 

too slender a connection to justify the discovery sought. While 

the three cases about which plaintiff seeks information all 

involved the Voting Rights Act, and thereby raised some similar 

legal issues, the similarities end there. Because a voting 

rights case turns largely on the specific aspects of the 

reapportionment plan and the voting demographics of the state or 

county involved, each of the cases about which plaintiffs seek 

information involved substantially different factual issues. 

Thus, even if plaintiffs were to obtain the information 

requested, it wquld be of little relevance to their claims as to 

the hours they devoted to their particular reapportionment 

case. 

In view of this almost total lack of relevance, it would be 

unfair and burdensome to subject Mr. Jones and DOJ to third- 

party discovery. The information plaintiffs seek does not 

consist simply of a few facts about which Mr. Jones has first~- 

  

At least one court has suggested that a higher showing of 

relevance might be required to justify third-party discovery: 

It is not at this point clear whether the 

same broad test for relevance . . . will be 

utilized with respect to third parties. 

There appear to be quite strong 

considerations indicating that the discovery 

would be more limited to protect third 

parties from harassment, inconvenience, or 

disclosure of confidential documents. 

Collins and Aikman Corp. v. J.P. Stevens & Co., 51 F.R.D. 

219, 221 (BD. s.C. 1971). 
   



hand knowledge. Rather, plaintiffs seek to force the Justice 

Department to generate various time records and insure their 

accuracy. Thus, in order to comply with the subpoena, Mr. Jones 

and other Justice Department employees will have to expend 

considerable time, money, and effort. And yet, at the end of 

such an expenditure, plaintiffs will be left with evidence that 

may be inadmissible, and that in any event is of dubious 

probative value. Accordingly, plaintiffs cannot make the 

requisite showing of need so as to justify the considerable 

intrusion on the time and resources of Mr. Jones and the Justice 

Department. 

Permitting This Third-Party Discovery of Justice 

Department Time Records Could Well Result In 

Numerous Similar Requests That Would Require The 

Expenditure Of Significant Department Resources. 
  

Permitting third-party discovery of the type sought here is 

particularly unwarranted in that it could well encourage similar 

requests. As this Court is well-aware, the Justice Department 

litigates in virtually every area of the law, many of which give 

rise in some circumstances to claims for attorneys fees. If the 

Court permits discovery of Justice Department time records, in 

cases where the Justice Department is not even a party, there is 

a strong likelihood that it will be opening up a Pandora's Box 

of discovery requests. As noted, responding to such requests 

involves a significant expenditure of time, money, and effort -- 

resources which could and should be devoted to other more 

pressing matters.  



This very point was recently recognized in Reynolds Metals 
  

Company v. Crowther, 572 F. Supp. 288 (D. Mass. 1982). There, 

the plaintiff sought to compel to employees of the Occupational 

Safety and Health Administration ("OSHA") to testify concerning 

information acquired during pursuit of their official duties. 

In holding that the employees could not be compelled to testify, 

the court states: 

Because of the nature of the programs it 

administers and enforces, OSHA is 

particularly vulnerable to the demands of of 

private parties seeking information acquired 

as a result of official investigations 

.If OSHA employees were routinely permitted 

to testify in private civil suits, 

significant loss in manpower hours would 

predictably result. 

Id. at 290. Similarly, a "significant loss in manpower hours 

would predictably result" here, if third-party discovery of 

Justice Department employees is permitted in the area of 

attorney fee litigation. 

Moreover, the discovery is particularly unwarranted in view 

of the needs of the case and the issues involved. Here, the 

primary issue for plaintiffs is the time they actually expended 

on their case. Plaintiffs can easily provide such information 

from their own time records and affidavits. In addition, the 

court in Louisiana, which observed first-hand the work of the 

attorneys, is well-able to determine the reasonableness of the 

claimed hours. Finally, although the issue of their fees is 

obviously important to plaintiffs' counsel, the issue itself =-- 

appropriate fees in a reapportionment case -- cannot be said to  



be of such importance that it justifies opening the door to the 

type of third-party discovery that could well lead to the 

significant burden on the agency with which the court in 

Reynolds was concerned. This concern, along with the 

considerable intrusion into Justice Department internal affairs 

and the substantial burden on Mr. Jones that are created by the 

discovery, strongly support a finding that the third-party 

discovery should not be permittéd. 

CONCLUSION 

For the reasons stated above, this Court should quash the 

subpoena and issue a protective order that discovery of 

Department of Justice employees not be had in connection with 

plaintiffs' claims for attorneys' fees. 

Respectfully submitted, 

RICHARD K. WILLARD 
Acting Assistant Attorney General 

JOSEPH diGENOVA 
United States Attorney 

Barbar 2. Gordyn / ANS 
BARBARA L. GORDON 

tad) 4 BL 
HAROLD N. "ISELIN 

  

  

Attorneys, Department of Justice 
Civil Division, Room 3722 

10th & Pennsylvania Ave., N.W. 
Washington, D.C. 20530 

(202) 633-4504  



DC'S (Rev. 10/82) © DEPOSITION SUBPOENA TF. S. 85-0235 
  

  

United States Bistrict Court |*™" District of Columbia 
DOCKET NO. ; : CAR2-11a2 

BARBARA MAJOR USha Eastern Distnet of Lowsiamna, Section 
  

TYPE OF CASE 

V. XE civiL 0 CRIMINAL 
  

SUBPOENA FOR 

DAVID C. TREEN, etc., et al. WRXPERSON 0 DOCUMENTI(S) or OBJECT(S)   
  

TO: Gerald W. Jones, Esq. 
Chief, Voting Section, United States Department of Justice 
Washington, D.C. 
  

YOU ARE HEREBY COMMANDED to appear at the place, date, and time specified below to 
testify at the taking of a deposition in the above-entitled case. 
  

PLACE DATE AND TIME 

NAACP Legal Defense Fund 
806 15th Street, N.W., Suite 940 April 25, 1985 
Washington, D.C. 

12:00 Noon       
  

  
  

examined concerning the following information; the number of attorney 
hours, the number of attorneys and the number of paralegal hours, and 
number of months in active litigation for each of the following three 
cases: 

Sumter County, South Carolina v. U.S. 
  

Smith v. Busbee 
  

State of South Carolina v. U.S. 
  

O Please see additional information on reverse     
  

Any subpoenaed organization not a party to this suit is hereby admonished pursuant to Rule 30 (b) (6), Federal Rules of Civil 
Procedure, to file a designation with the court specifying one or more officers, directors, or managing agents, or other persons who 

consent to testify on its behalf, and shall set forth, for each person designated, the matters on which he will testify or produce 
documents or things. The persons so designated shall testify as to matters known or reasonably available to the organization. 

  

U.S. MAGISTRATE (2) OR CLERK OF COURT DATE 

JAMES FE. DAVEY 

  (BY) DEPUTY CLERK 11APR 1955 

  
    ATTORNEY'S NAME AND ADDRESS 

6 Larry T. Menefee, Esq. 
This subpoena is issued upon application of the: Blacksher, Menefee & Stein, P.A. 

405 Van Antwerp Bldg., P. 0. Box 1051 
XX Plaintiff 0 Defendant 0 U.S. Attorney Mobile, Alabama 36633   
  

(1) If not applicable, enter ‘‘none."’ 

(2) A subpoena shall be issued by a magistrate in a proceeding before him, but need not be under the seal of the court. (Rule 17(a), Federal Rules of 

Criminal Procedure.) > 

Attachment A   
  

 



  

IN THE UNITED STATES DISTRICT COURT FOR THE 

FOR THE EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, et al., 

Plaintiffs, 

Civil Action No0.82-1192 
Section C 

DAVID C. TREEN, etc., et al. 

Defendants. 

NOTICE OF DEPOSITION 
  

Patricia N. Bowers, Esq. 
Assistant Attorney General 
State of Louisiana 
Department of Justice 
234 Loyola Bldg., 7th Floor 
New Orleans, Louisiana 70112-2096 

Pursuant to Rule 30(b)(6), Federal Rules of Civil Procedure, 

plaintiffs in the above-styled cause will take the deposition of 

Gerald W. Jones, Chief, Voting Section, United States Department 

of Justice, or his designee knowledgeable of the subject matter 

described below. The deposition will be taken on Thursday, April 

25, 1985, at the offices of the NAACP Legal Defense Fund, 806 

15th Street, N.W., Suite 940, Washington, D.C., commencing at 

12:00 Noon, before an officer duly authorized to take 

depositions, and will continue from day to day until completed. 

Attachment B  



Mr.Jones or his designee will be examined about the number of 

hours of attorney time, number of hours of paralegal time, number 

of attorneys and number of months in active litigation for each 

of the following three cases: 

Sumter County, South Carolina v. U.S. 
Smith v. Busbee 

State of South Carolina v. U.S. 

  

  

  

Under Rule 30(b)(6) of the Federal Rules of Civil Procedure, 

the deponent is reminded of its duty to designate the person or 

persons who will testify to such matters. 

, 2 A 
Respectfully submitted this J day of April, 1985.   

BLACKSHER, MENEFEE & STEIN, P.A. 
405 Van Antwerp Bldg. 
P. 0. Box 1051 
Mobile, Alabama 36633 
(205) 433-2000 

—/ A / 
BY: V4 mati bez... { = 1 s 

LARRY T. /MENEFEE 
  

WILLIAM P. QUIGLEY 
STEVEN SCHECKMAN 
R. JAMES KELLOGG 
QUIGLEY & SCHECKMAN 
631 St. Charles Avenue 
New Orleans, Louisiana 70130 
(504) 524-0016 

STANLEY HALPIN 
2206 W. St.Mary 
Lafayette, Louisiana 70506 
(318) 367-2207  



LANI GUINIER 
LEGAL DEFENSE FUND 

99 Hudson Street 

16th Floor 
New York, New York 10013 
(212) 219-1900 

ARMAND DERFNER 
5520 33rd Street, N.VW. 
Washington, D.C. 20015 
(202) 244-3151 

Attorneys for Plaintiffs 

CERTIFICATE OF SERVICE 
  

I nereby certify that on this "day of April, 1985, 

a copy of the foregoing NOTICE OF DEPOSITION was served 

upon the following counsel of record: 

Patricia N. Bowers, Esq. 

Assistant Attorney General 

State of Louisiana 
Department of Justice 

234 Loyola Bldg., 7th Floor 

New Orleans, Louisiana 70112-2096 

and was properly addressed and deposited in the United States 

Mail, postage prepaid. 

 



BLACKSHER, MENEFEE & STEIN, P.A. 

ATTORNEYS AT LAW 

40S VAN ANTWERP BUILDING 

P. O. BOX 1051 

MOBILE. ALABAMA 36633 

JAMES U. BLACKSHER TELEPHONE 

LARRY T. MENEFEE - (205) 433-2000 

GREGORY B. STEIN : April 8, 1985 
WANDA J COCHRAN 

Gerald W. Jones, Esq. 
Chief, Voting Section 
United States Department of Justice 
Civil Rights Division 
HOLC Bldg., 320 1st Street, N.W. 
Washington, D.C. 20534 

Re: Major v. Treen 
  

Dear Mr. Jones: 

We have just recently noticed your deposition in the above- 

referenced litigation and you should have by now or will 
in the near future receive a subpoena for attendance at that 

deposition. The deposition is scheduled to be taken Thursday, 

April 25, 1985, at 12:00 Noon at the offices of the NAACP 

Legal Defense Fund, 806 15th Street, N.W., Suite 940 in 

Washington. A copy of the notice is enclosed. 

As I am sure you know, the Major v. Treen litigation was the 

congressional reapportionment case in Louisiana. The only 

issues remaining concern attorneys' fees and expenses. We 
wish to be able to present evidence to the Court about the 

number of hours expended in what we contend to be comparable 

litigation. There are relatively few cases where records of 

attorneys' time have been kept in the area of voting rights. 

That is the reason we have noticed your deposition. 

  

I would be very happy to avoid the time and expense for all 

of us if we could work out a short affidavit, based on the 

records of the Department of Justice which would be admissible 

in Court. We contend that the number of hours expended in 

other litigation is relevant to the Court determining the 

reasonableness of plaintiffs' claim in Major v. Treen. If 

you would like to discuss the preparation of such an affidavit, 

please contact me. 

  

Joc 32 © 

106 —ST7-98 

Attachigen@éc /f- ial  



Gerald W. Jones, Esq. 
April 8, 1985 
Page Two 

Assuming that I correctly understand the procedures outlined 

in Title 28 C.F.R. Section 16.22, in order to save time I am 

sending a copy of this letter to the U.S. Attorney for the 

District of Columbia. 

Best regards. 

Sincerely, 

BLACKSHER, MENEFEE & STEIN, P.A. 

Edad T. Ménefee 

LTM:pfm 
Encl. 
cc: Joseph E. diGenova, Esq. 

U. 8S. Attorney 
District of Columbia 

 



CERTIFICATE OF SERVICE 
  

I hereby certify that third-party deponent's Motion To Quash 

Or, In The Alternative, For A Protective Order, memorandum in: 

support thereof, and proposed order were hand delivered or sent 

r 
by first class mail, postage prepaid, this 23 day of April, 

1985, to: 

Mr. Larry T. Menefee 
Blacksher, Menefee & Stein, P.A. 

405 Van Antwerp Building 
Post Office Box 1051 
Mobile, Alabama 36633 

Mr. Armand Derfner 

Suite 400 

1301 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

Jarl) fhe 
HAROLD N. ISELIN