Kentucky Law Journal Kentucky Law Journal

Volume 43 Issue 3 Article 1

1955

Discovery Against the Government of Military and Other Discovery Against the Government of Military and Other

Confidential Matters Confidential Matters

Charles R. Gromley University of Nebraska

Follow this and additional works at: https://uknowledge.uky.edu/klj

Part of the Civil Procedure Commons, and the Military, War, and Peace Commons

Right click to open a feedback form in a new tab to let us know how this document benefits you. Right click to open a feedback form in a new tab to let us know how this document benefits you.

Recommended Citation Recommended Citation Gromley, Charles R. (1955) "Discovery Against the Government of Military and Other Confidential Matters," Kentucky Law Journal: Vol. 43 : Iss. 3 , Article 1. Available at: https://uknowledge.uky.edu/klj/vol43/iss3/1

This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.

Discovery Against the Government of Military andOther Confidential Matters

By CnmtLEs R. Gnomi"*

No one has more eagerly resorted to the discovery machineryof the Federal Rules of Civil Procedure1 than the government;no one has been more grudging in making it reciprocally avail-able. Viewed against traditional notions of fair play, it is notsurprising that government attempts to thwart the efforts of aplaintiff to obtain disclosure have been judicially labeled as an"unjust and tyrannical exercise of power."' The mounting volumeof litigation in which the government is involved, coupled withthe increasing tendency to suppress information under the guiseof national security, presents a problem of growing importance inthe relationship between state and citizen. When the govern-ment is confronted by some industrial giant, there is relativeequality in such litigation. But too often, it is the little man whois overwhelmed by the government's vast resources. For example,injustice may be done to litigants of small means prosecutingclaims under the Federal Tort Claims and Suits in Admiralty Actsif the government withholds the written statements of witnessesto the accident. Government consent to suit in such cases maybecome meaningless if linked with a right to suppress facts in itspossession.

In the conduct of their affairs the various executive depart-ments and administrative agencies acquire much information-reports, documents, records of all kinds-which may be useful tolitigants in actions against the government. The public interestin a full and fair hearing of all disputes between individuals andbetween individuals and the state calls for the production and dis-

* B.S., Kent University; LL.B., University of Kentucky; candidate for LL.M.,Georgetown University in June, 1955. Member of Kentucky Bar. Teaching As-sociate, University of Nebraska College of Law, Lincoln.

'Fim. R. Crv. PRoc. 26-37. This article deals with two of the pre-trial instru-ments of discovery: the subpoena-deposition procedure under Rules 26 and 45, anddiscovery under Rule 34. Facts are also elicited and the issues narrowed beforetrial by admissions, interrogatories, and the pre-trial conference. While the prob-lems discussed in the article may in some instances involve disclosure at trial aswell as pre-trial discovery, emphasis is upon the latter area.

U.S. v. General Motors Corp., 2 F.R.D. 528, 530 (1942).

KENTUCKY LAw JouINAr

closure of all evidence relevant to the issues in dispute. This pub-lic interest calls for the production and disclosure of relevantevidence within the control of executive departments and ad-ministrative agencies. The evidence sought, however, may be ofsuch a nature that its production and disclosure would be inimicalto other public interests. When it is determined that the latterinterests should prevail, the evidence is said to be privileged.Should the records contain state,3 military,4 or diplomatic5 secretsthey would unquestionably be privileged and not subject to dis-covery. There the interest of the individual litigant must bow tothe superior interest of the public welfare. Many situations arise,however, which lie within the fringe area, making it extremelydifficult to determine whether the public interest calls for theproduction of government data or for the non-disclosure of suchevidence as privileged. Reynolds v. United States presents atypical situation.6

In that case, a military aircraft on a flight to test secretelectronic equipment crashed and three civilian engineers aboardwere killed. Their widows sued the United States under theTort Claims Act7 and moved under Rule 34 of the Federal Rulesof Civil Procedure for production of the Air Force's accident in-vestigation report and statements made by surviving crew mem-bers during the investigation. The district court found good causeand ordered the defendant to surrender the documents. The At-torney General and the Secretary of the Air Force thereuponentered a formal claim of privilege, asserting that the materialcould not be made available without prejudice to national se-curity, and without hampering the improvement of safety in flyingand the development of very technical and secret military ap-paratus. However, the government did offer to produce the sur-viving crew members for examination by plaintiffs and to permitthem to testify as to all matters except those of a classified nature.After an extended hearing, the court ordered the records producedfor judicial examination to determine whether the disclosurewould violate the government's privilege against disclosure of

3 Totten v. United States, 92 U.S. 105 (1875).Federal Life Insurance Co. v. Holod 30 F Supp. 713 (1940).

'Kessler v. Best, 121 Fed. 439 (19085.'345 U.S. 1 (1953).128 U.S.C., secs. 1346, 2671 et seq. (1946).

DiscovERY AGAINST THE GOVERNMENT

matters involving the national security and public interest. Thegovernment refused to comply and the court therefore ruledthat, under the authority of 87(b) (2) (Fed. R. Civ. P.), the issueof negligence on the part of the Air Force had been established.Judgment was entered for plaintiffs" and on appeal the Court ofAppeals for the Third Circuit affirmed the decision.' In a 6 to 8decision, the Supreme Court reversed, holding that where neces-sity for production of classified government material is somewhatuncertain, a formal claim of privilege by a department head ongrounds of national security prevents examination by the courtand in such a case no penalty can be attached to the withholdingof the documents.

The action of the District Court in presuming negligenceagainst the government was said by the plaintiffs to be authorizedby Federal Rule 87(b). The Supreme Court held, however, thatthis argument overlooked the fact that 87(b) must be read in thelight of Federal Rule 84, which prevents discovery of privilegedevidence. The requirement of Rule 84 that "good cause" beshown is strictly construed in these cases to prevent harassmentof government agencies and any undue interference with theefficient operation of the administrative organization. Generally,as against the government, good cause must be founded on clearnecessity, such as a strong indication that the information soughtis in the complete control of the government, or that it is highlydifficult, if not impossible, to obtain elsewhere. 10 Since our judicialsystem remains adversary, the requirement of a showing of goodcause seems a proper one. To demand that an opponent surrenderinformation gathered through diligent effort would be uncon-scionable, unless it be necessary procedure designed to guaranteea just result in litigation. The fact that the government is thedefending party should not cause relaxation of the requirement.

With regard to air crash tort cases such as Reynolds, however,it is submitted that the requirement of showing good causeshould not be strictly construed. The instrumentality involvedin the accident is exclusively in the possession and control of theAir Force. The military investigating body is certain to be onthe scene shortly after the accident, and the investigation and re-

8Brauner v. U.S., 10 F.R.D. 468 (E.D. Pa. 1950)." Reynolds v. U.S., 192 F. 2d 987 (1951)."°Evans v. U.S., 10 F.R.D. 255 (1950).

KENTUcKY LAW JouaNAL

port is likely to be completed before the victim is in a positionto understand what has occurred, or before the next of kin havebeen notified. Furthermore, military expediency will generallydemand security guard of the area, immediate demolition of thewreckage, and reassignment of the surviving personnel. Thevictim is denied the opportunity of determining the circumstancessurrounding the accident, and is placed in a most precarious posi-tion, since that information will be vital to his case. Depositionsor interrogation of the survivors, providing they can be reachedmany months after the accident, cannot substitute for the in-formation contained in the report. It may well be that withoutthe report data, or the right to examine or have experts examinethe site of the crash, the plaintiff will be unable to establish eventhe preliminary aspects of his cause of action. In the Reynoldscase, plaintiffs argued that the memory of the witnesses was notfresh, since 18 months h.d elapsed, and that the only reliableevidence would be the aircraft accident investigation report.This, however, was evaluated as "dubious necessity" because offailure to determine what could be learned from the survivors.

ANALYSIS OF T1HE PROBLEM OF GOVERNMENT PRIVMEGE

The basis of the claim of privilege by the government is three-fold: (a)- specific statutory immunity; (b) state secrets, militaryor diplomatic; and (c) policy. The latter has sometimes beentermed the "housekeeping" privilege, in that it is grounded on thepremise that disclosure in a given case would hamper perform-ance by a government agency of its greater duty to serve theoverall public interest

(A) Statutory Immunity. The government has repeatedlyclaimed that Section 22 of Title 5 of the United States Code givesa general statutory immunity to the documents of a governmentagency, whenever it has promulgated regulations prohibiting dis-closure." Section 22 reads as follows:

The head of each department is authorized to prescriberegulations, not inconsistent with law, for the govern-ment of his department, the conduct of its officers andclerks, the distribution and performance of its business, and

"U.S. v. Schine Chain Theaters, 4 F.R.D. 108 (1944); Walling v. CometCarriers, 8 F.R.D. 442 (1944).

DiscovEY AGAINST TRE GOVERNMENT

the custody, use and preservation of its records, papers, andproperty appertaining to it.

Under the authority of this statute the various departments ofthe government have adopted regulations controlling the produc-tion and disclosure of department records when sought by courtprocesses. The regulations of the Department of Justice in thisregard are typical. They provide that when an official or em-ployee of the department is served with a subpoena to producerecords of the department, he will appear in court, produce acopy of the regulation, and respectfully decline to produce therecords.1 -

The contention of the government that Section 22 authorizesfederal agencies to claim immunity from discovery ignores thephrase "not inconsistent with law." If regulations promulgatedunder Section 22 cannot be "inconsistent with law," they cannotbe "inconsistent with" the Rules of Civil Procedure, which havethe force of law.13 The discovery rules do not exempt the UnitedStates. The authority to prescribe regulations "not inconsistentwith law" therefore does not confer an administrative power tocarve out an exemption from rules having the force of law anymore than from the coverage of any other statute. Furthermore,under the doctrine of statutory construction, Congressional ap-proval of the Rules exhibits an intention to withhold governmentalimmunity from discovery. The exemption expressly granted theUnited States from certain of the Rules was withheld in the dis-covery provisions. The pattern of express exemption thus estab-lished precludes the possibility of implied exemptions elsewhere.The omission of an express exemption in the discovery rules musttherefore be considered a studied omission which would be madefutile if Section 22 were interpreted as conferring axi exemption.Lacking express provision for absolute executive privilege, theRules are equivalent to a Congressional adoption of the view thatthere is none. As the government has recognized, most courtsfollow this interpretation, and insist on their right to determinethe scope of the government privilege.14 The express requirementas to regulations promulgated not being inconsistent with law,

Attorney General, Order No. 8229 (May 2, 1939)."C. J. Wieland & Son Dairy Products Co. v. Wickard, 4 F.R.D. 250, 252

(1945).'Pacific-Atlantic S.S. Co. v. U.S., 175 F. 2d 632 (1949).

KENTucKY LAw JouRNAL

has been interpreted to mean that no new privilege exists, andthe Supreme Court apparently accepts this view in the Reynoldscase.

(B) State Secrets. In the contemporary state of internationalaffairs, where there is always a real danger of a serious interna-tional dispute, the security of the state requires efficient armedforces and diplomatic services. To achieve this efficiency it isnecessary that all possible precautions be taken to prevent certainmatters from becoming known to other powers. A public interestdemands that such matters be beyond the reach of court processesfor production or disclosure. It would be extremely difficult, ifnot impossible, to draw any hard and fast line to set off matterswithin this category. Plans for range-finders,15 the plans of a sub-marine, 0 a contract between the United States and a commissarycompany at an atomic energy plant, 7 and drawings of armor-piercing projectiles-' have been held to be privileged from pro-duction or disclosure. In the final analysis, the decisions are basedon a weighing of what justice demands in the individual case andthe interests involved in protecting national security.

A basic factor in all issues involving state secrets is the natureof the evidence sought. The nature and quantity of public in-terests involved will vary as this factor varies. The other basicfactors present are the needs of the litigants, and the harm whichmight result from disclosure. The quality or degree of interestsinvolved will vary as these factors vary.

In the Reynolds case, the government took the position thatthe official accident investigation report and written statementsof the survivors could not be made available without prejudiceto national security. It is somewhat uncertain whether or not anAir Force accident,report, stating testimony as to circumstancessurrounding the accident and containing data gleaned from exam-ination of the wreckage is likely to contain confidential informa-tion. Consequently, it would seem that the order of the DistrictCourt directing the government to produce the records for exami-nation was not without justification. Faced by a claim of secrecyin the public interest, the court could adequately protect the na-

"Pollen v. U.S., 85 Ct. Cl. 678 (1937).'" In re Grove, 180 Fed. 62 (1910).'U.S. v. Haugen, 58 F. Supp. 436 (1944).'8 Firth Sterling Steel Co. v. Bethlehem Steel Co., 199 Fed. 353 (1912).

DiscovERY AGAINST THE GOVUNAMNT

tional security by making an independent personal in cameraexamination of the documents in question. In that manner thecourt would not abdicate to an executive department official itsfunction of determining the admissibility of evidence in a lawsuit. It may safely be assumed the judiciary would weigh care-fully the public interest prior to issuing a discovery order, whichmay have the effect of publicizing confidential government rec-ords. Situations will undoubtedly arise in which the judge, facedwith a wealth of material of a complicated and technical nature,would not be competent to decide whether such matter need beclassified as secret. Under those circumstances, the judge will beforced to rely almost wholly on the recommendation of the execu-tive department official in charge of the records as to the con-fidential matter contained therein. The independent judicial ex-amination, however, will assure the litigant of some check onarbitrary government refusal to produce documents.

The decision in Reynolds that the claim of privilege by thehead of the department will be conclusive where the necessity forthe production of the documents is dubious and there is a pos-sibility that they contain state secrets, is a step in the direction ofthe English view that the mere formal claim of privilege by theproper official will establish it conclusively. 9 The majority, inanalogizing this privilege to that against self-incrimination andarguing that disclosure to the judge would expose the very thingbeing protected, has ignored the fundamental distinction betweenthe two. Whereas with incriminating matter there is the dangerthat a judge might feel impelled to disclose information regardingthe commission of a crime, with state secrets he would be mo-tivated by the welfare of the nation as well as by duty to remainmute. Unless the Supreme Court considers members of the ju-diciary less trustworthy than those of the executive, there is noreason why the judge cannot examine the documents ex parte.

By the Reynolds decision, the Court has, in practical effect,relinquished to an executive officer discretion to determinewhether government documents shall be produced in the courts.The dangers of such an approach are manifold. No substantialbarrier now exists to the imposition, under the guise of "statesecrets," of the doctrine of "offi6ial secrets" heretofore steadfastly

"Duncan v. Cammell, Laird & Co., A.C. 624 (1942).

KENTUcKY LAW JOURNAL

rejected by the courts.20 In Reynolds for example, the originalclaim of privilege by the government was that the disclosure ofthe report would be detrimental to the morale of the departmentinvolved. This claim was properly rejected by the district court,which was not disapproved by the appellate court. Yet as soon asthe department re-phrased its refusal in terms of a formal claimof state secret privilege, under the Supreme Court's formula suchclaim was sufficient to withhold the documents, although thecourt received no additional enlightenment on the basis there-for, or why if a secret was in fact involved, such claim was notmade originally.

In addition, such an approach makes possible the suppressionof material merely because it is unflattering to important officials.These dangers are particularly apparent today when there is anoticeable tendency for officials to apply "secret," "confidential"and "classified" stamps to government papers indiscriminately.

It is submitted that in suits under the Federal Tort Claims Act,even if the government is asserting a valid claim of the statesecret privilege, it would be more equitable to allow judgmentfor plaintiff, at least in those cases where there is a reasonableprobability that the withheld material would establish the gov-ernment's negligence. In a criminal prosecution, the governmentmust forego its privilege or allow a directed verdict for de-fendant.21 The same reasoning could be applied to protect theindividual plaintiff here.22 Although some unmerited claimswould undoubtedly be allowed, this danger can be mitigated byinsisting upon a substantial showing of probable negligence. Atany rate, as the loss must fall somewhere, justice would be betterserved by imposing it upon the government, which is in a betterposition to bear and distribute this cost of preserving necessarysecrets.

(C) Considerations of Policy. The usual claim of governmentprivilege is not that of state secret, but rather a right of the execu-tive branch of the government to refuse to disclose to outsiders

O'Neill v. U.S., 79 F. Supp. 827 (1948).' U.S. v. Beekman, 155 F. 2d 580 (1946).'There is a basis for distinguishing the civil from the criminal cases. Whereas

Rule 84 of the Rules of Civil Procedure specifically exempts privileged documentsfrom discovery, there is no corresponding exemption in Rule 16 of the Rules ofCriminal Procedure.

DiscovEmY AGAINST THE GOVMMNT

the results of its housekeeping investigations.2 3 The contentionstems from the concept of separation of powers inherent in theconstitutional organization of our government. From its incep-tion each branch,- legislative, executive and judicial, has soughtto operate in its own sphere and to refrain from infringing uponthe independent provinces of the others. True, this arbitrary or-ganization has not been consistently maintained in practice, andcould not be even if desired. Yet, the courts early decided not tointerfere with discretionary acts of executive officials.24

Congress admittedly has the power to consent to allow suit tobe brought against the United States, the doctrine of separationof powers notwithstanding.25 It has been argued that the powerto compel executive officials to produce documents in their con-trol must follow from the broader authority in the legislative towaive sovereign immunity from suit. The proponents of such atheory fail to recognize a fundamental distinction between thegreater and lesser power. Practically, if Congress had not theprerogative to authorize actions against the United States, noprivate litigant could seek redress for wrongs committed underthe aegis of government. The policy underlying the extensionof Congressional power to alleviate the harsh common law rulethat the sovereign cannot be sued without its consent is clear.That is not to say, however, that the same policy may underliean extension of power to one of three supposedly equal arms ofgovernment to impinge on the rights of the others. The fact thatCongress can require the government as an entity to submit tosuit need not compel the inference that Congress and the courtshave the power to force the executive department to surrenderexecutive records. Especially should that be true where there isnothing in the Constitution or statutes which suggests that Con-gress has sought to exercise an inferred power to compel produc-tion of executive documents in the case of tort suits against theUnited States. Where Congress has desired to express a policy inregard to executive records, it has known how to do so."' Absenceof a direct expression of this policy in the Federal Tort ClaimsAct would appear to indicate that Congress was satisfied with or

= 8 WiGMoRE, EViDENcE, see. 2378a (3rd ed. 1940).- See Aaron Burr's Trial, I Robertson's Rept. 117 (1875); Marbury v. Madi-

son, 1 Cranch 137 (1803).'Bank Line v. U.S., 76 F. Supp. 801 (1948); O'Neill v. U.S., iupra note 20.

See 28 U.S.C., see. 2507; 49 U.S.C., sec. 581.

KENTucxy LAw Jouiux,.

felt powerless to change existing executive discretion to refuse tosubmit official records.

From a policy standpoint, there is implicit in the government'sanalysis the premise that administrators are more qualified byvirtue of their expertise to judge whether publication of a par-ticular document would be detrimental to the public interest.This assumes that it is impossible to brief the court adequatelyon such matters-a dubious assumption. The problems involveddo not transcend the vast range of complexities which are con-stantly submitted to the courts. Patent cases, for example, illus-trate the frequent judicial determination of technical issues ofgreat moment.

Even more serious than the possibility of over-complexity,however, is the consideration that the national security will bethreatened if federal agencies are not free to withhold informa-tion altogether. The assumption here is that protection of gov-ernment secrets cannot be safely entrusted to the judiciary-thata judge will be less zealous than an administrative officer in pre-serving official secrets. That assumption is at war with the uniquerespect the judiciary enjoys. Then too, private industry has oftenbeen compelled to disclose secret processes and the like and torely for protection on the court's discretion." Disclosure to thecourts does not spell widespread disclosure; if the documentsare in fact privileged, they will be withheld by the courts fromprivate litigants and the general public.

Insistence that the government disclose relevant documentsto the court is not to disparage administrative expertise. Normallyonly preliminary jurisdiction and not finality is claimed for ad-ministrators, and this in a case where the agency is an arbiterwithout a stake in the outcome. If an administrative agencycould be relied upon to weigh wisely and impartially the totalpublic interest against its own convenience, it might then besupererogatory to insist on judicial review. But one must con-sider the matter in the framework of administrative realities. Thediffusion of power in great agencies often lodges actual responsi-bility in the fourth or fifth tier of the administrative hierarchy.In a great many cases the claim of executive privilege is a resultof mere inertia and convenience. Subordinate officers acting

' E. I. duPont de Nemours Powder Co. v. Masland, 244 U.S. 100, 103 (1917).

DiscovEuY AGAINST THE GOVEIINMNT

under general regulations rarely consider merits when faced withdemands for documents. Busy with the pressure of routine, theinferior officer has not the time carefully to consider the equitiesof the particular case. Many times he has little comprehensionof the ramifications of his action in approving or disapproving thesurrender of documents to the court. His superiors, especially inthe military, pressed with matters of national importance, areprone to accept his decision without questioning its propriety.Thus, the claim of privilege develops. There are few situationswhere it is justified.

Furthermore, the lawyers who litigate the case for the depart-ment not infrequently are as set on winning at all costs as counselfor a private litigant. To make the head of a department theultimate arbiter of disclosure is, under the circumstances, noguarantee that the determination will be founded upon soundprinciples of national interest. Nor does the record of unflaggingdepartmental opposition to disclosure on any and all grounds con-duce to confidence in administrative impartiality on this score.Entrust the administrators with exclusive power to determinewhich facts shall be divulged, said Wigmore, and the gate tounlimited extension of the privilege categories is open.28

In the Reynolds case, it must be remembered that the Courtof Appeals placed to one side the situation where Congress hasauthorized and the courts have utilized a subpoena directed to anexecutive department head demanding official records in his con-trol.29 Instead the court issued a discovery order, and in realitygave the executive official a choice to comply or to refuse to sub-mit the department records. Should he decline, the court neednot attempt to enforce its order by contempt action, a procedureladen with constitutional dangers. Rather it orders a decree estab-lishing the issues in favor of the plaintiff. It may be that underthe Federal Rules, this approach to the problem is a convenientdetour from the constitutional dilemma of separation of powers.The executive department head is forced to make the difficultdecision whether to press a defense and produce documents orto submit to loss of the case. However, the question remainswhether this form of coercion can avoid the substance of con-

' 8 WiMoBE, EvincE, sec. 2379 (3rd ed. 1940).'See Touhy v. Ragen, 340 U.S. 462 (1951).

KENTUcKY LAW JOUBNAL

stitutional objection. By such an approach the Congress and thecourts seemingly accomplish in combination that which neithercould do directly alone. But under discovery procedure, andconsequent action establishing the issues in favor of the opponent,should a discovery order be not obeyed, the court acts only in itstraditional sphere of deciding cases. It has not attempted to usethe force and power of its process to compel the executive to actin a specified manner. The choice of their action or non-actionis left to executive officials. The result of their decision governsthe future actidn of the court, and they have been given a freechoice with full knowledge of the consequences. This differsfrom the usual attempt by subpoena, mandamus, or injunction toexact obedience to a directive of the court. The conceptual dis-tinction between a court order directing an official to act in aspecified manner and court action taken only after an executiveofficial has pursued a specific course of conduct may be sufficientto sustain the constitutionality of the latter type of approach.

The position of the Court of Appeals would seem to be welltaken, since the result appears salutary. It is important to protectthe rights of the individual tort victim, injured because of negli-gent activity on the part of the government. To present his case,the victim needs information contained in the report of the in-vestigating board. To allow the Air Force to determine alonewhether or not it will produce matter, which may well lead to adetermination of fault in favor of the tort victim, can only resultin constant refusal to submit that information to the court. Somesanction must be imposed to impress the executive official withthe magnitude of the problem, otherwise it becomes too easy todiscover privilege where in reality none should exist. T7he prin-ciple of loss of the case, if the documents are not produced, re-moves temptation to take the easy path in an attempt to escapeliability. Should a security matter be present, it would appearthat the court could well be taken into strict confidence. In ademocratic society, information should be open to all exceptwhere its dissemination would endanger the national welfare.

CONCLUSION

From the preceding discussion, several general conclusionscan be drawn. (a) Few generalizations can be drawn from the

DiscovERY AGAINST E GOVERNMENT

cases which will serve as guides for decision to the trier of issuesof executive privilege and as bases for the prediction of those de-cisions. (b) There has been no adequate recognition of the in-terests involved in issues of executive privilege. (c) The courtsare the agency best fitted to determine issues of executive privi-lege.

In the formulation of a technique and a procedure, the distinc-tion to be drawn between the various types of data will dependupon an estimate of the relative importance to society of the in-terests involved in the production of each type of data. No ob-jective criteria are available to guide the estimate. But it seemsobvious that the interests opposed to the production of data af-fecting the national security are of much greater importance tosociety than the interests involved in the production of othertypes of data. The purpose of this distinction is to make the pro-duction of data affecting the national security more difficult thanthe production of other data. This purpose could be effectuatedby having different standards for different types of data, or byhaving different allocations of the burden of persuasion.

When a litigant seeks the production of data within the controlof an executive department or administrative agency, the depart-ment or agency must determine for itself whether or not it willresist production. This decision is entitled to weight in the courts.There is some basis for saying that such a decision in and of itselfis enough to place the ultimate burden of proving that discoveryis warranted on the party seeking production. A consideration ofthe other factors involved in a determination of who should bearthe ultimate burden shows, however, that in the absence of specialcircumstances, the department or agency in control of the datashould bear the burden of proving that discovery is not warrantedon issues of executive privileges. The department or agency aloneknows what interests will be harmed by disclosure and the degreeof such harm. The department or agency is asking the court todepart from the general principle that all material evidence is sub-ject to production. Hence, the agency should be required to showthat the interests opposed to production should be given effectrather than those favoring it.3 0

Query: How is the court to decide which interests shall prevail and how isany decision of policy to be made? It is doubtful whether any articulate premisescan be formulated to guide the court. We have a science of discovery but no sci-ence of evaluation.

KENTUcKY LAw JouRNAL

The discovery procedure is based upon the conviction thatpre-trial knowledge of all the facts is essential to an enlightenedjudicial system. Suppression of evidence has little to commendit on any theory, and it is even less defensible when the govern-ment litigates with its own citizens. No exemption was conferredon the United States from the broad coverage of the discoveryprovisions. The Rules thus follow our tradition that the govern-ment proceeds like any other litigant. In a State that rests on theconsent of the governed, the claim of the government to greaterprivileges than are accorded its citizens must rest not on adminis-trative convenience, not on archaic notions of prerogative alien toour institutions, but on genuine necessity. Our nation has againand again risen above partisan strife because of general confidencein the fairness of the government. That confidence is indis-pensable to continuance of our democratic institutions. It canonly be impaired by governmental claims of special privilegeagainst the citizenry.