Audio & Transcript of Oral Arguments, First Circuit Court of Appeals, September 7, 2012

Audio & Transcript of Oral Arguments, First Circuit Court of Appeals, September 7, 2012
Oral arguments made in the appeal filed by Boston College to challenge the district court ruling concerning the PSNI subpoena filed under the US-UK MLAT for the oral history archive known as The Belfast Project.

No. 12-1236

Petitioner – Appellee
Movant – Appellant

Oral Arguments
First Circuit Court of Appeals
Boston MA 7 September 2012

Sitting for the court: the Honourable Juan Torruella, the Honourable Michael Boudin and the Honourable Ojetta Rogeriee Thompson.

12-1236 In Re: Request from the United Kingdom Oral Arguments 9/7/12: Download

Attorney Jeffrey Swope (*JS*) makes the oral arguments for Boston College

(In progress…)

Jeffrey Swope (JS): May I reserve one minute of my ten for rebuttal, Your Honour?

Judge Torruella: You may.

(JS): Thank you.

This appeal is from an order that required Boston College to produce confidential academic research materials in response to a subpoena issued by the Commissioner of The United States under a multilateral treaty with the United Kingdom. Now the materials were confidential oral history interviews gathered from individuals who participated or were affiliated with the IRA in The Troubles in Northern Ireland. Now the description that I’ve just given will sound familiar to this court because two members of this panel were on the panel that decided a case that could sound like that same case in July.

This is not that case. This is a very different case. Boston College was not a participant in that appeal and the subpoenas that were at issue are different subpoenas.

The first subpoenas that were the issue in what I’ll call In re: Request of the United Kingdom, which is how this court referred to the district court decision, was for the transcripts of two named individuals – specifically named individuals.

The subpoenas that are at issue in this case, issued a couple of months later to Boston College, were not so specific as to interviews. Rather they described a subject matter which was: any information in all of the oral history transcripts that relates to the abduction or death of a victim of the unrest in the 1970’s.

By definition, therefore, somebody had to make a decision about which transcripts had relevant, responsive material in them that fell within the scope of the government’s subpoena. The district court undertook an en camera review of over a thousand pages of those transcripts and at the conclusion of that determined that eight of the twenty-four transcripts that the district court reviewed – all or some of those transcripts should be produced. It’s from that order that we appeal.

And we appeal because we say the district court in making that relevance judgment did not follow the instructions of this court in a 2004 case, In re: Special Proceedings, that says when you’re dealing with materials that have first amendment implications for news gathering or for academic research and the freedom of information and the analysis of academic issues, courts should review these subpoenas with “heightened security”. And it defines “heightened security” as making sure that the materials that are provided are quote “directly related” to the subject of the subpoena. And it’s our contention that as to these eight transcripts that were produced that were not directly related.

Judge Torruella: To what extent are the cases, the ones you’ve just mentioned, controlled by Branzburg?

JS: They’re not, Your Honour, because this court considered Branzburg and said, in the words of Justice Boudin, that in this circuit there is an additional amount of protection for these kinds of research materials. And the court said it’s not clear whether this is constitutionally required or prudential but that extra protection is the imposition of this direct relevance.

So this court has actually decided that in In re: (Ed: Special) Proceedings – the question that Your Honour just asked me and in…

Judge Boudin: Are you talking about Judge Lynch’s opinion?

JS: No. I’m talking about In re: Special Proceedings – the 2004 case.

Judge Lynch’s opinion in In re: Request of the United Kingdom cites the In re: Special Proceedings decision in a couple of places and doesn’t question its conclusion. It doesn’t cite it on this issue but it cites the case so the court was obviously aware of In re: Special Proceedings.

Judge Thompson: Counsel, do you agree that this is an abuse of discretion reviewed by us?

JS: Yes, I do. And I understand that that sets a high bar, Your Honour.

Judge Thompson: And so your basic argument is that the court abused its discretion in making its determination as to what transcripts were relevant?

JS: Directly related.

Judge Thompson: Directly related…

JS: Correct.

Judge Thompson: …and responsive.

JS: That’s correct. Now requiring…this court’s requirement in In re: Special Proceedings that when you’re dealing with these kinds of materials they be directly related in order to compel production is not a privilege.

Boston College never argued that there was an academic researcher’s privilege. And this court, in the In re: Request of UK decision by Judge Lynch says there is no privilege that allows academic researchers to deny evidence to government investigators in criminal matters. We never argued that. That holding does not affect our argument.

Judge Torruella: Does the treaty, I don’t remember the dates, does the treaty precede or is it after the cases that you have just referred to? Which date would the case be?

JS: Both were in 2004. Well, the operative MLAT, as it is called, is in 2004 but there was similar language in an earlier version of it so that the language about multilateral treaties, multilateral assistance, in criminal proceedings has been used before 2004.

That was not the issue in In re: Special Proceedings. In re: Special Proceedings had to deal with disclosure of video tapes in Rhode Island that had been part of a…

Judge Torruella: Yes. My question really goes to: does that treaty take the power away from the court to engage in that balancing test?

JS: No, it does not Your Honor, for two reasons. First is that under Article 8 Subsection 2 the treaty expressly says that requests for subpoenas issued under this has to follow local law so it does not oust local law.

Secondly, even if it tried to oust local law, it would be astonishing to think that the United States, by entering into a treaty, could turn judges enforcing subpoenas into simple clerks that simply stamp papers.

And Aubrey v. Madison decided that question long ago. In the Ninth Circuit case that is cited in In re: Request of the UK expressly says that it rejects any argument that the treaty could make it a matter simply between the executive and the law enforcements officers to issue subpoenas. The court said the government’s position leads to the inescapable and unacceptable conclusion that the executive branch and not the judicial branch would exercise judicial power. That issue, which has not been argued by The United States in this case, if it were argued, I think the answer’s clear under that Ninth Circuit which is, all of these cases have odd names…it’s In re: 340 Broadway, or something like that.

The other important point about In re: Special Proceedings is that it, like this case, was connected to a criminal proceeding. At various points this court has expressed more protection for academic research in civil matters, the Cusumano case and others, (and the Bruno case) but those cases also apply, the In re: Special Proceedings arose in and the protection of direct relationship was stated in the context of a criminal proceeding.

Now the specifics of how “directly related” works, gets into the details of the transcripts that are the subject of this proceeding.

We have filed with this court a record that has, under seal and ex-parte because they are protected at this present time we argue, the particular transcripts that show what the abuse of discretion was in ordering production.

I can’t get into that in open court obviously but I can point to two things in open court: one is that the district court expressly said that only one of the interview transcripts sent was responsive to the subpoena. And then said there’s one other that if broadly read, that description about the abduction and death of a victim, there’s one other that might be considered responsive.

Well, right there you have the evidence that the court has not applied, although it states that it understands the direct relevance test, that it has not apply that.

One other transcript that is even further proof is a mistakenly labeled one. The interviewers had mistakenly labeled one other person’s interview as that of one of the ones the judge ordered. When that was brought to the judge’s attention he said I’m not going to change my order. So that had nothing to do with any finding. Thank you, Your Honour.

Judge Torruella: Thank you.

Assistant US Attorney Randall Kromm presenting oral argument on behalf of The United States of America:

Judge Torruella: Mr. Kromm, Good Morning.

Randall Kromm (RK): Good Morning. May it please the court: Randall Kromm representing The United States.

With due respect, the government just simply disagrees that In re: Special Proceedings and particularly the language from that case on which BC relies here has any relevance with respect to these or any survives has any vitality with respect to these materials in the wake of the most recent decision addressing the very same materials by this court. What this court had to address there…

Judge Torruella: So that case is resolutely counter, basically, is what you’re saying?

RK: Well not simply as a matter of the legal interpretation of the interests as they apply to these materials or the law as it applies to these materials, this court has already decided that.

Now again, it’s a different subpoena, but it’s the same body of work, the same interests are asserted.

Judge Torruella: Different parties.

RK: Different parties. But the same interests and the same body of work and the first amendment arguments based on the same principles in our view it simply is…so on all fours…there’s simply no… it’s inescapable that the decision there applies equally here.

And the reason is: In re: Special Proceedings – the point there there was some language in the case – it’s just that this court has been more protective in a series of prior cases where there’s a first amendment right at issue. But in this court’s prior decision, with respect to these materials, the court said, distinguished, that line of cases including In re: Special Proceedings and said that this case, these materials, this request, is more more similar to the central facts of Branzburg in that Branzburg itself controls.

I don’t think the court could’ve really been any clearer in suggesting that, to the extent being any difference between it’s prior cases and Branzburg, by saying that Branzburg controls here and it’s the requirements of Branzburg that apply here that, to the extent those other cases were more protective in other circumstances, they don’t apply here. And I think that is pretty straightforward just from the way that it distinguishes those cases.

But the court goes a little further than that in which it also cites the EEOC vs University of Pennsylvania case which specifically raised the issue about whether there was a heightened relevance standard. The issue to there the EEOC was seeking documents having to do with the tenure process. They were opposed on the grounds, the first amendment grounds, of impingement upon academic materials. And the specific assertion was there was a heightened standard of relevance; they had to be especially relevant, not directly relevant, but there was a heightened standard of relevance. The Supreme Court said it did not.

This court cited that case with approval in its most recent decision saying, noting that that case had rejected a requirement that there be a judicial finding of particularised relevance beyond a showing of relevance, ordinary relevance. And then went later went ahead to refer to that case several more times in the decision.

So in our view, the central point here, which was there was some supplemental relevancy required, simply isn’t true with respect to these materials

Judge Boudin: You still haven’t the solved question with either one or two of the rulings as to whether even a regular relevancy test was that including the example given at the end by your Brother. (Ed Note: “Brother” – a polite and acceptable reference to opposing counsel used in Massachusetts courts.)

RK: Right. There was a mention of a case that was mislabeled. And I think, again this is an interesting case and I think it’s also important to note this was a case in which there were ex-parte materials submitted by both sides and without objection. Not only does the government not have those materials, so it’s not in the position to argue as to whether something was mislabeled or was not, but my Brother is also not in the position to have the information solicited from the government and that the government submitted to help the court understand the full scope of the subpoena or what the meaning of the subpoena was. As it has been described, the subpoena was very broad: any and all materials relating to the abduction of Jean McConville.

The court asked for information from the government to be submitted ex-parte regarding the investigation in the UK that could help us understand what was really being looked for. And it took that into account. So the court knew what neither of the individual parties knew in totality as to what was really at issue here – what was really being sought and what the materials that Boston College had really said.

And under the circumstances here we really don’t think there’s evidence from the public part of the record that shows that the district court did anything wrong or misunderstood what it was doing. I think the court was clear in attempting to explain in a public way a case involving alot of non-public information that the materials had different degrees of connection to the central facts of the McConville case.

But that it believed, having taken it upon itself to review a thousand pages or more of material, and it also explains how it educated itself on the geographical and historical aspects of The Troubles, in order to understand better what would be relevant. Having taken that upon itself it believed this was the correct universe.

We haven’t seen anything to suggest that the district court didn’t discharge that obligation with all the information that it had properly and taking into account what the true scope of the investigation was that it didn’t find what was relevant in an ordinary sense of relevance.

And again, we don’t have the materials so there is a point at which the court will make it’s own determination but from the public pronouncements we don’t think those show that the court misunderstood…

Judge Boudin: Mr. Kromm, this is a rather difficult position to try understand the rationale if the original rationale rests on the notion that one person is being interviewed or one person has a connection.

Turns out that’s a mislabeling. What do you suggest we do (to) understand the rationale?

RK: Again, from the public, we know what the district court thought as it trying to do. It was trying to inform itself as to what could possibly be relevant to the investigation as it knew, in a way that even Boston College does not, what the investigation was. If it was clearly wrong, I mean, an abuse of discretion could have occurred. We just have no basis on the public statements of the court to think that that happened.

I also think, and we pointed this out in our brief, that there is perhaps a heightened kind of abuse of discretion here where Boston College asked for this process. The government did not. I mean the government would’ve objected to the idea that the court would sort of be a gatekeeper in the process. Boston College chose to let the judge take on quite a serious task of going through and making the decision about what would be the documents that would be produced. And I think, we cite to a case where this court has said, in that circumstance an entity is hard pressed to say that the district court abused its discretion in fulfilling the obligation that it asked the court to take on.

But again that’s not to say there couldn’t be an extreme circumstance. It’s just on the public record we don’t see evidence of that, that the district court misapprehended relevance in the general sense or….

Judge Torruella: So what could we do? We read everything that the district court read and make up our own minds? Or what?

RK: Well I think presumably, I know materials have been submitted materials ex-parte by both parties. I presume this court will review those and see within the specific kinds of objections, presumably, they pointed to the most significant documents that they believed showed the court misapprehended it’s obligation. We’ve pointed to the documents that we think show what the district court was thinking about when it did and said what it did.

And I guess the court does have to make a determination on the basis of that whether it represents the…

Judge Boudin: Well, a lot of the arguments are in fact dependent on a special relevance requirement. You make particular arguments with respect to a couple but they wouldn’t satisfy even ordinary relevance tests. But most of it turns on the issue you’ve already addressed.

RK: I think if there aren’t any more questions those are the points I wanted to make and we rely on our briefs Thank you, Your Honours.

Judge Torruella: Thank you. Mr Swope?

JS: Thank you, Your Honour. Very briefly: Mr. Kromm said that the In re: Request of the UK distinguished In re: Special Proceedings on this issue of “directly related”. It did not. That argument was not made by the appellants in In re: Request of the United Kingdom.

Judge Boudin: I think the suggestion is the language the court used in the decision would make it harder to argue for a special relevance test.

JS: The court, the decision did not address it.

Judge Boudin: But…

JS: I take your point.

Judge Boudin: Judge Lynch’s opinion set forth a rationale which doesn’t leave too much room for that argument.

JS: But it does allow because it’s not a privilege. It does allow the court to say the government will still get directly related materials. Nothing would be denied to the government. That’s our point.

Judge Torruella: Thank you.