Sixth Circuit Blog

More on Domestic Spy Program

Lyle Denniston has this post in Scotusblog on the NSA spy program declared unconstitutional last week by Judge Anna Diggs Taylor.  Our post on the decision can be found here.

Scotusblog also has a round-up of other commentaries on the NSA wiretap ruling here.

Finally, Denniston provides his analysis of U.S. District Judge Gladys Kessler's 1742-page ruling on August 17 that the tobacco industry violated RICO in this post also in Scotusblog.

More on Eminent Domain and Norwood vs. Horney

Our thanks to Jason Harrow of Scotusblog for pointing out Ilya Somin's op-ed piece in Legal Times regarding the status of eminent domain after Kelo and the Ohio Supreme Court's recent decision in Norwood vs. Horney.

Sixth Circuit Upholds Certification of a State-Wide Express Warranty Class, Finding No Abuse of Discretion Where Class Potentially Includes Members Who Suffered No Injury

In a Rule 23(b)(3) class action filed in the Southern District of Ohio, the class seeks damages against Ford Motor Company for a defective throttle assembly that allegedly causes the accelerator to stick in some 1999 and 2000 Mercury Villager minivans.  The district court certified a class of all Ohio residents who owned or leased those vehicles during the initial express warranty period, thus potentially including in the class some number of owners and lessees who never actually experienced the problem.

On interlocutory appeal of the class certification order under Rule 23(f), the Sixth Circuit held that certifying a state-wide class to litigate the express warranty claims was not an abuse of the district court's discretion because the class and the named plaintiffs satisfied the criteria of Rules 23(a) and 23(b)(3).

The Court's decision in Daffin v. Ford Motor Company, Case No. 05-3545, filed on August 18, 2006, may be found here.

Sixth Circuit Requires Disclosure of Attorney Work Product Provided to Expert Witnesses

In a ruling of first impression in the Sixth Circuit on whether attorney opinion work product given to expert witnesses is discoverable under Rule 26 of the Federal Rules of Civil Procedure, the Court joined the Federal Circuit and a majority of district courts in holding that the expert disclosure requirements of Rule 26(a)(2)(B) establish a "bright-line" rule mandating the disclosure of all documents given to testifying experts, specifically including attorney opinion work product.

In affirming the discovery order of the Western District of Kentucky in Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC, Case No. 05-5754 (6th Cir. Aug. 17, 2006), the Court expressly relied on the text of Rule 26(a)(2)(B) as amended and on the Advisory Committee Notes from the 1993 amendments to the Civil Rules that added the expert disclosure requirements.

Rule 26(a)(2)(B) as amended requires that, for any "witness who is retained or specially employed to provide expert testimony in the case," the parties are required to disclose, inter alia, "the data or other information considered by the witness in forming the opinions."

Since the 1993 amendments two distinct lines of cases had formed that reached opposite conclusions.  The first, beginning with Haworth Inc. v. Herman Miller Inc., 162 F.R.D. 289, 292-96 (W.D. Mich. 1995), held that attorney work product is not discoverable merely because it had been shared with a testifying expert.  The district court in Haworth concluded that the expert disclosure provisions added by the 1993 amendments did not alter the pre-amendment rule that attorney opinion work product disclosed to testifying experts was immune from discovery.  The Haworth decision was based on the venerable principle of Hickman v. Taylor, 329 U.S. 495, 510-12 (1947)(work product doctrine generally protects from disclosure documents prepared by or for an attorney in anticipation of litigation or for trial), and pre-amendment Sixth Circuit precedent in Toledo Edison Co. v. GA Techs., Inc., 847 F.2d 335, 339-41 (6th Cir. 1988)(Rule 26 categorically excludes the discovery of opinion work product even when provided to testifying experts).  As Haworth stated, "[f]or the high privilege accorded to attorney opinion work product not to apply would require clear and unambiguous language in the statute."  162 F.R.D. at 295.  Finding none, the district court in Haworth declined to depart from the doctrine of absolute privilege that traditionally attached to attorney opinion work product.

The second line of cases, including In re Pioneer High-Bred Int'l. Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001), adopted the contrary view that the 1993 amendment to Rule 26 created a bright-line rule requiring disclosure of all information provided to testifying experts.

The Sixth Circuit determined that the text of Rule 26(a)(2)(B) requires adherence to the second line of cases mandating disclosure, and that, while Rule 26(b)(3) imposes certain limitations on discovery rights and procedures available under the civil rules, it does not address the mandatory disclosure obligations established by the 1993 amendments.

The Sixth Circuit held as follows:

The bright-line approach is the majority rule, represents the most natural reading of Rule 26, and finds strong support in the Advisory Committee Notes.  Therefore, we now join the "overwhelming majority" of courts . . . in holding that Rule 26 creates a bright-line rule mandating disclosure of all documents, including attorney opinion work product, given to testifying experts.

The panel opinion in Regional Airport Authority can be found here.

Domestic Spying Program Declared Unconstitutional; Government Plans Appeal to Sixth Circuit

In a strongly-worded and broadly-based rebuke of a cornerstone of the Administration's war on terror, U.S. District Judge Anna Diggs Taylor today issued an opinion declaring the Terrorist Surveillance Program (TSP) implemented by the National Security Agency (NSA) to be unconstitutional and in violation of federal law.  Her permanent injunction orders the NSA to cease operating the TSP in any way, including warrantless wiretaps of telephone and internet communications, that contravenes the requirements and safeguards for electronic surveillance imposed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq., and the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1801 et seq. (FISA).

The action was filed in the Eastern District of Michigan by the ACLU and a group of organizations and individuals who contend that they regularly communicate by telephone and e-mail with persons abroad, including in the Middle East, for entirely legitimate reasons relating to their practice of law, journalism and scholarship.  The plaintiffs allege they have been subjected to the covert, warrantless interception or monitoring of such international communications, violating their rights and chilling their constitutionally  protected communications.  Since persons abroad who formerly spoke with them will no longer do so, the plaintiffs argue they have been stifled in their ability to conduct research and scholarship, talk with sources, interact with clients and, in the case of those plaintiffs who are attorneys, locate witnesses and provide effective and ethical reperesentation to their clients.

The Government argued that dismissal was required by the so-called "state secrets" privilege because the plaintiffs could establish neither their own standing to sue (i.e., whether they had actually been the targets of the covert wiretapping and monitoring they suspect) nor the elements of their claims without the use of confidential information in the hands of the Government that constitute state secrets.  Moreover, the Government argued that it could not defend its programs as being both necessary to the national defense and in compliance with constitutional and statutory standards without revealing state secrets.

In Tenenbaum v. Simonini, 372 F.3d 776, 777 (6th Cir. 2004), the Sixth Circuit affirmed the dismissal of discrimination claims against federal agencies because they could not defend themselves "without disclosing information protected by the state secrets doctrine."  Other district courts have invoked the doctrine to dismiss challenges to various aspects of the war on terror.  In one such recent case, Terkel v. AT&T Corp., 2006 WL 2088202 (N.D. Ill. 07-25-06), Studs Terkel and the other plaintiffs alleged that their wireless service provider, AT&T, turned over to the NSA confidential information regarding their telephone calls and internet communications.  District Judge Matthew Kennely dismissed the case on the ground that the state secrets privilege made it impossible for the plaintiffs to establish standing.

However, like District Judge Vaughn Walker in Hepting v. AT&T Corp., 2006 WL 2038464 (N.D. Cal. 6-20-06), Judge Taylor rejected the state secrets argument.  She found that the Government has on many occasions admitted and confirmed that:

1.  the TSP exists and has existed since 2002;

2.  it operates without warrants;  and

3.  it targets communications where one party is outside the United States, and the government has a reasonable basis to conclude that one party is a member of al-Qaeda, affiliated with al-Qaeda, a member of an organization affiliated with al-Qaeda, or working in support of al-Qaeda.

Indeed, in his December 17, 2005 radio address, President Bush disclosed:

In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.

The court ruled that the NSA's warrantless wiretaps violated the plaintiffs' free speech and privacy rights embodied in the First and Fourth Amendments to the Constitution.  The decision also concluded that the TSP program violated the constitutional separation of powers doctrine and FISA, noting that FISA (like Title III) permits delayed applications for warrants after surveillance has already begun.

Judge Taylor rejected the Government's arguments that (i) Congress' Authorization for Use of Military Force on September 18, 2001, Pub. L. 107-40, 115 Stat. 224, 50 U.S.C. 1541, granted the President the power to conduct the TSP in violation of FISA and the Constitution, and (ii) the designation of the President as Commander in Chief of the Army and Navy grants him the inherent power to violate laws enacted by Congress and the Constitution whenever he deems it necessary to the national defense.  The court noted that the same "inherent powers" argument had been unsuccessfully raised before in the Steel Seizure Case, Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), and that "since Ex parte Milligan [71 U.S. (4 Wall.) 2, 120 (1866)], we have been taught that the 'Constitution of the United States is a law for rulers and people, equally in war and in peace . . .' "

Judge Taylor's opinion concludes with a message and a challenge:  "Plaintiffs have prevailed, and the public interest is clear . . . It is the upholding of our Constitution.  As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258, [264] (1967):

Implicit in the term 'national defense' is the notion of defending those values and ideas which set this Nation apart.  . . . It would indeed be ironic if, in the name of national defense, we would sanction a subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile."

The NSA's public information statement on the TSP sets forth several justifications for the program.

The Justice Department will apparently ask Judge Taylor for a stay of her injunction order pending its appeal to the Sixth Circuit.

Jurist News has a story on Judge Taylor's ruling here.  AP also has a story on the wires here.

Presidential Signing Statements Redux: The Debate Intensifies

Eight distinguished lawyers and law professors who formerly served in the Justice Department's Office of Legal Counsel have now weighed in on the debate raging over the legality of President Bush's use of presidential signing statements.  The group, including former Solicitor General Walter Dellinger and Harvard Law Professor David Barron, have expressed their views in a comprehensive collaborative post appearing last week in the Georgetown Law Faculty Blog.

More on Presidential Signing Statements: Prof. Tribe Takes Issue with ABA Report

Harvard Law School Professor Laurence Tribe has this thoughtful guest post in Balkinization criticizing the recent Report and Recommendation of the ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine submitted to the ABA House of Delegates at the Annual Meeting in Honolulu last week.