Petition and Supplemental Petition by International Business Machines Corporation for a Writ of Mandamus pursuant to 28 U.S.C. § 1651 and Fed. R. App. P. 21 against Honorable David N. Edelstein, Chief Judge, United States District Court for the Southern District of New York, et al. Petition granted in accordance with opinion.
Moore, Van Graafeiland and Meskill, Circuit Judges.
International Business Machines ("IBM") petitions this Court for extraordinary relief in the form of a writ of mandamus, pursuant to 28 U.S.C. § 1651 and Fed. R. App. P. 21. The petition focuses on certain rulings and practices adopted by Chief Judge Edelstein of the Southern District of New York in the conduct of a lawsuit currently being tried before him, United States v. International Business Machines Corp., 69 Civ. 200, Civ. No. 72-344.
More specifically, IBM seeks relief from the acts of the trial judge in (1) precluding IBM from privately interviewing adverse witnesses; (2) refusing to file IBM's papers with the Clerk of the Court as required by Fed. R. Civ. P. 5(e); and (3) ordering IBM not to make oral motions in open court during the trial and directing that motions be in writing and within the time limits provided by the Rules. Before responding to these requests, we first give consideration to our jurisdiction and such limitations as there may be on the exercise of our discretionary power relating to the petition.
This is not an ordinary case, and this will not be an ordinary trial. The complaint was filed on January 17, 1969. In substance, it charged IBM with violations of Section 2 of the Sherman Act (15 U.S.C. § 2). The trial commenced on May 19, 1975 and the Government estimates that it will "last well over a year". It expects to call "more than one hundred witnesses", and to "offer several thousand exhibits" (Gov't.'s Br. 1 and 2). IBM will undoubtedly have a comparable number of witnesses and exhibits. So much for the magnitude of the trial which, having commenced in May 1975 and recessed for the summer, has now resumed.
The Government asks that we "discourage in the strongest possible language the filing of petitions for extraordinary relief raising issues as insubstantial as those raised in this case". (Gov't. Br. 5). We decline to do so because we do not regard the issues as "insubstantial". We recognize that mandamus is not a substitute for an appeal, and that every disputed ruling during a trial should not be made the subject of a mandamus petition. However, the relief sought here is more fundamental. The errors complained of are not errors involving improper exercise of discretion; see Stans and Mitchell v. Gagliardi, 485 F.2d 1290 (2d Cir. 1973); rather they concern actions which, petitioner has charged, are entirely outside the permissible bounds of the trial court's discretion, and which exceed the trial court's jurisdiction. Such actions are properly reviewable by writ of mandamus. See Parr v. United States, 351 U.S. 513, 520, 76 S. Ct. 912, 917, 100 L. Ed. 1377 (1956). Moreover, appellate review will be defeated if the writ does not issue, for petitioner's claims are not of the kind that will be merged into any final judgment and thus capable of correction on appeal. This, too, is a proper ground for the issuance of a writ of mandamus. Parr v. United States, supra.
The asserted errors are wholly collateral to the resolution of the legal issues involved. They deal only with the manner of developing such issues. Restrictions which may impede the development, presentation and determination of facts should be avoided wherever possible - particularly at the comparative outset of such a trial as here.*fn1
I. RESTRICTIONS ON WITNESS INTERVIEWS
About a week before the commencement of the trial, at a pretrial conference on May 12, 1975, the trial judge told counsel "that if any one of you seeks to interview a witness in the absence of opposite counsel, that you do it with a stenographer present and so that it can be available to the Court, for the Court to see it, and I think that is the kind of condition that I would ask you to live up to." (Tr. 71) (Emphasis supplied). This direction was restated, in substance, during the trial. (Tr. 603).
The Court's ruling grew out of IBM's efforts to interview some of the individuals appearing on the Government's lengthy list of witnesses. We are told (and the Government has submitted no proof in contradiction) that upon learning of these interviews the Government ordered witnesses - two in particular, a Mr. Kraft and Lt. General Phillips - not to proceed with the interviews. Accordingly, both those prospective witnesses cancelled their interview appointments.*fn2
As was to be expected, the Court's order proved to be quite unworkable. IBM found it difficult to arrange interviews with witnesses, usually corporate executives with offices outside New York City, at times and places which were convenient to both the witnesses and opposing counsel. Moreover, interviews in the presence of opposing counsel did not lend themselves to the free and open discussion which IBM sought. Interviews transcribed by court reporters were a most unattractive alternative.
The trial judge apparently looked upon an interview as the taking of a deposition. In fact, there is little relation between them. A lawyer talks to a witness to ascertain what, if any, information the witness may have relevant to his theory of the case, and to explore the witness' knowledge, memory and opinion - frequently in light of information counsel may have developed from other sources. This is part of an attorney's so-called work product.*fn3 It is the common experience of counsel at the trial bar that a potential witness, upon reflection, will often change, modify or expand upon his original statement and that a second or third interview will be productive of greater accuracy. Little wonder then that a witness being interviewed, as in two cases mentioned by IBM, would not wish to have his initial thoughts taken down by a court reporter as if it were sworn testimony in court.*fn4
We find disturbing the stated purpose of the order "so that it can be available to the Court, for the Court to see it". This condition is tantamount to an insistence that the trial judge be present at every interview and thus become cognizant of each proposed witness' statements even though such witness may never be called upon to testify. Again, it is common experience that, in presenting his case, counsel will offer the important (in his opinion) testimony which supports his theory of the case and discard the unimportant, his opponent having the same privilege.
We believe that the restrictions on interviewing set by the trial judge exceeded his authority. They not only impair the constitutional right to effective assistance of counsel but are contrary to time-honored and decision-honored principles, namely, that counsel for all parties have a right to interview an adverse party's witnesses (the witness willing) in private, without the presence or consent of opposing counsel and without a transcript being made. And, since the role of the trial judge is to pass upon the admissibility of proof, when and as offered, and to render his decision upon admitted proof, it follows that witness statements, if taken, should not be made available to the court in advance.
There is no question but that the trial judge did not intend adverse results to flow from his rulings. On the contrary, the record indicates that he felt the establishment of formalized interview procedures would aid the Court in its ultimate determination on the merits*fn5 and would also insure the integrity of the trial by guarding against the exercise of undue influence upon prospective witnesses by interviewing attorneys.*fn6
Both of these purposes are indicative of the high standards which Judge Edelstein has set for the conduct of this extraordinarily complex and massive lawsuit, and we agree that it is vital for the Court to make decisions which are as informed as possible, based upon testimony which represents the true opinion and conclusions of the witness who offers it. However, we are in disagreement as to the method best suited to achieve this end. In particular, we are concerned that the means chosen by Judge Edelstein have unduly infringed upon counsels' ability to prepare their case for trial, and have, in addition, lessened the effectiveness of that trial by placing before the Court, not the case as finally prepared and refined by counsel, but rather a hodgepodge of information accumulated in the early stages of counsel's preparation. We believe that it does a disservice both to the parties and to the Court to subject to the Court's scrutiny the process by which counsel researches, develops and integrates the case which he ultimately presents. Counsel cannot be expected to have formulated a finished presentation at the outset of his preparation and endeavors. To require that his initial investigatory efforts be of a quality which counsel would willingly include as part of his client's final case is to set up an impossible standard; to ask him to submit his initial probings, notwithstanding their lack of effectiveness in his client's behalf, is in effect to ask counsel to deny his client the effective representation to which he is entitled. See, Code of Professional Responsibility, Canon 7.
The legitimate need for confidentiality in the conduct of attorneys' interviews, with the goals of maximizing unhampered access to information and insuring the presentation of the best possible case at trial, was given definitive recognition by the Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947). In that case, a suit for damages growing out of the accidental sinking of a tugboat, the defense attorney was ordered by the District Court to produce all written statements of witnesses made prior to trial, and to further disclose information gathered through oral interviews which ...