Before MCLAUGHLIN and HASTIE, Circuit Judges, and MORRILL, District Judge.
MORRILL, D. J.: Involved here is the question of the extent of what has been called the informer's privilege (in reality the government's privilege). Charging the defendants with violations of the Fair Labor Standards Act,*fn1 the plaintiff seeks injunctive relief.
The business of the defendants is operating and keeping clean lavatories, washrooms and barber shops in some stations of certain railroads. Interstate commerce engagement is conceded. The violations concern an alleged failure to pay wages in accordance with the statutory minimum and overtime requirements.*fn2
In answering interrogatories propounded under F.R.C.P. 33,*fn3 the plaintiff admitted that he or persons acting in his behalf had received from a person or persons a report, statement, memorandum or testimony concerning the matters at hand. He also listed the names of 85 persons, employees or former employees of the defendants, known or believed to have knowledge concerning these matters.
The plaintiff objected to two certain interrogatories on the ground that they requested the plaintiff "to reveal the names of informants from whom he has obtained information in the course of investigations which he is by law required to make in pursuance of his duties of enforcement, which is contrary to public policy." Overruling this objection, the court ordered the plaintiff to answer these interrogatories (as limited by the same order) by furnishing the defendants with the names of the persons who had furnished the written statements above referred to. The plaintiff then filed a formal Claim of Privilege under General Order 72 of the Secretary of Labor promulgated under the Housekeeping Statute, 5 U.S.C.A. § 22.*fn4 The defendants thereupon successfully moved to dismiss under F.R.C.P. 37(b)(2). This appeal followed. At the argument before this Court, the plaintiff abandoned his former reliance on the Housekeeping Statute but pressed the general informer's privilege*fn5 and our opinion will revolve on this ground.
The privilege for communications by informers to the government is well established and its soundness cannot be questioned. 8 Wigmore, Evidence, § 2374 (3rd ed.); Rule 230, American Law Institute Model Code of Evidence ; Rule 36, Uniform Rules of Evidence drafted by the National Conference of Commissioners on Uniform State Laws. The courts should be solicitous to protect against disclosures of the identity of informers. Bowman Dairy Co. v. U.S ., 341 U.S. 214, 221.
The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of violations of law to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. Roviaro v. U.S ., 353 U.S. 53.
However, the privilege must give way where the disclosure of an informer's identity is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, Roviaro, supra, at 60-61. As it is put in the Model Code and Uniform Rules, supra, the privilege exists unless the judge finds that the disclosure of the informer's identity is essential to assure a fair determination of the issues.
The term "not privileged" in Rule 26(b) undoubtedly refers to "privileges" as that term is understood in the law of evidence. U.S. v. Reynolds, 345 U.S. 1, 6, on Rule 34.
As the learned trial court pointed out, there has been no request for the contents of the statements; the request is merely for the names of persons who have given the statements - that is, for the identity of the informants, and that is the naked question before us. The court held that such identity "is essential to a fair determination of a cause." We disagree.
It must be kept in mind that the issue in this case is whether the defendants failed to pay proper wages to one or more of its employees; the issue is not whether there was a statutory failure in regard to persons, employees or not, who have given written statements to the representatives of the plaintiff. Thus the question is narrowed down to whether the disclosure sought by the defendants is essential to assure a fair determination of the issues, with due regard being given to the defendants' right to prepare their defense properly. We conclude that the defendants' interest in being illumined as to informers is not strong enough to overcome the privilege in this instance. While we recognize that the discovery rules apply to actions in which the United States is a party, 4 Moore, Fed. Prac . 26.05, 26.25 and that a trial is not a game of blindman's buff,*fn6 Johnson v. U.S ., 333 U.S. 46, we cannot overlook the fact that the modern discovery rules do not abolish the policy of withholding information based on a claim of privilege.
True it is that the various instruments of discovery now serve as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to the issues. Thus civil trials in the federal courts no longer need be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial. Hickman v. Taylor, 329 U.S. 495, 501. No fixed rule as to disclosure is justifiable. One must balance the public interest in protecting the flow of information against the individual's right to prepare his defense, taking into consideration the particular circumstances of each case. Roviaro v. U.S ., 353 U.S. 53, 62.
In Scher v. U.S ., 305 U.S. 251, defense counsel undertook to question the arresting officers relative to the source of information which led them to observe the defendant's actions. Objections to these questions were sustained. In affirming, the Supreme Court said:
"In the circumstances the source of the information which caused him to be observed was unimportant to petitioner's defense. The legality of the officers' action does not depend upon the credibility of something told but upon what they saw and heard - what took place in their presence. Justification is not sought because of honest belief based on credible information * * *. Moreover, as often pointed ...