GODBOLD, Circuit Judge:
The plaintiffs are Negroes who brought a class action against the corporate defendant (now Conoco Plastics, Inc.) and against the individual defendants, as officers of the Mississippi Employment Security Commission (MESC), charging Monroe Manufacturing Company with racial discrimination in employment and the individual state officers with racial discrimination in handling
It quickly became obvious to the parties that records of MESC would be among the most relevant evidence in the case. The MESC officials filed a motion in the District Court contending that under Section 7411,
The District Judge declined to certify the question as an appealable interlocutory order under 28 U.S.C. § 1292(b). The MESC officers then filed this appeal as from an injunction under 28 U.S.C. § 1292(a). Plaintiffs moved to dismiss the appeal, and the motion was carried with the case.
We hold that the order was appealable as a final order, 28 U.S.C. § 1291. No provision of § 1292 allows this appeal.
6 Moore, Federal Practice, ¶ 54.16 at 147 (2d ed. 1966). As pointed out in Cobble-dick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), the requirements of a healthy legal system simply do not permit halting the orderly process of a case in midstream to review
However, discovery orders may be appealable where a governmental privilege is asserted and the government is not a party to the suit. Caswell v. Manhattan Fire & Marine Ins. Co., 399 F.2d 417 (5th Cir. 1968); Overby v. United States Fidelity & Guaranty Co., 224 F.2d 158 (5th Cir. 1955). In such cases the asserted governmental interest may be "irretrievably breached" by disclosure, and the government has no remedy on appeal from a final judgment in the original action, even where the matter sought to be discovered is held by one of the parties on the government's behalf. Overby, supra, at 162.
Applying these principles to this case, to the extent that the appellants asserted the protection of the privilege on their own behalf, denial of the privilege was not appealable in the absence of a finding of contempt or a final judgment. Cobbledick, supra. But to the extent that a colorable claim was properly alleged on behalf of the State of Mississippi, the order was appealable.
Governmental privilege is assertible only by the government affected. United States v. Reynolds, 345 U.S. 1, 7, 73 S.Ct. 528, 97 L.Ed. 727, 733 (1953).
Id. at 7-8, 73 S.Ct. at 531, 97 L.Ed. at 733. Overby, supra, at 162-163. The claim of privilege was lodged in part by Aldridge, who as MESC chairman administers the Mississippi State Employment Service. Therefore it was properly raised.
The trial court followed the Overby requirement of independent judicial examination of the appropriateness of the privilege. On this appeal, defendants suggest that the case by case approach to the privilege is inappropriate in that the Mississippi statutes grant an absolute privilege against disclosure of the employment records here sought.
We turn first to plaintiffs' suggestion that we narrow the statutes by construction. Plaintiffs maintain that § 7412
We proceed to examine the role of the claimed state evidentiary privilege in this federal case.
The Mississippi statute, however construed, does not grant an absolute privilege from disclosure of MESC records in this case. We have recently reviewed the relevant authorities in Garner v. Wolfinbarger, 430 F.2d 1093 [No. 26168, 5th Cir., Aug. 31, 1970]. We there concluded that in any given instance the special federal interest in seeking the truth in a federal question case may require disclosure despite the existence of a state rule holding the same communications privileged. We reaffirm that result here.
Our conclusion is buttressed in this case by the policy of American courts noted above to weigh, independently of the evaluation of an executive officer, the need for any asserted governmental privilege. United States v. Reynolds, supra; 8 Wigmore, § 2379 at 808-17. Reynolds was a state secret case. Later cases have not confined the court's control over governmental privileges to assertions of the state secret privilege. In Overby the Comptroller of the Currency asserted that disclosure of reports of examination of national banks would make banks reluctant voluntarily to provide information and thereby undercut the Comptroller's ability to supervise them, an argument strikingly similar to that advanced by defendants here. This court cited Reynolds for the proposition that "[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers." 224 F.2d at 163.
State cases of governmental privilege seem to follow the same approach. Stratford Factors v. New York State Banking Dept., 10 A.D.2d 66, 197 N.Y.S.2d 375 (1960); Mathews v. Pyle, 75 Ariz. 76, 251 P.2d 893 (1952).
Where a government asserts a privilege not existent in the common law but based on unique considerations of government policy, the trial court properly should consider the assertion of privilege as part of the good cause requirement, balancing competing policies. Mitchell v. Bass, 252 F.2d 513 at 517 (8th Cir. 1958). A court of appeals may reverse for abuse of discretion. Id. at 518-519. Defendants ask us to second-guess the trial court and find that blocking out the names of nonparties on application cards would not significantly reduce the scope of plaintiffs' discovery, and furthermore that revelation of those names would seriously compromise the effectiveness of MESC.
The trial court entered two orders relative to the privilege. The first denied, subject to later renewal of the motion, discovery of jobseeking records concerned solely with nonparty employers. The same order granted discovery of various other MESC records, including application cards of all those referred to Conoco.
Counsel below, speaking on behalf of MESC, strenuously contended that the names of nonparties should have been blocked out because their identity was "not essential" (on appeal, "not relevant") to a trial on the issues. It was urged that even without specific names, the application cards would reveal any existing pattern of discrimination. And it was suggested that strict and complete freedom from disclosure
The trial court was justified in finding these possible side effects were outweighed by the value of disclosure in this instance. The suit was brought as a class action; determination of the identity of the other members of the class to whom effective relief might be granted may be difficult or impossible unless applicants' names are available from the employment records.
The potential harm from disclosure of any communication subject to a privilege must be weighed against the benefits of disclosure. The possibility of harm to an administrative program and the invasion of privacy of persons who seek employment cannot be ignored. But in nearly every case involving similar state statutes, supra n. 3, the balance has been struck in favor of disclosure in court proceedings. In determining the availability of privilege a court may properly consider the possibility of entering protective orders, and in this instance the District Court did so. We are of the opinion that the District Court, in balancing the competing interests, did not abuse its discretion.
As a corollary, a trial court is duty-bound, where it orders production of documents in which there are strong policy reasons against public disclosure, to limit the availability and use of those documents and their contents by carefully drawn protective provisions. See, e. g., Baim & Blank, Inc. v. Bruno-New York, Inc., 17 F.R.D. 346 (S.D.N.Y. 1955). The court below entered extensive protective orders circumscribing access to and copying and use of the documents. The defendants state that some of the documents contain data concerning employment applicants, obtained in personal interviews and elsewhere, of a nature that would be embarrassing or denigrating to reveal — for example, physical or emotional handicaps, diseases disqualifying an applicant for certain employment, dissatisfaction with present employment. MESC can review its records and in any instance where such information appears can seek from the District Judge further protective orders that will give appropriate regard to the privacy and the dignity of the individuals affected.
Defendants also call our attention on this appeal to § 7412:
"All letters, reports, communications or any other matters, either oral or written, from the employer or employee to each other or to the commission or any of its agents, representatives or employees, which shall have been written, sent, delivered, or made in connection with the requirements and administration of this act, shall be absolutely privileged and shall not be made the subject matter or basis of any suit for slander or libel in any court of the State of Mississippi, unless the same be false in fact and maliciously written, sent, delivered, or made for the purpose of causing a denial of benefits under this act."