WARD v. PEABODY

KAPLAN, J.

The Legislature's Special Commission Concerning State and County Buildings (Commission), of which the named plaintiffs are the members, issued a summons to the respondent Endicott Peabody, a member of the Bar, formerly Governor of the Commonwealth, requesting him to appear and testify before the Commission and to produce certain documents in his possession or control. The respondent did not object to appearing in response to the summons, but he declined to produce the documents specified, although he did not invoke the privilege against self-incrimination and any claim of the attorney-client privilege was abandoned. The Commission accordingly commenced proceedings to enforce the documentary part of the summons, and the matter was heard by a judge of the Superior Court. The judge refused all enforcement but, assuming provisionally that he might be held wrong in that decision, went on to suggest which items of the summons should be enforced and which refused enforcement. On expedited appeal to this court, we entered a brief Order holding that the summons should be enforced according to its terms, except for certain items, as to which the Commission would be entitled at its request to another hearing in the Superior Court where its claims to production could be further considered and ruled on. We stated that a rescript and an opinion or opinions would follow.

1. Commission's Functions and Program. By early 1978, there had been intimations in the press and elsewhere about corruption in the award and supervision of construction contracts by agencies of government; criminal proceedings had been instituted against certain individuals alleged to be implicated; and revelatory hearings had been conducted by a subcommittee of the Joint Legislative Committee on Post Audit and Oversight. All this led to the adoption of Resolves 1978, c. 5, superseded in effect by Resolves 1979, c. 11, creating the "special commission" which in effect is the present plaintiff. The Commission was directed "to investigate and study as a basis for legislative action [i] the existence and extent of corrupt practices and maladministration concerning contracts awarded no earlier than [January 1, 1968] related to the construction of state and county buildings ...; [ii] the existence of conditions which tend or may tend to permit the occurrence of said practices and maladministration; and [iii] the existence of limitations on the powers and functions of those charged with the duty of approving, supervising or overseeing said contracts or with the enforcement of laws related thereto." The stated powers of the Commission included a power to issue process for appearance to give testimony and for production of documents, and where necessary to seek judicial enforcement of such process; also a power to grant immunity from prosecution for testimony before the Commission, contingent on judicial approval.

The Commission had discretion what to investigate and study within the range of the resolve, but there was one stated requirement or duty, namely, that it "shall include" in its investigation and study "consideration of the awarding, implementation and the subsequent events concerning the contract between the firm of McKee-Berger-Mansueto, Inc. [MBM] and the commonwealth relating to the management of construction of certain buildings on the Boston campus of the University of Massachusetts." The reference was to a contract of 1969 under which MBM, an architectural firm with its principal office in New York, received fees of about $5,000,000 for managing — in place of the State Bureau of Building Construction which ordinarily carried out that function — the construction of the university extension costing some $150,000,000, said to be the largest construction project undertaken by the Commonwealth to that time.

Under way about July, 1978, the program of the Commission, as described by its counsel, was first to consider, through investigation and hearings, the systemic features of existing procedures for the award and supervision of State and county construction contracts, a task falling to phase [iii] of the resolve. This included comparative examination of the procedures used in other States. As will be seen below, the tentative product of this part of the program was a package of legislative proposals introduced on the Commission's behalf on December 5, 1979. A second part of the program, to some extent overlapping and being prepared simultaneously with the first, was consideration of corrupt practices and the conditions permitting or fostering them — related to phases [i] and [ii].

2. Commission's Proposed MBM Investigation. Regarding MBM's operations in Massachusetts, including its construction-management contract with the Commonwealth, the Commission wanted to study whether or how, through contacts with or payments or contributions to persons holding official positions or others who might influence such persons, MBM might have been able to prejudice agency actions in the award of contracts or in the supervision of their performance, as well as to prevent official investigation of performance or to procure favorable official report thereof. That information on these topics might feasibly be secured through Commission investigation was suggested by a number of public records (besides many private sources available to the Commission). Notable among these was the trial in 1977 of State Senators Joseph J.C. DiCarlo and Ronald C. MacKenzie in the Federal District Court, at which the respondent testified; also the above-mentioned hearings in 1978 by the subcommittee of the Joint Legislative Committee on Post Audit and Oversight, at which the respondent testified and produced certain documents. As the DiCarlo-MacKenzie trial assumed importance in the judge's decision below, we add some detail about it, following the account of the evidence in United States v. DiCarlo, 565 F.2d 802, 803-805 (1st Cir.1977) (affirming convictions), cert. denied, 435 U.S. 924 (1978).2

In February, 1971, DiCarlo cosponsored a legislative order for an investigation of the university construction project. After the order was filed for adoption, the respondent and Gerald McKee, Jr., MBM's president, delivered a letter to DiCarlo responding to certain allegations that had been made about the project. DiCarlo, through his intermediary MacKenzie, ultimately demanded of McKee (through one Harding) payment of $40,000 in consideration of a report favorable to MBM. After adoption of the order, appointment of a committee (with DiCarlo as co-chairman) to carry it out, and hearings before the committee, MBM through McKee paid a total of $40,000 to MacKenzie destined for DiCarlo, and McKee was then able in effect to dictate the conclusions of the report issued by the committee. The defendants in the Federal prosecution were convicted of conspiracy to violate, and substantive violations of, the Hobbs Act (extortion affecting interstate commerce) and the Travel Act (use of facilities of interstate commerce for unlawful activities).

3. Summons. MBM had retained the respondent or his firm in order to assist the company to secure the award of the management contract. The respondent continued to represent the company during the period in which the contract and performance thereunder came into question. Accordingly, it was very natural for the Commission, pursuing its stated duty under its resolve, to seek the respondent's testimony and production of pertinent documents in his control. The documentary material could be thought particularly useful in reconstructing the central occurrences which antedated the Commission's investigation by eight to ten years.

Commencing in February, 1979, there was negotiation between counsel for the respondent and the Commission looking to the voluntary production of the papers. On June 13, 1979, Commission counsel sent the respondent a letter with eleven groupings or categories of the documents desired, which were to be furnished, if they existed, from a total of not more than, roughly, fourteen expandable file folders comprising all the respondent's papers relating to MBM (minus the documents previously produced at the request of the Post Audit subcommittee). The respondent honored the Commission's request to the extent of turning over a folder (and file box) containing primarily "tub cards" reflecting time charged to the MBM account with short or cryptic notations as to the nature of the work underlying those charges. This production fell far short of the request and so, after some further negotiation, the Commission, following rule 4(a) of its rules of procedure, issued a summons dated October 12, 1979, requiring the respondent's appearance to testify and to produce the documents substantially as described and classified in the June 13 letter (minus those submitted after request).

Upon the respondent's application to the Commission to quash the documentary part of the summons, the Commission pursuant to its rule 4(h) held a closed hearing on November 9 at which there was argument by counsel on both sides. On November 14 the application was denied, with findings, rulings, and order holding that the summons was not unreasonable or overbroad, that the papers were not protected by privilege or a "work product" rule, and that there had not been substantial compliance with the summons. On November 16 the Commission, by its members, acting under the terms of the resolve, filed a petition in this court for Suffolk County for enforcement of the summons. The single justice transferred the petition to the Superior Court, which was also competent under the resolve, and a hearing was held there on December 4, 1979. This chanced to be the day of an announcement by the Commission that it was causing to be filed the following day proposed legislation that would, among other proposed reforms, revise the procedure for award of construction contracts and create an office of "Inspector General" with powers of investigation and oversight.

The documents called for by the summons were those in the control of the respondent relating or referring to: (1) billings of MBM3 by the respondent's firm, including summaries of services rendered; (2) billings of MBM by other firms or persons; (3) investigation of new business possibilities for MBM and advice in connection therewith; (4) negotiations of contracts for MBM; (5) former investigations of MBM or its activities proposed or ongoing at the time; (6) contacts by the respondent with elected or appointed government officials or government employees regarding MBM; (7) payments or promises thereof made by or on behalf of MBM to government officials or candidates for office or members of their immediate families; (8) contracts of MBM with members of the respondent's administration or campaign staff while he was Governor (1963-1965); (9) any of seventy-four named persons in connection with MBM; (10) respondent's election to the board of directors of Scientific Resources Corporation and potential conflict of interest with his representation of MBM; (11) direct or indirect financial interest of the respondent in MBM.

4. Rulings on Summons. At the hearing in Superior Court on December 4, 1979, counsel discussed the documents as a whole or in their categories; in camera inspection of the papers was not requested or undertaken by the judge.

In his findings, rulings, and order of January 24, 1980, the judge held the summons completely unenforceable on grounds that the Commission's powers (or at least its power to investigate by summons) expired with its submission on December 5 of draft legislation, or that enforcement would contravene the supremacy clause of the United States Constitution because of collision with the Federal prosecution and convictions of DiCarlo and MacKenzie. But if those grounds for denial should fail, then the judge was of opinion that production of certain categories or items therein should anyway not be compelled: categories (3) and (5) because calling for "work product"; (6) for the same reason and because it was "overbroad"; (8) because overbroad and outside the scope of the resolve. Further, production in category (4) should be ordered only as to preliminary drafts of contracts, and in (9) only as to letters to or from the listed individuals or dates of telephone conversations with them. Judgment entered for the respondent dismissing the petition.

The case reached us on the appeal of the members of the Commission from the judgment;4 the respondent lodged no cross appeal. Our Order dated February 14 rejected the grounds for denying all enforcement, and held that in the circumstances of the case "work product" was not a ground for denying production of any category or item, but irrelevance of any demanded material to the purposes of the resolve would be a ground, and in that connection consideration of privacy interests should play a part. The Commission would be at liberty to apply to the Superior Court for hearings on relevancy as to the categories (6 and 8) and parts of the categories (4 and 9) denied by the judge in his alternative ruling; otherwise the summons was held subject to immediate enforcement.

5. Discussion. (a) General precepts. Under its resolve the Commission was to investigate and study the condition of the law and the nature of current practice, legitimate and otherwise, in a field subject to regulation by the Legislature, and to advise and assist that body by proposing such remedial legislation as informed thought might suggest. Thus the resolve and the inquiry it authorized were within lawful bounds entering as they did "into those areas in which [the Legislature] may potentially legislate or appropriate." Barenblatt v. United States, 360 U.S. 109, 111 (1959). See Attorney Gen. v. Brissenden, 271 Mass. 172, 176, 181 (1930); Watkins v. United States, 354 U.S. 178, 187 (1957); People ex rel. McDonald v. Keeler, 99 N.Y. 463, 485 (1885). Information in the form of documents called for by Commission process, like information sought from a witness on oral examination, must be relevant to the subject of investigation as defined by the resolve. See Sweezy v. New Hampshire, 354 U.S. 234, 254-255 (1957); McGrain v. Daugherty, 273 U.S. 135, 176-178 (1927); Liacos, Rights of Witnesses Before Congressional Committees, 33 B.U.L. Rev. 337, 358 (1953). But in testing relevance it must be understood that too rigid or exacting an approach might unduly trammel the Commission's enterprise which, on its investigatory side, could not, at least at the beginning, know exactly its own limits.5

The record of some legislative investigating committees and commissions of relatively recent memory warns of the possibility of abuse of the information gathering function, and so, in the first place, nice care must be taken to allow legitimate claims of standard privileges against even demand for relevant information: important here are the privilege against self-incrimination and the attorney-client privilege. See, e.g., Quinn v. United States, 349 U.S. 155, 161 (1955). Inquiries in some sense germane to the work of a commission may trench so far on First Amendment rights — for example, associational rights — that the information demanded can be withheld without courting contempt. See Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963); Barenblatt v. United States, supra. At the edge of relevancy, when the value to the investigation of a piece of demanded information is seen to be marginal, courts have been prepared to assess and allow as a counterweight "the right to be exempt from all unauthorized, arbitrary or unreasonable inquiries and disclosures in respect of [a witness's] personal and private affairs" (Sinclair v. United States, 279 U.S. 263, 292 [1929]) — a privacy interest to which we return at point (d) below. Finally, there is protection against harassing tactics unjustified by the requirements of sober investigation.6

(b) Supposed illegality of entire documentary part of summons. (1) Expiration of investigatory power. As noted, the Commission caused proposed remedial legislation to be introduced in the House on December 5, 1979. According to the judge, this must have the effect of putting the Commission entirely out of business or at least aborting its power of investigation and thus invalidating the outstanding summons. The judge's point appears to have been that, as the Commission had discharged its function of advising the Legislature, any further investigation by it must be bootless, unless, indeed, its purpose was to harass the respondent and perhaps to try to show him guilty of a crime, with the possible collateral purpose of creating an atmosphere in the Legislature, or at large, conducive to the passage of the proposed legislation.7

If the resolve, fairly interpreted, meant to cut off Commission power to investigate upon the submission of draft legislation, then of course the judge was right, for investigation may not exceed the time allotted to the Commission by the resolve, any more than investigation may exceed the boundaries of relevance to the subject matter assigned by the resolve. See Cabot v. Corcoran, 332 Mass. 44, 46-48 (1954). But the text of the resolve does not bear such an interpretation. It states: "The commission shall cease its investigation and study upon filing its final report...." This final report, by the terms of the resolve, was not due until June 30, 1980.8 It is perhaps enough to say that a statement by the Commission accompanying the release of the December 5 proposals indicated that it had not yet completed drafting and submitting legislation (and, besides, in the ordinary course, a commission might be expected to assist the Legislature in working out amendments to the drafts submitted on December 5 as those took the usual internal course toward passage or defeat). But we are far from suggesting that investigatory power would lapse if the Commission had firmly decided on December 5 that it would make no further legislative proposals, for a final report, supported by investigation, might be useful to the Legislature in any event. See School Comm. of Boston v. Finance Comm'n of Boston, 364 Mass. 187, 192 (1973); Hutcheson v. United States, 369 U.S. 599, 616 (1962) (plurality); Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 205 (1926).9

(2) Federal supremacy. The judge asserted as a further basis for refusing enforcement of the summons that it was forbidden by art. VI, cl. 2, of the Federal Constitution.10 He thought the convictions of DiCarlo and MacKenzie on the Federal charges precluded the Commission as a State entity from investigating the same congeries of happenings;11 especially so, in his view, where the Commission was proceeding on a theory that MBM or those associated with the company were wrongdoers, whereas the Federal prosecution limned them as having been the parties wronged.

The judge perhaps was intimating that the Federal convictions should have a kind of res judicata effect as against the inquiry directed by the State Legislature. But the remoteness of that suggestion from settled law may be shown by recalling the rule that after Federal conviction under Federal law a State is not constitutionally inhibited from prosecuting the same person on the same facts under the State law, the "sovereignties" being considered separate. See Commonwealth v. Cepulonis, 374 Mass. 487, 490-492 (1978); Bartkus v. Illinois, 359 U.S. 121 (1959); Abbate v. United States, 359 U.S. 187 (1959).

If, in a general sense, the supremacy clause tries to guard against Federal policy being thwarted or undermined by inconsistent State activities, it is hard to see how that objective could be defeated by the present summons or its aftermath. The case is quite different from one in which a State legislative committee once attempted to conduct an investigation of a Federal agency.12 We may observe, incidentally, that the Commission is not shown to be committed to proceeding on a given theory against or about MBM; it desires to investigate the facts.

(c) "Work product." The judge in his alternative ruling would excuse production of certain of the materials in the law firm's files, assumed to be relevant, on the sole ground that they constituted work product of lawyers. According to the judge's conception, "there should be little or no part of a lawyer's file which is not protected from invasion," and the Commission could not show "good cause" to the contrary, because production "cannot aid the draft of legislation" — evidently a return to the proposition shown to be ill-considered at point (b)(1) above. The judge's general statement fails to meet the specifics of the present case.

The work product doctrine, drawn from the well-known case of Hickman v. Taylor, 329 U.S. 495 (1947), is intended to enhance the vitality of an adversary system of litigation by insulating counsel's work from intrusions, inferences, or borrowings by other parties as he prepares for the contest. Id. at 511; Developments in the Law — Discovery, 74 Harv. L. Rev. 940, 1028-1029 (1961). Originally developed in connection with civil litigation, the doctrine has been extended to criminal cases. United States v. Nobles, 422 U.S. 225, 238 (1974); In re Special September 1978 Grand Jury II, No. 79-1218, slip op. at 13 (7th Cir. April 16, 1980).

The field of operation of the work product rule is, as indicated, preparation for litigation. See In re Fischel, 557 F.2d 209, 212-213 (9th Cir.1977); Colton v. United States, 306 F.2d 633 (2d Cir.1962), cert. denied, 371 U.S. 951 (1963); 8 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 2024, at 198 (1970). This includes litigation which, although not already on foot, is to be reasonably anticipated in the near future. Special Grand Jury, slip op. at 21. There is no indication in the present case that any part of the material called for had the necessary relation to litigation, pending or prospective, and it is in fact known that at least some of it was connected rather to efforts to obtain business for MBM.

We may add on this score that even if it had been shown that any of the material was created with a definite view to litigation, or even if that requirement were to be casually disregarded, the respondent would be met by the fact that the occasions for the writing of these papers are now long past, and as far as appears neither the papers nor their substantial equivalents are available from another source. These are factors often held to be favorable to requiring production. See, e.g., McDougall v. Dunn, 468 F.2d 468, 474 (4th Cir.1972); United States v. Murphy Cook & Co., 52 F.R.D. 363, 364 (E.D. Pa. 1971).

A further quite distinctive factor in the present case is that the words and deeds of the attorney are themselves a subject of relevant inquiry by the Commission. It has not been supposed that the Hickman policy has anything to do with such a situation. See Truck Ins. Exch. v. St. Paul Fire & Marine Ins. Co., 66 F.R.D. 129, 136 (E.D. Pa. 1975); Kirkland v. Morton Salt Co., 46 F.R.D. 28, 30 (N.D. Ga. 1968). Otherwise stated, in the singular instances "when the activities of counsel are inquired into because they are at issue in the action before the Court, there is cause for production of documents that deal with such activities, though they are `work product.'" 4 Moore's Federal Practice par. 26.62[4], at 26-447 (2d ed. 1979). See Kearney & Trecker Corp. v. Giddings & Lewis, Inc., 296 F.Supp. 979, 982 (E.D. Wis. 1969); Bourget v. Government Employees Ins. Co., 48 F.R.D. 29, 33 (D. Conn. 1969); Gulf Constr. Co. v. St. Joe Paper Co., 24 F.R.D. 411, 414-415 (S.D. Tex. 1959). Cf. Special Grand Jury, slip op. at 2 n. 1, 3 n. 3.

Finally we observe that the client, an intended beneficiary of the Hickman doctrine, does not here assert any claim thereunder, and there has been a waiver of any attorney-client privilege.

Thus several factors cumulate to render "work product" an inadequate basis for excusing the production. In reaching this conclusion, we are not to be understood as saying that the work product idea, or some implication from it, can never apply in a legislative investigation. It is fair to add, however, that we have not yet seen a decision where work product has been applied in that context.13

(d) Privacy in relation to relevance. To the characterization "work product" which he attached to category (6), the judge added "overbroad"; he characterized category (8) as outside the resolve and overbroad; and in two categories, (4) and (9), he restated and reduced the scope of the materials to be produced, evidently for the reason that he thought the categories as described in the summons to be overbroad. In speaking of overbreadth, the judge was evidently concerned with irrelevance, not with any lack of the particularity of the demands. We thought that a second, closer look was called for on this question if the Commission should elect to request it.

In respect to relevance, we suggested in the Order that privacy interests of the respondent and possibly of others should be considered. We now speak of privacy in the general sense of a right belonging to every person, not in the special sense in which it appears in discussions of the Hickman rule. We indicated (as noted above) that as the relevance of a document or part of it was seen to be attenuated or remote, the existence of a personal interest in nondisclosure might well persuade a court against ordering production.

It seems to us on a review of the cases that such a humane factor has long entered into decisions about relevance in relation to legislative investigations. See Finance Comm'n of Boston v. McGrath, 343 Mass. 754, 761 (1962) (courts should refrain from helping a commission "improperly to invade the witness's privacy to the extent that privacy is constitutionally protected"); Burnham v. Morrissey, 14 Gray 226, 241 (1859) (witness's privacy protected by limiting range of required production); Watkins v. United States, 354 U.S. 178, 204 (1957) ("[r]emoteness of subject can be aggravated by a probe for a depth of detail even farther removed from any basis of legislative action"); Sweezy v. New Hampshire, 354 U.S. 234, 248 (1957) ("[the investigator] delved minutely into the past conduct of petitioner thereby making his private life a matter of public record"). See also Kalven, Meikeljohn and the Barenblatt Opinion, 27 U. Chi. L. Rev. 315, 327 (1960); Redlich, Rights of Witnesses Before Congressional Committees: Effects of Recent Supreme Court Decisions, 36 N.Y.U.L. Rev. 1126, 1148-1150 (1961); T. Taylor, Grand Inquest: The Story of Congressional Investigations 172 (1955). Sometimes this point about privacy as a qualifier of relevance has not been made the express basis of decision but can be perceived to have entered into narrowing interpretations of the scope of resolutions authorizing investigations (see United States v. Rumely, 354 U.S. 41, 46 [1953]), or into demands for greater clarity or particularity in the resolutions if they were to be made the basis for compulsory process. See Sweezy v. New Hampshire, supra at 253; Watkins v. United States, supra at 187.14

In the present case privacy interests might become a factor in decision as the categories or items mentioned seek information that may shade into slight relevance, while possibly exposing personal relationships of no concern to legitimate investigation. The respondent would be entitled to press such privacy considerations if the Commission applied in the Superior Court for enforcement of those parts of the summons.

A rescript will enter.