Informers In Civil Cases: Keeping the Snitch a Secret
By Joel M. Androphy and Warren W. Harris
INFORMERS IN CIVIL CASES
ABC, Inc., a designer of computer programs, discovers that a terminated employee is selling software developed by the company. ABC reports the problem to the F.B.I., requesting immediate results. The F.B.I. tells ABC that it is interested, but needs ABC’s expertise to develop a solid case. ABC’s security staff, armed with audio and video tape recorders tape recorders, listening devices, and tracking equipment, sets out to compile information for the government. ABC’s staff even sets up an undercover purchase of ABC’s own software from the target of the investigation. ABC reports its results to the government, and indictments are returned.
ABC then retains you to file a civil suit for theft of trade secrets and copyright violations. During the course of discovery in that case, the defendants request all information about ABC’s involvement in the criminal investigation. You object, citing the identity of informer privilege.1 This article will discuss this growing use of civil discovery to reveal the identity of the informers in related criminal cases and provide practical advice on how to seek disclosure of such information as well as how to defend against such disclosure.
THE IDENTITY OF INFORMER PRIVILEGE IN CIVIL CASES
Rule 508 of the Texas Rules of Civil Evidence2 establishes a privilege against disclosing the identity of an informer. Rule 508(a), which establishes the privilege, reads as follows:
(a) Rule of Privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.3
The leading case on the privilege is Roviaro v. United States.4 As the United States Supreme Court stated in Roviaro:
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 the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.5
The privilege is allowed so as to preserve the informer’s right to be protected against retaliation.6 Courts and commentators have observed that the identity of informer privilege is well established and that its soundness cannot be questioned.7
The identity of informer privilege protects not only the informers’ identity, but also protects communications when that disclosure would operate to disclose the informers’ identity.8 Further, the identity of informer privilege applies to persons who cooperate with or assist a law enforcement agency on a confidential basis as well as to those who actually supply information.9
Although the identity of informer privilege normally arises in criminal proceedings, it applies in civil cases as well.10 In civil litigation, the issue is whether disclosure of the informer’s identity is necessary to a fair determination of a material issue on the merits of the case.11 Courts have consistently upheld the identity of informer privilege when the information sought was collateral to the main issue in the case.12
The privilege is less likely to yield in a civil case because the informer’s identity is not usually essential to the preparation of a civil case.13 The fact that the guilt or innocence of a criminal defendant is qualitatively more significant than the outcome of civil litigation is a factor to be considered when the privilege is asserted in a civil proceeding.14 If the informer was neither a witness to nor active participant in the conduct that gave rise to the civil cause of action, the party seeking to compel the identity of the informer has a formidable burden in establishing a justification for overriding the privilege; that burden can normally be met by a compelling demonstration that the information sought from the alleged informer is likely to influence the outcome of the case or is essential to the party’s preparation for trial.15 Further, the burden is on the party seeking to override the privilege to demonstrate the need for disclosure.16
Rule 508(c) establishes several exceptions to the privilege.17 No privilege exists if the informer discloses his identity to a person who would have cause to resent the communication.18 The privilege is also waived if the informer appears as a witness for the public entity.19 If the public entity is a party to the civil case, the court may require disclosure of the informer’s identity when the informer can give testimony necessary to a fair determination of a material issue on the merits of the case.20 Additionally, when information from the informer is relied on to establish the legality of the means by which evidence was obtained, the court may order the informer’s identity to be disclosed if it is not satisfied that the informer was reasonably believed to be reliable or credible.21
COMPARISON TO OTHER PRIVILEGES
Identity of Informer Privilege in Criminal Cases
The identity of informer privilege itself is basically the same in criminal cases as in civil cases. Rule 508(a) of the Texas Rules of Criminal Evidence22 established the identical privilege as rule 508(a) of the Texas Rules of Civil Evidence.23 What differs, however, are the circumstances in which the privilege must yield.
When the disclosure of the identity of an informer or the informer’s communications is relevant and helpful to the accused or essential to a fair determination of the criminal case, the privilege cannot be enforced.24 The analysis calls for a balancing test, taking into account the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.25 The burden is on the defendant to show that the disclosure of the informer or communication is required.26In criminal cases, the privilege may not be asserted if the state objects.27
Law Enforcement Privilege
Another privilege that is often relevant in cases involving the identity of informer privilege is the law enforcement privilege. The law enforcement privilege is well established in the law.(28) The reasons or the privilege are numerous and similar to those for grand jury secrecy.29 Some of the reasons for the law are as follows: (1) to prevent interference with an investigation or law enforcement proceeding, e.g., revelation of the direction or other confidential details of the investigation, premature revelation of the government’s case thereby facilitating the construction of defenses, closing channels of useful, voluntarily submitted information, identification of prospective new defendants, revelation of subjects of the investigation, and methods of surveillance; (2) to prevent disclosure of confidential investigative techniques, procedures, and activities; (3) to prevent injury to government effectiveness, e.g., witness intimidation, threats to government agents or officials, impaired agency functioning; (4) to prevent the restriction of governmental access to confidential sources of information; and (5) the public interest in ensuring candid conclusions and recommendations by governmental agencies.30
INVOKING THE PRIVILEGE
An issue that often arises in cases involving the identity of informer privilege is which entity or party can invoke the privilege. Rule 508(b) of the Texas Rules of Civil Evidence provides that “[t]he privilege may be claimed by an appropriate representative of the public entity to which the information was furnished.”31 Thus, the government, as the holder of the privilege, can invoke it. The problem in civil litigation is that the government is usually not a party to the action when the issue of the privilege arises.
Private Litigant Invoking Privilege
When the government is not a party to the civil action, the question becomes whether the civil litigant can invoke the privilege. A private litigant should be able to invoke the privilege when it is necessary.
McCormick recognized that the one charged with being the informer, and even the judge when neither the government nor the informer is represented at the trial, may invoke the privilege.32 The advisory committee’s note to proposed rule 510 of the Federal Rules of Evidence, which establishes the same privilege as rule 508 of the Texas Rules of Civil Evidence, also addresses this situation:
Normally the “appropriate representative” to make the claim will be counsel. However, it is possible that disclosure of the informer’s identity will be sought in proceedings to which the government, state, or subdivision, as the case may be, is not a party. Under these circumstances effective implementation of the privilege requires that other representatives be considered “appropriate.”33
In many situations, issues regarding the privilege will arise when it is necessary for the party or witness to invoke the privilege. For example, in civil cases, the issue often first arises in a deposition.34 At that time, it is simply not practical for anyone other than the party or witness to invoke the privilege. In such a situation, it should be sufficient for the witness to invoke the privilege. Careful practitioners should, however, consider seeking to have the government invoke the privilege as soon as practical, as discussed below.
Government Invoking Privilege
For the government to invoke the privilege, it must obviously bring the matter before the court. The easiest way to invoke the privilege is for the party resisting disclosure35 to file an affidavit by the appropriate government representative36 as an exhibit to the response to the motion seeking to compel the production of this information. This should be sufficient to invoke the privilege.
If the party seeking production of the privileged information objects to this method of invoking the privilege by government, however, the government may want to make an appearance in the civil case for the limited purpose of asserting the privilege.37For example, the United States Code allows the United States Attorney General to enter an appearance in any federal or state court proceeding to attend to the interests of the Unites States.38 Such an appearance by the government should cure any complaint about the government’s methods of invoking the privilege.
COMPELLING PRODUCTION OF INFORMANT SOUGHT
When a party seeks the production of information that the party resisting discovery claims is protected by the identity of informer privilege, the party seeking production should treat this situation similar to other situations when allegedly privileged information is sought. If the parties cannot resolve the disagreement without court intervention, typically the party seeking disclosure would file a motion to compel production of the information. The party seeking disclosure should ask the trail court to review the information sought in camera to determine whether it is discoverable.39 If the trail court refuses to order production of the information sought, the party seeking disclosure should have the information that the court reviewed in camera sealed and made part of the record so as to have a complete record for review by the appellate court in the event mandamus or other review is sought of the trial court’s ruling.40
When a party is seeking the disclosure of information protected by the identity of informer privilege,41 the party resisting disclosure should move for a protective order.42 If necessary, the party resisting discovery should file the information under seal for the court to review in camera.43
Scope of Protective Order
One important thing to remember when resisting discovery of information under the identity of informer privilege is the scope of the privilege. As discussed above,44 the privilege protects more than just the informer’s identity. Thus, the scope of the protective order sought should be broad enough to protect all privileged information.
In many situations when the privilege is asserted in a civil context, the party seeking information will seek it directly from the civil litigant rather than the government. The identity of informer privilege should apply equally regardless of whether the privileged information is sought from the government or from a civil litigant.
Although the privilege is held by the government. When the privilege is properly asserted it should apply regardless of whether the information is held by the government, an alleged informer, or another.45 Any other result would destroy the privilege because the party seeking to override the privilege could totally circumvent it simply by filing a civil suit and seeking the privileged information directly from the civil litigant, i.e., the alleged informer. Thus, the protective order should be drafted broadly enough to prevent disclosure of the privileged information even if it is sought directly from an alleged informer rather than the government.
Typically, the language in the protective order should protect the party resisting discovery from discovery seeking any testimonial evidence or production of information that would disclose the identity of any person who has furnished information relating to violations of the law by the defendant in the criminal case to the law enforcement agency involved in the criminal case or other law enforcement officers conducting the investigation. Additionally, the protective order should protect the party resisting discovery from discovery seeking any testimonial evidence or production of information that would disclose the identity of any person who has assisted in the investigation of violations of the law by the defendant in the criminal case investigated by the law enforcement agency involved in the criminal case or other law enforcement officers. This language should be broad enough to protect the privileged information in most cases.
Relevance of Information Sought
Another ground for non-disclosure of allegedly privileged information is that, regardless of whether it is privileged, the information sought is discoverable because it is not relevant to the subject matter of the case. If the information sought would neither be admissible at trial nor reasonably calculated to lead to the discovery of admissible evidence, this provides the party resisting discovery with an independent reason for non-disclosure.46
This situation is likely to arise in civil cases involving the identity of informer privilege when the criminal defendant has been convicted before the resolution of the civil litigation. The party seeking discovery, i.e., the criminal defendant, will often claim that because the other party will use the conviction for impeachment, the identity of the informer is relevant to explain that the conviction is attributable to that party’s conduct. This claim is generally insufficient, however, to require disclosure of the informer’s identity.
A witness’ credibility may be attacked by offering evidence that the witness has been convicted of a crime that was a felony or involved moral turpitude.47 Evidence of the conviction may be elicited from the witness or it may be established by public record.48 Details of the offense, however, are generally not admissible.49
Likewise, the witness is not permitted to retry the case on which the conviction is based. The judgment of conviction is conclusive and should not be subjected to a collateral attack. To allow such an attack would result in a vast waste of judicial resources to no avail: the defendant will still have a final criminal conviction. Justice Holmes, in what McCormick has called the leading opinion on this issue, stated the rule as follows:
The plaintiff, in cross-examination of one of the defendant’s witnesses, put in a conviction of crime to discredit him. Upon redirect examination the witness was asked to state the circumstances, the evidence being offered to show the extent of the wickedness involved in the act, and to show the circumstances. This evidence was excluded. Logically, there is no doubt that evidence tending to diminish the wickedness of the act … does meet, as far as it goes, the evidence afforded by the conviction … Nevertheless, the conviction must be left unexplained. Obviously, the guilt of the witness cannot be retired. It is equally impossible to go behind the sentence to determine the degree of guilt. Apart from any technical objection, it is impracticable to introduce what may be a long investigation of a wholly collateral matter into a case to which it is foreign, and it is not to be expected or allowed that the party producing the record should also put in testimony to meet the explanation ready in the mouth of the convicted person. Yet, if any one side goes into the matter, the other must be allowed to also.50
In criminal cases, the witness is sometimes allowed a brief explanation or denial concerning the prior conviction.51 Thus, if the court in its discretion does allow the convicted criminal defendant to make a statement regarding the conviction after being impeached with it, the statement should be limited to a brief and general statement in explanation, mitigation, or denial of the guilt.52 The defendant should not be allowed to make a collateral attack on the conviction and retry the criminal proceeding in the civil action.
The identity of the informer privilege is often overlooked in civil litigation. Because criminal courts are generally reluctant to order the disclosure of the informer’s identity, aggressive practitioners often use the civil arena to bypass the privilege. By recognizing the application of the privilege in civil litigation, practitioners will be better able to maintain the privilege in those situations when the informer’s identity should remain secret.
- The authors recognize that, depending on the particular situation, other limitations on discovery may be applicable, e.g., the work product doctrine and grand jury secrecy. This article will only discuss the applicability of the identity of informer privilege.
- Tex. R. Civ. Evid. 508, See generally David E. Keltner, Texas Discovery ¶¶ 3:393-404, at 3-74 to 3-75 (1993).
- Tex. R. Civ. Evid. 508(a).
- 353 U.S. 53 (1957).
- Id. at 59, quoted in Bodin v. State, 807 S.W.2d 313, 316 (Tex. Crim. App.) (en banc), appeal after remand, 816 S.W.2d 770 (Tex. App.- Houston [14th Dist.] 1991, no pet.) Federal cases are helpful to interpret the state identity of former privilege. Bodin, 807 S.W.2d at 317 (criminal case construing Tex. R. Crim. Evid. 508, which establishes the identical privilege to Tex. R. Civ. Evid. 508 (a)); see also infra note 10.
- Brock v. On Shore Quality Control Specialists, Inc. 811 F.2d 282, 283, 284, (5th Cir. 1987); see United States v. One 1986 Chevrolet Van, 927 F.2d 39, 43; (1st Cir. 1991).
- One 1986 Chevrolet Van, 927 F.2d at 43; see also 8 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2019, at 155 (1970). For further discussion of the sound reasoning of the privilege, see 1 Steven Goode, Olin G. Wellborn II & M. Michael Sharlot, Guide to the Texas Rules of Evidence; Civil and Criminal § 508, at 408-09 (Texas Practice 2d ed. 1993); 1 McCormick on Evidence §111, at 407-08 (John W. Strong ed. 4th ed. 1992); & John H. Wilmore, Evidence §2374(f), at 762 (John T. McNaughton ed. rev. 1961).
- See Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 306-07 (5th Cir. 1972); see also Roviaro, 353 U.S. at 60.
- Black v. Sheraton Corp. of Am., 564 F.2d 550, 553 (D.C. Cir. 1977); cf. Brock, 811 F.2d at 284.
- State v. Lowry, 802 S.W.2d 669, 673 (Tex. 1991) (orig. Proceeding); Warford v. Childers, 642 S.W.2d 63, 66 (Tex. App. – Amarillo 1982) (citing Bates 555 S.W. 2d 420, 430 (Tex. 1977)); see also One 1986 Chevrolet Van, 927 F.2d at 43; Brock, 811 F.2d at 283, Lowry, Warford, and Bates are the only Texas civil cases discussing the identity of informer privilege. For this reason, most citations will be federal civil or Texas criminal cases.
- One 1986 Chevrolet Van, 927 F.2d at 43; see Tex. R. Civ. Evid. 508(c); cf. Warford, 642 S.W.2d at 67.
- E.g., Holman v. Coyce, 873 F.2d 944, 947 (6th Cir. 1989); Brock 811 F.2d at 284; Black, 564 F.2d at 552-53; Warford, 642 S.W.2d at 67.
- One 1986 Chevrolet Van, 927 F.2d at 43: Holman, 873 F.2d at 946-47; see also 8 Charles A. Wright & Arthur R. Miller, supra note 7, § 2019, at 156-57 (“[C]ivil cases in which disclosure of an informer’s identity has been required are few indeed while there are many cases in which disclosure has been refused.” (Footnote omitted)).
- Holman, 873 F.2d at 946.
- Id. at 947.
- One 1986 Chevrolet Van, 927 F.2d at 43.
- Tex. R. Civ. Evid, 508(c).
- Id. 508(c)(1).
- Id. 508(c)(2).
- Id. 508(c)(3).
- Tex. R. Crim. Evid. 508(a).
- Tex. R. Crim. Evid. 508(a).
- Roviaro v. United States, 353 U.S. 53, 60-61 (1957); see also Tex. R. Crim. Evid. 508(c)(2).
- Roviaro, 353 U.S. at 62.
- Rugendorf v. United States, 376 U.S. 528, 534-35 (1964).
- Tex. R. Crim. Evid. 508(b)(2). This exception does not appear in the civil rule. See infra note 31.
- See e.g., Black v. Sheraton Corp. of Am., 564 F.2d 531 (D.C. Cir. 1977); Freedom of Information Act, 5 U.S.C. §522(b)(7)(1988).
- Of course, as with a grand jury witness, the prosecution or law wnforcement cannot prevent an informer from disclosing information that the informer may have about the investigation, although law enforcement may prosecute an informer if revelation of the information violates a penal statute. The informer cannot, however, be compelled to disclose that information by opponents in civil litigation. See Rabbit v. Department of Air Force, 401 F.Supp. 1206, 1209 (S.D.N.Y. 1974).
- See generally Mark A. Larkin, Federal Testimonial Privileges § 5.02 (1993).
- Tex. R. Crim. Evid. 508(b).
- 1 McCormick on Evidence, supra note 7, §111, at 409 (citing cases); see also 1 Steven Goode et. al., supra note 7, §508, at 409 (“Where the public entity is a party, as is typicality the case, the appropriate representative ordinarily will be counsel. In a purely private action, effective implementation of the privilege demands that others be considered appropriate representatives.”).
- Proposed Fed. R. Evid. 510 advisory committee’s note, F.R.D. 315, 379 (1971) (Revised Proposed Draft).
- As a practical point, care should be taken in the manner in which the privilege is asserted. For example, if the issue arises in a deposition, counsel who will be objecting and asserting the privilege should anticipate the questioning in this area. If counsel delays in asserting the privilege, it may be readily apparent from the objection that the deponent is actually the informer.
- The procedure for compelling and defending against the production of this information is discussed infra Parts IV-V.
- See Tex. R. Civ. Evid. 508(c)(2), (3). An example of such an affidavit and the type of allegations that should be made are included in Appendix B. This sample statement of interest also assumes that the criminal case was in federal court, but the civil case is in state court. The same type of allegations should be made in the statement of interest regardless of the jurisdictions involved in the particular case.
- An example of an appearance by the government and the type of allegations that should be made are included as Appendix B. This sample statement of interest also assumes that the criminal case was in federal court, but the civil case is in state court. The same type of allegations should be made in the statement of interest regardless of the jurisdictions involved in the particular case.
- 28 U.S.C. § 517 (1988).
- See Tex. R. Civ. Evid. 508(c)(2), (3).
- See id.
- For a discussion of the procedure to follow in invoking the privilege, see supra Part III.
- See Tex. R. Civ. p. 166b(5).
- See State v. Lowry, 802 S.W.2d.669, 673 (Tex. 1991) (orig. proceeding); see also Tex. R. Civ. Evid. 508(c)(2), (3).
- See supra notes 8-9 and accompanying text.
- The flaw in the argument that the privilege does not apply when the information is sought from a civil litigant is easily seen when an analogy is made to a more familiar privilege, the attorney-client privilege. That privilege is held by the client, not the lawyer. See Tex. R. Civ. Evid. 503(b). Nevertheless, the attorney-client privilege does not give way when privileged information is sought from the lawyer, even though the lawyer is not the privilege-holder. Likewise, the identity of informer privilege should not give way when privileged information is sought from the alleged informer, even though the informer is not the privilege-holder.
- Tex. R. Civ. P. 166b(2)(a).
- Tex. R. Civ. Evid. 609(a).
- See Garcia v. State, 730 S.W.2d 202, 204 (Tex. App. – San Antonio 1987, no pet.) (criminal case constructing identical provision of Tex. R. Crim. Evid. 609); see also Mays v. State, 726 S.W.2d 937, 953 (Tex. Crim. App. 1986) (en banc) (criminal case construing predecessor to Tex. R. Crim. Evid. 609), cert. denied, 484 U.S. 1079 (1988).
- Lamaureux v. New York, N.H. & H. R.R., 169 Mass.338, 47 N.E. 1009, 1010 (1897) (citations omitted).
- E.g., Poore v. State, 524 S.W.2d 394, 296 (Tex. Crim. App. 1975). But see 1 Steven Goode et al., supra note 7, §609 at 604 (calling this practice “illogical under the terms of the rules, which premise impeachment on the fact of conviction”). No cases have been found discussing this precise issue under rule 609 of the Texas Rules of Civil Evidence.
- See 1 McCormick on Evidence, supra note 7, §42 at 152.
Copyright ©1994 by Warren W. Harris and Joel M. Androphy. All right reserved.
ABC, INC., PLAINTIFF,
DONALD DEFENDANT, DEFENDANT.
IN THE DISTRICT COURT OF _________ COUNTY, TEXAS
_______TH JUDICIAL DISTRICT
THE STATE OF TEXAS
COUNTY OF _______
BEFORE ME, the undersigned authority, on this day personally appeared __________________________, who being by me first duly sworn upon his oath, stated as follows:
- My name is __________________________. I am over twenty-one years of age. I am of sound mind and am fully competent and authorized to make this affidavit. I have personal knowledge of the statements of fact contained herein, and the statements contained herein are true and correct.
- I am an Assistant United States Attorney for the _________ District of Texas. I am the attorney in charge for the United States in United States of America v. Donald Defendant, Criminal No. H-94-000, in the United States District Court of the __________ District of Texas.
- The above criminal case arises out of an investigation conducted by the United States Customs Service of the Treasury Department, a department and agency of the United States. The United States Customs Service is charged with the investigation and prosecution of civil and criminal violations of the Trading with the Enemy Act, 50 U.S.C. App. §§ 1 et. seq., the International Economic Powers Act of 1977, 50 U.S.C. §§ 1701 et. seq., and related provisions of Title 18, United States Code.
- The United States asserts the identity of informer privilege as to any testimonial evidence or production of information that would disclose the identity of any person who has furnished information relating to violations of the law by Donald Defendant to agents of the United States Customs Service or other law enforcement officers conducting the investigation. Tex. R. Civ. Evid. 508(a). The United States also asserts the identity of informer privilege as to any testimonial evidence or production of information that would disclose the identity of any person who has assisted in the investigation of the violations of the law by Donald Defendant investigated by agents of the United States Customs Service or other law enforcement officers. Id.
- The United States also assets the law enforcement privilege as to information gathered during the investigation of the above criminal proceeding. Further, much of this information gathered is classified by the United States; the government asserts a claim of privilege to the classified information as well.
- Disclosure of the identity of any informers and any information provided to Customs would jeopardize the public’s interest in effective law enforcement by discouraging citizens from communicating to the government information regarding crimes. Any such disclosure would also infringe upon the informer’s right to be protected against retaliation and thereby seriously impair the ability of the government to conduct similar investigations in the future.
- Further, disclosure of this information would inhibit the government’s ability to improve its detection efforts to prevent trading by United States citizens with proscribed nations. The disclosure could also enable individuals to violate the law and avoid detection.
FURTHER AFFIDAVIT SAYETH NOT.
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, on this _____day of_____, 199___, to which witness my hand and seal of office.
NOTARY REPUBLIC IN AND FOR THE STATE OF TEXAS
ABC, INC., PLAINTIFF,
DONALD DEFENDANT, DEFENDANT.
IN THE DISTRICT COURT OF _________ COUNTY, TEXAS
_______TH JUDICIAL DISTRICT
THE STATE OF TEXAS
COUNTY OF _______
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA
Pursuant to 28 U.S.C. § 517, the United States of America, though the Attorney General of the United States and her designees, enters its appearance for the limited purpose of attending to its interest in the Protection of privileged government information that defendant seeks to obtain from plaintiff. The United States has previously filed as an exhibit to plaintiff’s response to motion to compel and motion for prospective order an affidavit invoking the identity of informer and law enforcement privileges as to certain information sought by defendant in the course of discovery in this case.
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