Before MARIS, GOODRICH and KALODNER, Circuit Judges.
On October 6, 1948, a United States Air Force B-29 bomber, enroute from Robbins Air Force Base on a flight to Orlando, Florida, and return, crashed at Waycross, Georgia. The plane, carrying nine crew members and four civilian observers, had taken off for the purpose of an experimental testing of secret electronics equipment. Of the thirteen persons on board, nine were killed, including six members of the crew and three civilian observers who were engineer employees of private organizations involved in the research and development of the electronics equipment being tested. These consolidated suits under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq., were thereafter instituted in the United States District Court for the Eastern District of Pennsylvania by the widows of the three deceased civilian employees, each seeking damages for the alleged wrongful deaths of the deceased.
Subsequent to the filing of answers making general denials, detailed interrogatories pursuant to Civil Procedure Rule 33, 28 U.S.C., were served on the United States Attorney by the plaintiffs. One of the interrogatories requested that a copy of any investigation report of the accident be attached to the answer.Another similarly sought copies of statements of witnesses which might have been obtained in connection with the accident. In answering the interrogatories the United States declined to comply with those questions which required the production of documents on the ground that such production was not within the scope of Rule 33.
Following the filing of these answers, plaintiffs made a motion under Civil Procedure Rule 34 for production of the official investigation report prepared by officers of the Air Force and the statements of the surviving crew members taken in connection with that investigation.To show good cause the motion and supporting affidavits stated that those documents constituted or contained information and evidence necessary in preparation for trial, that the documents were in the possession and control of the United States and that plaintiffs knew no way to obtain knowledge of their contents or the cause of the accident other than by their production.
On June 30, 1950 the district court sustained plaintiffs' motions to produce, holding that good cause had been shown therefor. 10 F.R.D. 468. After deciding the matter of good cause, the district judge disposed of the questions as to the privileged status of the departmental records involved by reference to the views which he had expressed in O'Neill v. United States, D.C., 1948, 79 F.Supp. 827. An order requiring production was entered on July 20, 1950.
The Attorney General, upon being notified of the result reached by the district judge, notified the Department of the Air Force. On July 24, 1950 a letter from the Secretary of the Air Force to the district court stated:
"Acting under the authority of Section 161 of the Revised Statutes (5 U.S.C. 22), it has been determined that it would not be in the public interest to furnish this report of investigation as requested by counsel in this case. This report was prepared under regulations which are designed to insure the collection of all pertinent information regarding aircraft accidents in order that all possible measures will be developed for the prevention of accidents and the optimum promotion of flying safety. Because this matter is one of such primary importance to the Air Force, it has been found necessary to restrict the use of aircraft accident reports to the official purpose for which they are intended. Under our regulations, this type of report is not available in courtsmartial proceedings or other forms of disciplinary action or in the determination of pecuniary liability.
"It is hoped that the extreme importance which the Department of the Air Force places upon the confidential nature of its official aircraft accident reports will be fully appreciated and understood by your Honorable Court."
Thereafter the district judge suggested that a hearing might be held so that this aspect of the case might be further considered. Accordingly a hearing was held by agreement in Washington, D.C., on August 9, 1950. At this hearing the district judge received a formal "claim of privilege" by the Secretary of the Air Force, setting forth the basis for the claim and the authority for the privilege, supported by his affidavit showing his right to promulgate regulations under Sec. 161, R.S., and the Act of March 1, 1875, 10 U.S.C.A. § 16, as head of the Department of the Air Force and describing the applicable regulations. In addition, an affidavit by the Judge Advocate General of the Air Force was filed which set forth the names and addresses of the survivors, undertook to make these witnesses available for interrogation at plaintiff's will and at Government expense, and guaranteed to authorize the witnesses to testify to all matters pertaining to the cause of the accident except as to "classified" material. Further, the affidavit of the Judge Advocate General, after averring that all records, other than those classified or privileged, had already been made available to plaintiffs, specifically stated that the investigation board report and survivors' statements could not be furnished without seriously hampering national security, flying safety, and the development of highly technical and secret military equipment.
An amended order was issued by the district judge on September 21, 1950, to the effect that the United States should produce for examination by the court the documents in question, so that the court could determine whether the disclosure "would violate the Government's privilege against disclosure of matters involving the national or public interest." Compliance with this order was not forthcoming and, on October 12, 1950, the district judge issued an order, under Civil Procedure Rule 37, that the facts in plaintiffs' favor on the issue of negligence be taken as established and prohibiting the defendant from introducing evidence to controvert those facts.Subsequently, a hearing was held on the question of damages and judgment was entered for the plaintiffs on February 27, 1951. These appeals by the United States followed.
The appeals now before us raise a number of important and difficult questions for our determination. The first is whether the district judge erred in his ruling that the plaintiffs had shown good cause under Rule 34 for the production of the statements of witnesses and investigation report which they sought to have produced for their inspection and copying. In concluding that good cause had been shown, the district judge said, 10 F.R.D. 468, 470-471:
"The plaintiffs have no knowledge of why the accident happened. So far as such knowledge is obtainable, the defendant has it. When the airplane crashed, it was wrecked and much of the evidence of what occurred was destroyed. Only persons with long experience in investigating airplane disasters could hope to get at the real cause of the accident under such circumstances. The Air Force appointed a board of investigators immediately after the accident and examined the surviving witnesses while their recollections were fresh. With their statements as a starting point the board was able to make an extensive investigation of the accident. These statements and the report of the board's investigation undoubtedly contain facts, information and clues which it might be extremely difficult, if not impossible, for the plaintiffs with their lack of technical resources to obtain merely by taking the depositions of the survivors.
"I am not suggesting that the witnesses on deposition would not answer the questions asked them truthfully but, in a case like this, in which seemingly trivial things may, to the expert, furnish important clues as to the cause of the accident, the plaintiffs must have accurate and precise firsthand information as to every relevant fact, if they are to conduct their examination of witnesses properly and to get at the truth in preparing for trial. This only the statements can give them. I would not go so far as to say that the witnesses would necessarily be hostile. However, they are employees of the defendant, in military service and subject to military ...