APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, (D.C. Criminal No. 14950).
Van Dusen, Weis and Garth, Circuit Judges.
The difficulties that may be encountered when litigation is divided between courts of concurrent jurisdiction is illustrated by this Tale of Two Districts -- an appeal generated by civil suit fallout from a closed criminal proceeding.
During the pretrial stages of a criminal case in the Middle District of Pennsylvania in which she was a defendant,*fn1 Elizabeth McAlister, now Mrs. Philip Berrigan, learned that she may have been overheard by electronic surveillance. Judge R. Dixon Herman, who presided over the case, found that there had been an unauthorized and illegal wiretap.*fn2 A taint hearing was held in May, 1972, after the criminal trial had been concluded. Transcripts of two conversations were made available to two of the then defendants, McAlister and Philip Berrigan, as well as counsel of record, in accordance with a protective order to which the parties agreed. The stipulation and order read:
"It is stipulated by and between counsel for the parties that the contents of or information contained in any tapes or transcripts thereof relating to any overhearing of conversations by means of electronic surveillance, shall not be disclosed to persons other than defense counsel of record or defendants Philip Berrigan and Elizabeth McAlister.
United States District Judge
On October 10, 1972, a suit was filed in the Eastern District of Pennsylvania by McAlister and one William Davidon against Richard D. Kleindienst, then Attorney General of the United States, L. Patrick Gray, then Acting Director of the FBI, John N. Mitchell, former Attorney General, and several named and unnamed agents of the FBI. The complaint alleged in essence that Mrs. Berrigan and Davidon were the subjects of illegal wiretaps and that they claimed damages in accordance with, inter alia, the provisions of 18 U.S.C. § 2520,*fn3 which permits recovery of civil damages and counsel fees in such situations.
The civil case was assigned to Judge E. Mac Troutman for disposition. The defendants then asserted that they were unable to answer all of the allegations of the complaint because they were bound by the protective order and the stipulation filed in the criminal case in the Middle District. To resolve the impasse, Mrs. Berrigan and Davidon jointly filed a petition with Judge Herman in the Middle District seeking to vacate the protective order. After consideration of briefs filed by the parties, Judge Herman on October 24, 1973 refused to lift the protective order. Mrs. ...