November 17, 1938.
John Henry Lewin, of Baltimore, Md., Allan Hart, of Portland, Or., Douglas B. Maggs, of Durham, N.C., and Grant W. Kelleher, of Washington, D.C., for the United States.
Original grand jury investigation against the Medical Society of the District of Columbia and others for a possible violation of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1- 7, 15 note, of the United States. On motion to quash subpœna duces tecum.
Motion granted in part and denied in part.
The subpœna duces tecum follows:
Additional Grand Jury Copy
District Court of the United States for the District of Columbia.
The United States | vs. | Medical Society of the No. G.J. Orig., District of Columbia, | Criminal Docket. American Medical Association, | et al. |
The President of the United States to American Medical Association, 535 North Dearborn Street, Chicago, Illinois .......
You are hereby commanded to attend before the Additional Grand Jury of said Court on Wednesday the 21st day of November, 1938, at 10:00 o'clock A.M., to testify on behalf of the United States, and not depart the Court without leave of the Court or District Attorney.
Witness, The Honorable Chief Justice of said Court, the ____ day of October, 1938
Charles E. Stewart, Clerk. By N.M. Chaston, Assistant Clerk.
And bring with you
All minutes of meetings of the Board of Trustees and of the Council on Medical Education and Hospitals and of any other board, council, committee, or group, by whatever name known, and of any committee or subcommittee thereof, of the American Medical Association, and all other original letters, telegrams, correspondence, messages, memoranda, reports, notes, or other documents (or copies thereof where the originals cannot be produced) of the American Medical Association, its officers, directors, delegates, trustees, employees, and members, or passing between any two or more of them, or passing between any of them and any component or constituent medical society of said Association, or between any of them and the American College of Surgeons, the Washington Academy of Surgery, or any other medical, surgical, or hospital society or association, or any officers, directors, employees, or members of said component, constituent, or other medical, surgical, or hospital societies or associations, or passing between the American Medical Association or its officers, directors, delegates, trustees, employees, or members, and any person, firm, corporation, or association whatsoever, made, written, sent, or received during the period specified and referring or relating to the following organizations and individuals:
From To Group Health Association, Jan. 1, 1936 Oct. 15, 1938 Inc. (Washington, D.C.) Ross-Loos Medical Group Jan. 1, 1929 Oct. 15, 1938 (Los Angeles, California) Trinity Hospital Jan. 1, 1924 Oct. 15, 1938 Dr. Mahlon D. Ogden (Little Rock, Arkansas) Milwaukee Medical Center June 1, 1935 Oct. 15, 1938 (Milwaukee, Wisconsin) Community Hospital Jan. 1, 1929 Oct. 15, 1938 Dr. M. Shadid (Elk City, Oklahoma) Illinois Social Hygiene Jan. 1, 1916 Oct. 15, 1938 League (also called Red League) Public Health Institute Jan. 1, 1920 Oct. 15, 1938 United Medical Service Jan. 1, 1932 Oct. 15, 1938 Civic Medical Center Jan. 1, 1935 Oct. 15, 1938 Dr. Louis E. Schmidt Jan. 1, 1928 Oct. 15, 1938 (Chicago, Illinois)
Also, all such minutes, letters, telegrams, correspondence, messages, memoranda, reports, notes, or other documents, made, written, sent, or received as aforesaid during the period from January 1, 1935, to October 15, 1938, referring or relating to any individual, group, or organization, or members of the medical staffs of such groups or organizations, or members of such groups or organizations, engaged in providing or proposing or attempting to provide prepaid medical care, that is, medical care paid for on a periodic payment basis, or referring or relating to any individual, group, or organization, or members of the medical staffs of such groups or organizations, or members of such groups or organizations, engaged in or proposing or attempting to engage in low cost "group practice" of medicine.
Also, all such minutes, letters, telegrams, correspondence, messages, memoranda, reports, notes, or other documents, made, written, sent, or received as aforesaid during the period from January 1, 1932, to October 15, 1938, referring or relating to:
(a) Any requirement, recommendation, or proposal of the American Medical Association that members of hospital staffs (including courtesy staffs) be members of local component or constituent societies of the American Medical Association;
(b) Any instances where approval of hospitals for intern training by the American Medical Association was revoked for any reason relating to the membership of the staffs (including the courtesy staffs) of such hospitals;
(c) The investigation by the Department of Justice of the activities of the American Medical Association and Medical Society of the District of Columbia and of their officers, employees, and members with relation to Group Health Association, Inc., and its officers, employees, and staff doctors.
The first two paragraphs of the subpœna in broad yet detailed terms do in effect call for production of all writings of every kind in possession of the American Medical Association which were made, sent or received by it or any individual or body during stated periods running back from October 15, 1938, as far as January 1, 1916, "referring or relating" to ten named organizations or persons, and all such writings so made, sent or received from January 1, 1935, to October 15, 1938, "referring or relating" to any individual or body engaged in providing, proposing or attempting to provide prepaid medical care or low cost group practice of medicine.
In moving to quash the subpœna the American Medical Association urges, among other grounds, that it is so broad and all inclusive in its requirements as to be unreasonable and oppressive, and thus violative of the constitutional inhibition against unreasonable searches and seizures, U.S.C.A. Const. Amend. 4.
The assertions made in the motion and in argument that compliance with the subpœna will require an examination for the stated periods of every paper in all the files of the Association scattered through its separate departments, occupying a large nine story building in Chicago, have not been challenged in any way. The statement seems to be fair when one visualizes the situation in the light of the sweeping terms of the subpœna. To fully and strictly comply therewith every paper of whatever nature containing the slightest reference to the ten named organizations and persons for the periods specified must be found and produced. In most instances the dates go back of 1930; in one case to 1916. In addition, it would be necessary to find over a period of about four years all papers of every kind containing any possible reference to persons or bodies engaged in providing, proposing or attempting to provide prepaid medical care or low cost group medical practice. The marks for identifying these papers are not prescribed subjects that might have some possible relevancy to the nature of the grand jury's investigation. The only means for finding them is to examine all papers for some reference, however casual or unimportant, to specified classes of persons, apparently large, who may in any way have been engaged in any movement to promote prepaid or low cost group medical service. Moreover, it is presupposed that the Association knows the names of all those so engaged. Doubtless many are known, but it seems likely they would be met with great difficulty and uncertainty in attempting to identify all. In view of these considerations, I cannot but regard the provisions of the first and second paragraphs of the subpœna as imposing an unreasonable and oppressive burden.
I do not think the foregoing provisions of the subpœna can be justified by the decision of the Supreme Court in Brown v. United States, 276 U.S. 134, 48 S.Ct. 288, 72 L.Ed. 500, as counsel for the government contend. The decision, and others of the Court, establish the rule that a subpœna duces tecum must be limited to a reasonable period of time and specify with reasonable particularity the subjects to which the desired writings relate. Each case must be judged according to the peculiar facts arising from the subpœna itself and other proper sources. I cannot agree with the able and earnest contention of the government counsel that the provisions of the first two paragraphs of the subpœna here in question do meet the rule of reasonableness. They may partake of the form of the subpoena in the Brown Case, but I think they fail in substance to meet the spirit of the rule.
However, as to the third paragraph of the subpœna, I am of the opinion that its requirements are reasonable. It does specify with reasonable particularity the subjects to which the desired documents relate. It can also be seen that such papers may have some material bearing upon the grand jury investigation. Although the period of time involved is quite long, I do not think it is sufficiently so to be deemed unreasonable in view of the nature of the inquiry. With the subject matters so well defined, there ought to be no great difficulty in making the search and according fair compliance with the requirements of this part of the subpœna. If in view of the interruption caused by the motion additional time is needed, I have no doubt counsel for the government will be pleased to arrange it.
I realize that sub-paragraph "c" may by its terms cover privileged communications, but omit dealing with the question now in view of counsels' assurance that they apprehend no trouble in amicably settling any questions of that kind that may arise. If they should disagree as to any paper they may feel at liberty to bring the matter to me at any time.
The first and second paragraphs of the subpoena will be quashed, the third paragraph will stand.