Opinion
November 30, 1938.
Seth W. Richardson, of Washington, D.C., and Edward M. Burke, of Chicago, Ill., for American Medical Ass'n.
Proceedings in the matter of a certain subpœna duces tecum served upon the American Medical Association, Chicago, Illinois, in an original grand jury investigation for possible investigation of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1- 7, 15 note. On motion to quash subpœna duces tecum.
Motion overruled.
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 Tuesday the 6th day of December, 1938, at 10:00 o'clock A.M., and not depart the Court without leave of the Court or District Attorney.
Witness, The Honorable Chief Justice of said Court, the ____ day of November, 1938.
Charles E. Stewart, Clerk. By W.W. Cheston, Assistant Clerk.
American Medical Association.
And bring with you:
1. All original documentary communications and all reports or memoranda (but not including articles published or prepared for any newspaper or magazine), or copies thereof where the originals cannot be produced, containing statements with respect to any action or policy taken or adopted, or considered or proposed to be taken or adopted, by or on behalf of the American Medical Association or of any medical society or association affiliated with the American Medical Association, or of any hospital, in opposition to group medical practice or to the provision of medical care on a periodic prepayment basis, drawn up, sent or received from January 1, 1935, to November 20, 1938, by the following:
(a) Dr. Olin West, Secretary and General Manager of the American Medical Association.
(b) Dr. Morris Fishbein, Editor of the Journal of the American Medical Association.
(c) Dr. R.G. Leland, Director, Bureau of Medical Economics.
(d) Dr. William C. Woodward, Director, Bureau of Legal Medicine and Legislation.
(e) Dr. W.D. Cutter, Secretary, Council on Medical Education and Hospitals.
(f) The Judicial Council of the American Medical Association.
(g) The Bureau of Investigation of the American Medical Association.
(h) Any other official or employee of the American Medical Association who, according to the present knowledge of Drs. West, Fishbein, Leland, Woodward, or Cutter, drew up, sent, or received such papers during the period specified.
2. All minutes of meetings held from January 1, 1935, to November 20, 1938, by the following bodies, which minutes contain statements of the kind referred to in paragraph 1 above.
(a) Board of Trustees of the American Medical Association.
(b) House of Delegates of the American Medical Association.
(c) Any council, board, committee, or other group of the American Medical Association.
3. All papers of the kinds referred to in paragraphs 1 and 2 above, and no others, wherein a statement with respect to action or policy of the kind described in paragraph 1 above relates specifically to any of the organizations or individuals named below and which was drawn up, sent, or received by any of the representatives of the American Medical Association referred to in paragraph 1, items (a) to (h) inclusive, or by one of the bodies named in paragraph 2, items (a) and (b), during the periods specified below:
From To Group Health Association, Jan. 1, 1936 Oct. 15, 1938 Inc. (Washington, D.C.) Ross-Loos Medical Group Jan. 1, 1931 Oct. 15, 1938 (Los Angeles, California) Trinity Hospital Jan. 1, 1931 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) Public Health Institute Jan. 1, 1927 Oct. 15, 1938 (Chicago, Illinois) Dr. Louis E. Schmidt Jan. 1, 1928 Oct. 15, 1938 (Chicago, Illinois)
A recent subpœna duces tecum to the American Medical Association was partially quashed as unreasonable and oppressive because of its sweeping requirements. This subpoena is intended to overcome those faults. I think it does so.
The desired papers are well identified. The periods of time to be covered by the search, although longer than the statutory period of limitation, are definitely fixed and not necessarily unreasonable, having in mind the nature of the inquiry. The papers required, it is understood, are only those which may now be in possession of the Association or its officers. I see no reason why the Association cannot comply with the subpoena without undue difficulty or hardship if its papers have been kept under any efficient system of filing.
Counsel for the Association again contend that the papers described by the subpœna are irrelevant and incompetent to the subject matter of the inquiry before the grand jury and that the matters being investigated cannot by their nature involve any violation of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1- 7, 15 note, in respect of its local or interstate provisions. It is therefore argued that, as the investigation concerns matters of which this Court would have no jurisdiction, the proceeding cannot legally form the foundation for issuance of the subpoena. It is insisted that the Court should now determine these basic questions. I cannot agree with these contentions. The virtual effect of the propositions to now pass upon the admissible quality of evidence sought for production before the grand jury, or produced before it, and to determine vital questions of jurisdiction, would be to require a close and detailed supervision by the Court of the grand jury's investigation which, I think, can find no proper support in the historical background and development of the grand jury system or the well established rules of criminal procedure. Moreover, the present inquiry before the special grand jury is of an original nature. Neither the American Medical Association nor any other party has been held for action of the grand jury upon any criminal charge. The inquisition has its origin with the grand jury. There are as yet no defendants. There may never be any. Hence, at this stage of the proceeding the Association has no such status as entitles it to raise any of the vital questions now urged upon the Court.
In my opinion, the motion to quash the subpoena should be overruled, and it is so ordered.