United States Court of Appeals For the First Circuit

No. 12-1236

IN RE: REQUEST FROM THE UNITED KINGDOM PURSUANT TO THE TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE UNITED KINGDOM ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS IN THE MATTER OF DOLOURS PRICE,

UNITED STATES OF AMERICA,

Petitioner, Appellee,

v.

TRUSTEES OF BOSTON COLLEGE,

Movant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]

Before Torruella, Boudin* and Thompson, Circuit Judges.

Jeffrey Swope, with whom Nicholas A. Soivilien and Edwards Wildman Palmer LLP, was on brief for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.

May 31, 2013

* Judge Boudin heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion in this case. The remaining two panelists therefore issued the opinion pursuant to

(d). TORRUELLA, Circuit Judge. As part of its academic

mission, Boston College ("BC"), an institution of higher learning,

undertook research into the armed conflict surrounding the

independence movement of Northern Ireland during the second half of

the Twentieth Century. In the course of said research, which it

labeled the "Belfast Project" ("Project"), BC compiled extensive

oral histories in the form of personal interviews and testimonies

from formerly active participants in that volatile period,

including from past members of the Irish Republican Army ("IRA")

and its various related organizations. Said materials are

deposited in a secure section of BC's Burns Library, where they are

accessible only for academic research and study, subject to strict

confidentiality agreements entered into between BC and the

interviewees.

On August 11, 2011, pursuant to Article 5 of the Treaty

Between the Government of the United States and the Government of

the Kingdom of Great Britain and Northern Ireland on Mutual Legal

Assistance on Criminal Matters, U.S.-U.K., Dec. 2, 1996, S. Treaty

Doc. No. 104-2 ("US-UK MLAT")1 and

, a commissioner

1 Article 5 of the US-UK MLAT states:

1. As empowered by this Treaty or by national law, or in accordance with its national practice, the Requested Party shall take whatever steps it deems necessary to give effect to requests received from the Requesting Party. The courts of the Requested Party shall have authority to issue subpoenas, search warrants, or other orders necessary to execute the requests.

-2- appointed to represent Petitioner-Appellee the United States

("Petitioner") issued, and thereafter sought enforcement of, a

subpoena (the "August 2011 subpoena") in the United States District

Court for the District of Massachusetts. Said subpoena is aimed at

compelling the production by BC of the recordings and/or

transcripts of all interviews collected by the Project's

researchers, "containing information about the abduction or death

of Mrs. Jean McConville," an apparent casualty of the interstitial

conflict in Northern Ireland.

BC filed a motion to quash this subpoena, seeking to

preserve the confidentiality of its research. The district court

denied BC's request, but agreed to perform an in camera review of

the documents sought by the Petitioner. Following said review, the

Court ordered that 85 interviews in BC's possession be turned over

to the Petitioner for eventual transfer to the UK authorities.

BC now appeals the district court's order to produce the

interviews. Relying on In re Special Proceedings,

(1st Cir. 2004), it claims that "'heightened sensitivity' to First

Amendment concerns" applies and that materials in the interviews

"may not be compelled unless directly relevant to a" bona fide

investigation.

2. When execution of the request requires judicial or administrative action, the request shall be presented to the appropriate authority by the persons appointed by the Central Authority of the Requested Party.

-3- After a detailed review of the materials in question, we

find that the district court abused its discretion in ordering the

production of several of the interviews which, after an in detail

reading of the same, do not contain any information relevant to the

August 2011 subpoena. We thus affirm in part and vacate in part

the district court's order.

I. Background

In 2012, we issued a decision in two consolidated appeals

relating to the instant appeal. See In re Dolours Price,

(1st Cir. 2012), cert. denied sub. nom. Moloney v. United States,

(U.S., Apr.15, 2013). Those appeals came

about after the district court rejected the efforts of two BC

researchers closely related to the Project, Ed Moloney and Anthony

McIntyre, to intervene in the subpoena enforcement proceedings. We

shall only recount the facts and holding of that case as is

necessary to frame and decide the present appeal.

As is apparent from the record, the origins of these

proceedings lay in the UK's request for Petitioner US's assistance

in investigating the 1974 disappearance of Mrs. McConville from her

home in Belfast, Northern Ireland. The UK seeks to scrutinize the

Project's materials for information aiding that investigation, and

thus requested the United States' assistance in obtaining them. In

March 31, 2011, as provided in the US-UK MLAT and 18 U.S.C.

-4- § 3512,2 the district court appointed a commissioner to pursue the

UK's request.

Shortly thereafter, in May 2011, the commissioner served

his first set of subpoenas on BC seeking the production of the

interviews of two individuals who had taken part in the Project,

Brendan Hughes (who by then had passed away) ("Hughes") and Dolours

Price. BC filed a motion to quash those subpoenas. While that

motion was pending, the commissioner served BC with another

subpoena in August 2011 (the subject of the present appeal).

Instead of being directed at the production of specifically named

interviewees, the August 2011 subpoenas sought "[t]he original

audio and video recordings" and "[a]ny and all written transcripts,

interview summaries, and interview indices" "of any and all

interviews containing information about the abduction or death of

Mrs. Jean McConville." BC moved to quash this subpoena as well.

On December 16, 2011, the district court denied BC's

requests to quash both sets of subpoenas. See United States v.

Trustees of Boston College,

(D. Mass. 2011).

It did, however, grant BC's alternative request to conduct an in

camera review. On December 27, 2011, after reviewing the Dolours

Price interviews, the district court ordered their production. BC

2

establishes "a streamlined process . . . for executing requests from foreign governments related to the prosecution of criminal offenses." In re Dolours Price,

.

-5- has since handed over both the Dolours Price and Hughes materials

to the commissioner. The district court also conducted an in

camera review of the August 2011 subpoenaed materials "to see

whether, fairly read, they f[e]ll within the scope of the

subpoena." It declined to consider whether a materiality or

relevance analysis was necessary and found that the judicial role

was circumscribed to "checking to see whether the data produced

conforms to the subpoena."

On January 27, 2012, the district court issued a Findings

and Order in which it summarily explained how it conducted its in

camera review. The Order included a Sealed Appendix listing the

specific materials to be produced. The list identified the

materials according to BC's coding system, using random letters and

numbers to identify the interviewee and the interview number to be

released. It neither explained why it ordered particular

interviews to be released, nor why it ordered the production of all

interviews by a given interviewee. In some cases it ordered the

whole series of interviews conducted with a particular interviewee

to be produced while in other cases only one interview from the

series was ordered released. Before us now is BC's appeal from

that order.

While the present appeal was pending, BC filed a

Suggestion of Death pursuant to Fed. R. App. P. 43(a)(1), informing

this court that, "[a]ccording to news reports, Dolours Price was

-6- found dead on January 23, 2013, at her home in Malahide, Northern

Ireland." In asking the court to take notice of her death, BC also

requested that we vacate the district court's order to produce the

August 2011 subpoenaed materials, dismissing this appeal as moot.

Its main argument was that since the subject of the case, as

identified in its caption, was Dolours Price, her death meant that

criminal matters in relation to her could not continue.

The government opposed BC's request. It argued that the

subpoenas requested materials relating to the abduction and death

of McConville, "which very well might include interviews

implicating persons other than Price," and that the parties and the

district court understood that the subpoenas sought "documents

relevant to the investigation of McConville's death, not merely

those that might implicate Price." BC rejected this argument,

differentiating between the subject of the proceedings as

identified in the caption (i.e., Dolours Price) and the scope of

the materials sought by the subpoenas (i.e., information about the

McConville abduction and death).3

We will first address BC's mootness argument.

3 The United States captioned the special proceeding as: "In re: Request from the United Kingdom Pursuant to the Treaty Between the Government of the United States of America and the Government of the United Kingdom on Mutual Assistance in Criminal Matters in the Matter of Dolours Price." BC also made an argument under Article 1 of the US-UK MLAT, but later decided not to contest the United States' take on the issue. We, of course, pass no judgment upon the merits of the abandoned argument.

-7- II. Analysis

A. The Impact of Dolours Price's Death

It is not surprising that BC attributes great

significance to the death of Dolours Price given that she evidently

was targeted as part of the investigation into Mrs. McConville's

apparent abduction, murder and disappearance. Dolours Price's

death, however, does not have any decisive effect upon these

proceedings because their subject matter is not, and has never

been, solely Dolours Price's individual prosecution. Rather, these

proceedings are a part of a broad investigation into the death of

Mrs. McConville. This has been clear to the district court since

the inception of the case, and to BC, at least since the August

2011 subpoena was issued. The materials filed under seal by the

United States in the district court verify that these proceedings

are based on a broad investigation, and not solely on an

investigation against Dolours Price's actions. Thus, her death

does not in any manner impinge or prevent the continuation of the

broader investigation into Mrs. McConville's death.

BC's arguments regarding mootness seem to be partially

based on the fact that the caption of the case indicates that the

subject of the proceedings is a criminal investigation against

Dolours Price. This argument is not well-founded. It is a settled

principle that a defective caption (or even its absence) presents

an issue of form that is not deemed fatal to an otherwise valid

-8- action. See 5A Wright and Miller, Fed. Prac. and Proc.: Civ.

§ 1321 at 388 (3d ed.) (2008). Stated otherwise, it is a matter of

form without substance. In the past, in order to determine the

capacity in which a defendant was sued in a civil action, this

court has looked beyond a defective caption and instead examined

the substance of the legal claim and the conduct of the parties.

Indianapolis Life Ins. Co. v. Herman,

(1st Cir. 2008)

(affirming personal liability even though the caption in district

court and final judgment referred to defendant only in her capacity

as trustee). While the defect in the instant case involves an

inaccurate caption rather than a failure to properly name a party,

an analysis of the substance of these proceedings demonstrates that

their subject is not the criminal prosecution of Dolours Price.

"This approach eschews mechanical reliance on the form of the

caption . . . and is consistent with the practical approach to

construction of pleadings and orders taken by the Federal Rules."

. It is therefore of no consequence that the caption

names her, a person whose involvement in the McConville abduction

and death was apparently known, instead of describing the subject

matter of the investigation explicitly.

B. The Arguments on Appeal

Citing Branzburg v. Hayes,

(1972), this

court in In re Dolours Price, inter alia, rejected Moloney and

McIntyre's attempt to halt the production of Project materials

-9- based on allegations of First Amendment academic research

privilege.4 In particular, we held that "the fact that disclosure

of the materials sought by a subpoena in criminal proceedings would

result in the breaking of a promise of confidentiality by reporters

[or researchers] is not by itself a legally cognizable First

Amendment or common law injury." In re Dolours Price,

(citing Branzburg,

). In expounding

that Branzburg fully applied, this court deemed controlling the

strong public and governmental interests of the United States and

the UK, respectively and jointly, in not impeding criminal

investigations. See id. at 18. This court further recognized that

the law enforcement interest in this context is stronger than that

in Branzburg given that "[t]wo branches of the federal government,

the Executive and the Senate, have expressly decided to assume

the[] treaty obligations." Id.

In its opening brief here, which was filed before In re

Dolours Price was decided, BC explicitly stated that it did not

purport to argue that there is an absolute First Amendment right

that protects all academic research from compelled discovery.

4 In In re Dolours Price, we rejected Moloney and McIntyre's attempt to halt the production of the materials by arguing that the terms of the US-UK MLAT had not been followed. We also denied the validity of their allegations to the effect that a cause of action existed under the Administrative Procedure Act, a contention expressly prohibited by the treaty, which denies private rights of action arising from the violation of its terms. See US-UK MLAT, Art. 1, ¶ 3.

-10- Instead, it posited that our precedent requires that special

protection be given to the Project's materials.

In its reply brief, which was filed after In re Dolours

Price was issued, BC explicitly acknowledges that "many of the

arguments it advanced in its opening brief were not accepted by

this court in [In re Dolours Price]," but insists that special

protection, in the form of "heightened sensitivity," is warranted.

Further, it maintains that our precedent mandating said treatment,

particularly In re: Special Proceedings,

(1st Cir.

2004), has not been overturned and governs the outcome of this

appeal. Relevant to this inquiry, BC further urges this court to

decide whether a district court has discretion to quash a subpoena

issued pursuant to the US-UK MLAT, a question we specifically

declined to address in In re Dolours Price. See In re Dolours

Price,

. BC thus requests that we now pass on

this issue and rule that such discretion exists; that a heightened

sensitivity standard should be applied here because of the

confidential nature of the Project; and that only materials that

are directly responsive to the subpoenas should be released. BC

specifically argues that the district court did not apply the

"directly relevant" inquiry properly, even though it purported to

follow In re Special Proceedings, and that it ordered the

production of materials that were not responsive to the August 2011

subpoena at all.

-11- The government, for its part, contends that courts do not

have discretion under the US-UK MLAT to review for relevance

materials subject to a subpoena. It states that only the Attorney

General, not the courts, has discretion to decline, delay or narrow

a request under the treaty. To the extent courts retain

discretion, it says in the alternative, they are limited to

circumstances where enforcement would offend constitutional

guarantees or federally-recognized privileges. The government,

however, despite the fact that it denies the district court had

discretion to perform the in camera review, does not wish to upset

the district court's order. Rather, it proposes that an ordinary

relevance standard be applied in this case rather than a direct

relevance standard, and urges us to find that the district court's

review properly met that standard.

It is clear that BC has abandoned most of the arguments

it made in its opening brief due to our decision in In re Dolours

Price. What is left of those arguments requires us to determine

whether the district court had discretion to rule upon the motion

to quash and to perform an in camera review of the subpoenaed

materials as part of its deliberation process. If we find that no

discretion exists, we need go no further. If, however, we conclude

that such discretion exists, we must then decide under which

standard the district court should have examined the materials in

-12- its exercise of discretion: direct relevance or ordinary relevance.

We address first whether discretion exists at all.

C. Federal Court Discretion to Quash US-UK MLAT-Issued Subpoenas

As stated above, in In re Dolours Price, we explicitly

declined to pass judgment upon the question of federal court

discretion to review motions to quash subpoenas under the US-UK

MLAT.5 We now address this question directly.

Pursuant to Article 3 of the US-UK MLAT, it is the

Attorney General who decides whether to accede to a request from

the UK, to narrow compliance to a certain aspect of said request or

to decline to cooperate altogether. See Art. 3, US-UK MLAT. The

government, however, erroneously concludes that the Attorney

General's exclusive prerogative in initiating proceedings

translates into a general bar on judicial oversight of the subpoena

enforcement process.

The treaty is silent as to the role of federal courts in

the process of enforcing subpoenas issued in furtherance of a

request by the UK. This silence, of course, does not mean that the

actions taken by the Executive once the Attorney General decides to

5 On that occasion, the government assumed arguendo that the discretion to quash existed and that the court acted properly within it. See In re Dolours Price,

. This is in sharp contrast to what the government had argued unsuccessfully in another case involving an MLAT where it denied such discretion existed. See In re 840 140th Ave. NE,

(9th Cir. 2011). In the appeal before us now, the government has again changed its position.

-13- comply with a request are totally insulated and beyond the purview

of oversight by the courts. In fact, courts play a prominent role

in aiding the Executive's administration of its obligations under

the treaty. See

In most cases, as here, the

Attorney General will request that a federal judge issue an order

appointing a commissioner to carry out specific actions in

furtherance of the request, and will ask a court to enforce

subpoenas when the recipients refuse to comply. See § 3512(a)(2)

and (b). Hence, even if a court is not free to decline, delay or

narrow a request by the UK because that power to initiate the

process lies with the Attorney General under the treaty, federal

courts play an indispensable role in the process of executing a

request. Nevertheless, Section 3512, does not, on its face,

6

(a)(1) states:

Upon application, duly authorized by an appropriate official of the Department of Justice, of an attorney for the Government, a Federal judge may issue such orders as may be necessary to execute a request from a foreign authority for assistance in the investigation or prosecution of criminal offenses, or in proceedings related to the prosecution of criminal offenses, including proceedings regarding forfeiture, sentencing, and restitution.

Although not decisive in the present appeal, we note that in enacting this provision Congress used the term "may," which usually denotes a modicum of discretion, rather than the mandatory "shall. See López v. Davis,

, 240 (1997)("Congress' use of the word 'may,' rather than 'shall,' has no significance" if interpreted as an authorization and a command, rather than as a grant of discretion.").

-14- provide us with an answer to the inquiry at hand: whether federal

courts have discretion to quash a subpoena in this context.

In the context of the issues raised by this appeal,

judicial enforcement of the August 2011 subpoena implicates

structural principles of the separation of powers which are

"concerned with the allocation of official power among the three

co-equal branches of our Government." Clinton v. Jones,

(1997); see also Boumediene v. Bush,

(2008) ("The Framers' inherent distrust of governmental power was

the driving force behind the constitutional plan that allocated

powers among three independent branches. This design serves not

only to make Government accountable but also to secure individual

liberty."). Of course, it goes without saying that the separation

of powers does not forbid cooperation and interdependence between

branches. See Mistretta v. United States,

(1989). But there are certain core boundaries that need to be

respected and observed. See In re 840 140th Ave. NE,

(9th Cir. 2011).

In In re 840 140th Ave. NE, a case that concerned the

nature and scope of judicial review in the context of the US-Russia

MLAT, which we cited in In re Dolours Price with approval, the

Ninth Circuit observed that the "enforcement of a subpoena is an

exercise of judicial power," and that "[t]reaties, like statutes,

are subject to constitutional limits, including the separation of

-15- powers."

. The Ninth Circuit further ruled that

prohibiting judicial discretion to quash leads to the "the

inescapable and unacceptable conclusion that the executive branch

[] would exercise judicial power" and that "the government's

position suggests that by ratifying an MLAT, the legislative branch

could compel the judicial branch to reach a particular result --

issuing orders compelling production and denying motions for

protective orders -- in particular cases, notwithstanding any

concerns, such as violations of individual rights, that a federal

court may have."

(emphasis added).

In deciding the role of federal courts in enforcing

subpoenas issued pursuant to the treaty, we must ensure that our

decision does not offend basic separation of powers principles by

allowing (1) "encroachment or aggrandizement of one branch at the

expense of the other," Jones,

(quoting Buckley v.

Valeo,

(1976)); or (2) "a branch . . . [to] impair

another in the performance of its constitutional duties," Jones,

(quoting Loving v. United States,

(1996)). If we were to accede to the government's position and

hold that courts must always enforce a commissioner's subpoenas, we

would be (1) allowing the executive branch to virtually exercise

judicial powers by issuing subpoenas that are automatically

enforced by the courts; and (2) impairing our powers by acceding to

act as rubber stamps for commissioners appointed pursuant to the

-16- treaty. Such subservience is constitutionally prohibited and,

ergo, we must forcefully conclude that preserving the judicial

power to supervise the enforcement of subpoenas in the context of

the present case, guarantees the preservation of a balance of

powers.

Precisely because we recognize the importance here of

"the governmental and public interest in not impeding criminal

investigations," we must necessarily recognize the importance of

judicially checking and balancing these interests in order to

control excesses and preserve the balance in the symbiotic

relationship between the commissioner conducting the investigation

on behalf of the UK, and the courts before which the commissioner

seeks the enforcement of the subpoenas. In re Dolours Price,

.

In substance, we rule that the enforcement of subpoenas

is an inherent judicial function which, by virtue of the doctrine

of separation of powers, cannot be constitutionally divested from

the courts of the United States. Nothing in the text of the US-UK

MLAT, or its legislative history, has been cited by the government

to lead us to conclude that the courts of the United States have

been divested of an inherent judicial role that is basic to our

function as judges. Cf. Weinberger v. Romero-Barceló,

(1982).

-17- D. The applicable standard of relevancy

Having unequivocally established that courts have

inherent judicial power over the enforcement of subpoenas issued in

the context of a proceeding pursuant to the US-UK MLAT, we must

decide whether, when dealing with a motion to quash the release of

academic research materials, courts must review under an ordinary

relevance or a direct relevance standard.

BC contends that a direct relevance standard should apply

because in In re Special Proceedings we "held that 'heightened

sensitivity' is required in reviewing confidential academic

research materials to determine that they are 'directly relevant.'"

We reject BC's argument because In re Special Proceedings applies

only to cases not already covered by Branzburg.

In In re Special Proceedings, we emphasized that our

three leading cases regarding confidential sources "require

'heightened sensitivity' to First Amendment concerns and invite a

'balancing' of considerations (at least in situations distinct from

Branzburg)."

(emphasis added) (citing Cusumano v.

Microsoft Corp.,

(1st Cir. 1998); United States v.

LaRouche Campaign,

(1st Cir. 1988); Bruno & Stillman,

Inc. v. Globe Newspaper Co.,

(1st Cir. 1980)). We

thus stated that, "[i]n substance, these cases suggest that[, 'at

least in situations distinct from Branzburg,'] the disclosure of a

reporter's confidential sources may not be compelled unless

-18- directly relevant to a nonfrivolous claim or inquiry undertaken in

good faith . . . ."

In In re Dolours Price we stated, however, that the

controversy at hand is "closer to Branzburg itself, buttressed by

[Univ. of Pa. v. EEOC,

(1990)], than any of our

circuit precedent" and that "[t]he Branzburg analysis, especially

as to the strength of the governmental and public interest in not

impeding criminal investigations, guides our outcome." In re

Dolours Price,

.

The result of this appeal is thus dictated by binding

Supreme Court and circuit precedent, namely, Branzburg and In re

Dolours Price. BC has not requested that we reconsider our recent

decision and we see no reason to do so, nor could we as a panel.

See United States v. Rodríguez,

(1st Cir. 2008)

("As a general rule, newly constituted panels in a multi-panel

circuit are bound by prior panel decisions closely on point.").

Because this case is controlled by Branzburg, we need not follow

our line of cases which "[i]n substance . . . suggest that the

disclosure of . . . confidential sources may not be compelled

unless directly relevant" to the investigation. In re Special

Proceedings,

.

Instead, we will follow Branzburg in ordering that

materials relevant to the August 2011 subpoena be produced under an

ordinary standard of relevance. We emphasize that Branzburg held

-19- that the public need for information relevant to a bona fide

criminal investigation precludes the recognition of a First

Amendment privilege not available to the ordinary citizen. See

Branzburg,

("[N]ewsmen are not exempt from the

normal duty of appearing before a grand jury and answering

questions relevant to a criminal investigation.") (emphasis added).

The subpoenas in Branzburg were thus justified because the "grand

juries [did not] attempt to . . . forc[e] wholesale disclosure of

names and organizational affiliations for a purpose that was not

germane to the determination of whether crime has been committed .

. . ."

(emphasis added). It was precisely the

relevance of the information sought to the investigation that

justified the public's need for it and, ultimately, the Court's

holding.

("Nothing in the record indicates that these grand

juries were 'probing at will and without relation to existing

need.'") (emphasis added) (brackets in original omitted).

The Supreme Court has also explicitly rejected a

requirement of particularized relevancy in University of

Pennsylvania. See Univ. of Pa.,

("[W]hen a court

is asked to enforce a . . . subpoena, its responsibility is to

'satisfy itself that the charge is valid and that the material

requested is 'relevant' . . . .'"); see also In re Dolours Price,

("[In University of Pennsylvania the Supreme Court]

also rejected a requirement that there be a judicial finding of

-20- particularized relevance beyond a showing of relevance." (citing

Univ. of Pa.,

)).

In the investigatory context, "ordinary relevance"

embodies a broad reading of the concept of "relevance." Dow

Chemical Co. v. Allen,

(7th Cir. 1982) ("The

bounds of relevance . . . tend to be broader in the investigatory

context."). In this context, "ordinary relevance" is the same as

"pertinence." Thus, all materials relevant to the August 2011

subpoena (i.e. "the abduction and death of Mrs. Jean McConville")

are entitled to be produced.

Before moving forward, it is important to clarify that

the phrase "at least in situations distinct from Branzburg" in In

re Special Proceedings,

, does not stand for the

proposition that only cases distinct from Branzburg require the

application of a balancing test. A balancing of First Amendment

concerns vis-à-vis the concerns asserted in favor of the compelled

disclosure of academic and journalistic information is the law in

this circuit for all First Amendment cases and, as explained in our

analysis above, "at least in situations distinct from Branzburg,"

there is room for courts to require direct relevance. In fact, in

Branzburg, the Supreme Court indeed performed, albeit sub silentio,

a balancing test in evaluating the First Amendment challenge raised

by the reporters. See Branzburg,

(balancing the

recognition of a newsman privilege against the impact such

-21- recognition would have on the courts, which would "be[come]

embroiled in preliminary factual and legal determinations" whenever

a reporter was subpoenaed); see also

(Powell, J.

concurring) (a "claim to privilege should be judged on its facts by

the striking of a proper balance between freedom of the press and

the obligation of all citizens to give relevant testimony with

respect to criminal conduct. The balance of these . . . interests

on a case-by-case basis accords with the tried and traditional way

of adjudicating such questions."). In fact, in In re Dolours Price

we pointed out that "Branzburg weighed the interests against

disclosure pursuant to subpoenas and concluded they were so wanting

as not to state a claim."

. After Branzburg, the

Supreme Court continued to engage in balancing tests in the context

of First Amendment challenges brought in academic contexts. See

Univ. of Pa.,

(academic interests were "remote[,]

. . . attenuated . . . [and] speculative" and did not overcome the

interests in favor of disclosure).

Furthermore, Branzburg has not hindered our duty to

perform balancing tests in First Amendment cases, as evidenced by

Bruno & Stillman, where we stated that in Branzburg and Herbert v.

Lando,

(1979), "the First Amendment concerns

articulated by the parties asserting privileges were in fact taken

into consideration by the Court, but found to be outweighed in the

contexts of those cases. This kind of fact-sensitive approach

-22- comports with the shifting weights of the competing interests."

Bruno & Stillman,

. Also, in Cusumano we stated

that, "when a subpoena seeks divulgement of confidential

information compiled by a journalist or academic researcher in

anticipation of publication, courts must apply a balancing test."

Cusumano,

. Even in In re Dolours Price, we performed

a balancing test to evaluate the First Amendment challenge, yet

found Branzburg to be controlling precedent. See In re Dolours

Price,

("The Branzburg analysis, especially as to

the strength of the governmental and public interest in not

impeding criminal investigations, guides our outcome.").

We now turn to the review of the subpoenaed materials,

keeping in mind that a finding of relevance is an evidentiary

finding we review for abuse of discretion. Lluberes v. Uncommon

Prods., LLC,

(1st Cir. 2011) ("The standard of

review concerning a claim of privilege depends on the particular

issue. Questions of law are reviewed de novo, findings of fact for

clear error, and evidentiary determinations for abuse of

discretion.") (citing Cavallaro v. United States,

(1st Cir. 2002)).

E. The August 2011 Subpoenaed Materials

The district court performed an in camera review of more

than 170 interviews of 24 interviewees. Those interviews were

provided to the court by BC after it performed an initial search of

-23- the Project's archives using search terms the government had

provided. As previously indicated, the district court then ordered

produced 85 interviews belonging to 8 interviewees. BC challenges

the order in relation to the production of all interviews, except

for one interview from one interviewee, which it concedes was

correctly ordered produced.

After carefully reviewing each of the materials in

question, we find that although a number of interviewees provide

information relevant to the subject matter of the subpoena and that

the district court acted within its discretion in ordering their

production, it abused its discretion in ordering the production of

a significant number of interviews that only contain information

that is in fact irrelevant to the subject matter of the subpoena.

Before properly stating the result of our review of the

materials we must note that in cases involving criminal

investigations such as this, many of the factual particularities

that inform a court's understanding of the case are contained in ex

parte sealed materials. Although these materials do not expand the

subject matter of the subpoena beyond its terms, they provide

valuable information to a court that cannot be publicly vented in

order to preserve the integrity of the investigation. The

following analysis, therefore, will be devoid of almost all factual

detail in order to preserve the integrity of the investigation.

-24- 1. Interview No. 3 with "P"

BC informed the court before it issued its January 20,

2012 Findings and Order, that BC had mistakenly labeled three

different interviews as "Interview 01 with Interviewee R" on their

cover page, when in fact only one was "Interview 01 with R,"

another was "Interview 03 with R," and yet another was "Interview

03 with P," as could be surmised from the first paragraph of each

transcript (as opposed to the cover page which contained the

error). The court nonetheless ordered the release of all

interviews labeled on their cover pages as belonging to "R." It

stated in a footnote that "[t]hree interviews with 'R,' all

denominated No. 1, have been reviewed. All are to be produced."

We must therefore presume that the district court found that "P's"

interview contained materials responsive to the subpoena.

A review of interview 3 with "P" reveals that the

district court should not have ordered it produced given that it

does not contain any information relevant to the subject matter of

the subpoena.

2. Interviews with "R"

The district court ordered the production of the 17

interviews comprising the entire series with "R." The district

court did not explain why it ordered the entire series produced.

Our analysis of the "R" interviews reveals that only two

interviews, 13 and 14, contain information relevant to the subject

-25- matter of the subpoena. The other fifteen interviews by "R"

contain nothing relevant to the subject matter of the subpoena

under an ordinary relevance standard and should not have been

ordered produced.

3. Interviews 7 with "D" and 4 with "K"

The district court ordered produced two interviews from

two different interviewees because it found, as it explained in its

January 20, 2012 Findings and Order, that they "mention a shadowy

sub-organization within the Irish Republican Army that may or may

not be involved in the incident (the time period and the

geographical location within Northern Ireland are generally

congruent with the incident)." The district court then expressed

that it was "virtually inconceivable" that the UK did not already

know the information," but that it was reticent to substitute its

judgment for that of law enforcement.

We have reviewed both interviews and find that the

district court did not abuse its discretion in ordering them

produced since they contain information relevant to the subject

matter of the subpoena. The district court was correct in

concluding that even if the UK already had the information, the

materials were still relevant to the subpoena and should be ordered

produced.

-26- 4. Interviews with "A"

The district court ordered the production of two

interviews in which "A" had provided answers to questions where the

interviewer specifically inquired about Mrs. Jean McConville. The

district court also ordered the production of eight other

interviews by the same interviewee even though they did not contain

information relevant to the subpoena. The district court did not

explain the reasoning behind its decision to order the production

of the entire series of interviews by interviewee "A."

After reviewing the interviews, we find that the district

court abused its discretion in ordering the production of the eight

interviews with "A" in which the death of Mrs. Jean McConville was

not mentioned at all by either the interviewer or by "A," and which

contain no relevant information relevant to the inquiry in question

by the subpoena. The fact that "A" responded to questions about

the McConville death does not automatically make his or her entire

contribution to the Project relevant to the investigation.

We thus find that only interviews 2 and 5 with "A" should

be produced.

5. Interviews with "S"

The district court ordered the production of two

interviews with "S," interviews 1 and 2. After carefully

scrutinizing both, we deem that only interview 2 should have been

ordered released because it contains information relevant to the

-27- subpoena. Interview 1 does not contain any information that could

reasonably be deemed relevant.

6. Interviews with "Y"

The district court ordered BC to hand over 11 interviews

with "Y." We have also carefully reviewed these materials and find

that only interviews 4 and 10 contain information relevant to the

subpoena. The other interviews do not contain any information

relevant to the subject matter of the subpoena: "the abduction and

death of Mrs. Jean McConville."

7. Interviews with "Z"

The district court ordered the production of 42

interviews with "Z." After reviewing these interviews we find that

only interviews 11 and 42 contain information relevant to the

subject matter of the subpoena. The fact that such information is

found in two specific interviews does not automatically turn the

other 40 interviews by "Z" into materials that are relevant to the

subject matter of the subpoena. "Z" provided scores of information

relating to events spanning several decades. Only the interviews

containing information relevant to the subject matter of the

subpoena should be properly released. The rest of the interviews

contain nothing that could be reasonably considered relevant, and

are indeed, irrelevant.

-28- III. Conclusion

For the reasons set forth above, the district court's

order denying the motion to quash filed by BC and its order to

release 85 interviews is affirmed in part and reversed in part. We

thus affirm the order to turn over the following interviews:

interviews 13 and 14 with "R," interview 7 with "D," interview 4

with "K," interviews 2 and 5 with "A," interview 2 with "S,"

interview 4 and 10 with "Y" and interviews 11 and 42 with "Z." The

order is reversed as to the other interviews, which need not be

released. The case is hereby remanded for the continuation of the

proceedings consistent with this opinion.

Affirmed in part, Reversed in part, and Remanded. No

costs are awarded.

-29-