Tuesday, June 14, 2011

Boston College fights subpoenas of IRA oral histories

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
INRE: RequestfromtheUnitedKingdom
Pursu~tto the Treaty Be~eenthe Government of : M.B.D. No. II-MC-91078 the Umted States of Amenca and the Government
ofthe United Kingdom on Mutual Assistance in Criminal Matters in the Matter ofDolours Price
MOTION OF TRUSTEES OF BOSTON COLLEGE TO QUASH SUBPOENAS Trustees ofBoston College and two ofits representatives have been subpoenaed to
produce highly confidential interview materials gathered as part ofan oral history project that documents the history ofconflict in Northern Ireland in the last decades ofthe 20th Century. Trustees of Boston College move to quash, or, in the alternative, modify the subpoenas, and set out in this motion the grounds for their request.
Introductory Statement. Trustees ofBoston College, on their own behalfand on behalfofProfessor Thomas E.
Hachey and Dr. Robert K. O'Neill (collectively, "Boston College"), submit this motion in order to obtain a detennination by the Court of the proper balance to strike between two important interests. One interest is what appears to be a foreign criminal investigation into violence that occurred in Northern Ireland decades ago (the only infonnation Boston College has in that regard is from the heading and text o f the subpoena, because the order o f the Court authorizing the subpoena, and whatever papers were submitted requesting that order, are sealed). The other interest is the protection and promotion o f academic research into the causes o f violence in Northern Ireland, which relies on gathering the stories ofparticipants who spoke about their experiences only on the condition ofconfidentiality.
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F.R. Crim. P. 17(c)(2) provides that ''the court may quash or modify the subpoena if compliancewouldbeunreasonableoroppressive." Throughthismotion,BostonCollegeseeks the Court's direction on important issues ofpublic policy. Boston College presents the facts and applicable law in this motion not as a typical advocate seeking to protect its own parochial concerns, but as an institution ofhigher education seeking appropriate resolution ofconflicting interests o f fundamental importance to academia and to society as a whole.
Procedural background. On May 5, 2011, Commissioner's Subpoenas dated May 2,2011, directed to the John J.
Burns Library at Boston College, Robert K. O'Neill, the Burns Librarian, and Boston College UniversityProfessorThomasE.Hachey,wereservedonthenamedrecipients. Thesubpoenas were issued pursuant to a treaty between the United Kingdom and the United States, 18 U.S.C. §3512,andanOrderofthiscourtdatedMarch31,2011. Accordingtothesubpoenas,theywere issued for the purpose o f assisting the United Kingdom
''regarding an alleged violation ofthe laws ofthe United Kingdom, namely, murder, contrary to Common Law; conspiracy to murder, contrary to Connnon Law; incitement to murder, contrary to Common Law; aggravated burglary, contrary to Section 10(1) of the Theft Act (Northern Ireland) of 1969; false imprisonment, contrary to Common Law; kidnapping, contrary to Common Law; and causing grievous bodily harm with intent to do grievous bodily harm, contrary to Section 18 of the Offenses Against the Person Act of 1861."
The subpoenas commanded production on May 26,2011, of the following documents:
"I. TheoriginaltaperecordingsofanyandallinterviewsofBrendanHughesand Dolours Price.
"2. Anyandallwrittendocuments,includingbutnotlimitedtoanyandall transcripts, relating to any and all tape recordings ofany and all interviews of Brendan Hughes and Dolours Price.
"3. Anyandallwrittennotescreatedinconnectionwithanyandallinterviewsof Brendan Hughes and Dolours Price.
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"4. Anyandallcomputerrecordscreatedinconnectionwithanyandall interviews of Brendan Hughes and Dolours Price."
On May 26,2011, Boston College produced the audio recordings, transcripts, and word processing files 0 f the interviews of the late Brendan Hughes, because the conditions pertaining totheconfidentialityofhisinterviewshadterminatedwithhisdeath. Byagreementwiththe United States Attorney's Office, the date for Boston College to produce the other documents and materials sought in the subpoenas or otherwise respond to them was extended to June 2, 2011.
Factual background. The interview materials sought by the subpoenas are part of an oral history archive
collected and preserved by Boston College and constitute a unique resource for academic research: the stories told by participants in the "Troubles" in Northern Ireland from 1969 through the early 2000's. Affidavit ofRobert K. O'Neill (O'Neill Affidavit), ~ 3. Those stories were gathered as part of the Boston College sponsored ''Belfast Project" by interviewers who, starting in 2001 and extending through approximately 2006, interviewed members ofthe Provisional Irish Republican Army, the Provisional Sinn Fein, the Ulster Volunteer Force, and other paramilitary and political organizations regarding their involvement in the "Troubles." ld.; Affidavit ofEd Moloney (Moloney Affidavit), ~ 26.
1. The purposes o f the Belfast Project.
The purposes of the Belfast Project were to gather and preserve for posterity recollections that would help historians and other academicians illuminate the intricacies ofthe Northern Ireland conflict in studies and books, and that would advance knowledge ofthe nature ofsocietal violence in general, through a better understanding of the mindset ofthose who played a significantpartintheeventsinNorthernIreland. AffidavitofThomasE.Hachey(Hachey Affidavit),~5;MoloneyAffidavit,n3,21-23. Inaddition,ifandwhenatruthand
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reconciliation process for Northern Ireland is launched by the British and Irish governments, following the model in South Africa following the end of apartheid, the trove of first-hand reportsgatheredandpreservedbytheBelfastProjectmayserveasacriticalresource. Moloney Affidavit, '11'1119-20, 24.
2. The initiation o f the Belfast Project.
The Belfast Project was conceived following the 1998 Good Friday Agreement (GFA). The GFA was negotiated by the British and Irish governments, together with the major political parties of Northern Ireland including Sinn Fein, the political wing of the Irish Republican Army (IRA). The IRA was the principal group fighting to achieve the withdrawal ofBritain from NorthernIrelandandseekingIrishreunificationandindependence. MoloneyAffidavit,'114:
Lord Paul Bew, then a faculty member at Queens University Belfast, and a visiting scholar at Boston College, first suggested the value of preserving in an oral history the recollections ofthose directly involved in the Troubles. Hachey Affidavit, '112; O'Neill Affidavit,'114. ProfessorBewbelievedthat,withthedramaticchangesinNorthernIreland following the GFA, it was essential to begin collecting and preserving the memories ofthose whohadbeencombatantsforover20years. MoloneyAffidavit,'l1'li10-12. ProfessorBew believedthatbuildingsucharesourcewouldhavegreatvalueforfuturehistorians. Hachey Affidavit, '113.
•A moreextendedviewofthehistoryoftheconflictinNorthernIrelandisofferedinthe AffidavitofEdMoloney at 11"/14-18, in the event that the Court would find such background useful in addressing the issues Boston College's motion presents.
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3. The sponsorship ofthe Belfast Project by Boston College.
The Irish Collection at the Burns Library of Boston College has been recognized as one ofthe most comprehensive collections ofIrish historical, political, and other materials outside of Ireland. O'Neill Affidavit, 'II 2. Paul Bew had been a Bums Scholar at Boston College in the late 1990s, and was therefore familiar with the institution and its importance as a principal repositoryofIrishhistorymaterialsintheUnitedStates. HacheyAffidavit,'112.
These factors made Boston College the ideal sponsor for the Belfast Project and the natural host for its archive. In fact, this year the British and Irish govermnents donated to Boston College highly sensitive papers regarding the GFA and its implementation, thereby confirming that both govermnents view Boston College as a neutral, unbiased, and secure repository for importantmaterialsrelatingtothishistory. O'NeillAffidavit,'1115;MoloneyAffidavit,'1124.
4. The importance ofconfidentiality to the success ofthe Belfast Project.
It was recognized from the very start that the success of the Belfast Project would depend entirely upon the willingness ofa large number ofthe participants to agree to talk, and to talk candidly, to interviewers for the Project. It was equally obvious that the interviewees' willingness to participate depended on giving them assurances that their identities, and what they disclosedintheinterviews,wouldbeheldinstrictconfidence. O'NeillAffidavit,'1111;Hachey Affidavit,'11'116-7;AffidavitofAnthonyMcIntyre(McIntyreAffidavit,'118). Iftheparticipants not been promised confidentiality, their memories would not have been preserved and would havebeenlostupontheirdeaths. O'NeillAffidavit,'1112.
The reason those interviewed for the Belfast Project insisted on confidentiality was not simplytheirinterestinnotincriminatingthemselvesortheircolleagues. Inthecaseofformer IRA members such as Dolours Price, ofequal or greater importance was the danger ofretaliation
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fromotherIRAmembers. TheIRAimposesacodeofsilenceakintotheconceptof"omerta"in the Mafia. Moloney Affidavit, '\[28; McIntyre Affidavit, '\[8. Because those who were perceived as having violated that code were subject, under IRA rules, to punishment by death, interviewers and interviewees who had been associated with the IRA were naturally unwilling to participate in the Belfast Project without assurance that the interviews would be kept locked away until the interviewees'deaths. ld.
Potential interviewees for the Belfast Project were therefore assured that their identities and the contents of their interviews would be kept confidential and not disclosed until the earlier oftheiragreementtopermitdisclosureortheirdeath. McIntyreAffidavit,'\['\[6-7. Theperson who interviewed Dolours Price believed that there were no circumstances under which disclosure would be required, and would not have participated in the Belfast Project ifhe had thought otherwise. ld., '\[8. Dolours Price was expressly informed ofthis condition and relied upon it in giving her interviews. ld., '\[6.
Another interviewee, Brendan Hughes, who received the same commitment, died in 2010. Moloney Affidavit, '\[26. The interview materials ofBrendan Hughes, which were also sought by the subpoenas to Boston College, have already been produced by Boston College in accordance with the subpoenas because the embargo on access to them ended with his death.
The assurances of confidentiality at the start and during the interview process were subsequentlydocumentedwhentheinterviewswereconcluded. Eachintervieweewasgivena form to donate his or her interview materials to the Burns Library at Boston College on the express condition that the materials would not be disclosed, absent the interviewee's permission, until after his or her death. O'Neill Affidavit, '\[6; McIntyre Affidavit, '\[ 9; Moloney Affidavit,
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~ 29. A copy ofthat form signed by the late Brendan Hughes is Attachment 2 to the Affidavit of RobertK.O'Neill. SeeO'NeillAffidavit,~7.
Dolours Price signed a donation agreement in the standard form used by the Belfast Project. Mcintyre Affidavit, ~ 11, 15. Her interviewer sent that form to Boston College (and, for reasons of security, did not keep a copy), but the Burns Library has been unable to locate a copyofthePricedonationform. McIntyreAffidavit,~12;O'NeillAffidavit,~8;Moloney Affidavit,~30. DoloursPricewasre-interviewedin2010bytheformerProjectDirectorofthe Belfast Project, again with the same promise o f confidentiality as applied to her earlier interviewsaspartoftheBelfastProject. MoloneyAffidavit,~35. Thematerialsfromthose interviews were sent to the Burns Library at Boston College to be part of the historical record relating to Dolours Price. Id.; O'Neill Affidavit, ~ 14.
5. Protection ofthe interview materials.
Boston College has scrupulously observed the expectations of confidentiality given to thoseinterviewedfortheBelfastProject. InterviewmaterialsarestoredattheBurnsLibraryof Boston College, in a secure area, monitored by cameras, with access controlled by a combination ofkeyed lock and entry ofa security code. Access is limited to select Burns staff, and the key mustbesignedoutbystaff. O'NeillAffidavit,~9. Onlythefewinterviewersandacademicians directly involved in the Project have been permitted to see the materials ofthose interviewees whohavenotdied. O'NeillAffidavit,~10;HacheyAffidavit,~8-9.
Argument. More than a decade ago, the First Circuit held that "when a subpoena seeks divulgement
ofconfidential information compiled by a[n1... academic researcher in anticipation of publication, courts must apply a balancing test ...." Cusumano v. Microsoft Corp., 162 F.3d 708,716 (1st Cir. 1998) (emphasis added).
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Cusumano established a three-part test for determining whether, and to what extent, to
enforce a subpoena for the compelled disclosure of academic research materials: "[i]nitially, the
... [party seeking the information] must make a prima facie showing that ... [its] claim ofneed
and relevance is not frivolous"; after that burden is met, "the burden shifts to the objector to
demonstrate the basis for withholding the information"; the Court then balances the "need for the
information on one pan ofthe scales and those that reflect the objector's interest in
confidentiality and the potential injury to the free flow of information that disclosure portends on
theoppositepan." 162F.3dat716(citationsomitted).
I. THE GOVERNMENT'S PRIMA FACIE SHOWING. Boston College acknowledges and respects the legitimate public purpose in pursuing
criminalinvestigations,andwillinglycooperateswithauthorities. Inthiscase,BostonCollege has no way to know the basis for the request by authorities in the United Kingdom to obtain the Belfast Project interview materials ofDolours Price, because the papers that would shed light on therequesthavebeensealed. Nevertheless,BostonCollegestipulates,forthefirstpartofthe Cusumano test, that the need for such materials is not "frivolous."
At the same time, Boston College believes that the government ofthe United Kingdom has indicated by its actions a policy not to pursue events that occurred before the GFA peace accords, in order to put the past behind and achieve and maintain reconciliation in Northern Ireland. The implementation of the GFA led to the disarming ofthe IRA and other militant groups and the granting of effective amnesty to all prisoners from paramilitary organizations. MoloneyAffidavit,'1[7. Thiseffectiveamnesty,thoughcontroversial,waswidelyunderstoodto mean that the British government was going to close this chapter of history, and not seek to pursue criminal investigations into events that occurred during the course ofthe Troubles. Id.
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The beliefthat prosecutorial action had ended was a significant factor in the willingness ofthose interviewed as part ofthe Belfast Project to talk candidly about the conflict. Id., '\18. That same beliefgave assurance to those in charge ofthe Belfast Project that the interviewees' materialswouldbesafeevenfromcompulsoryprocessinthejudicialsystem. O'NeillAffidavit, '\113.
Boston College also believes that forced disclosure o f Belfast Project materials may challenge the delicate political stability that has been achieved in Northern Ireland, and threaten toenflamethesectariangrievancesthathavebeenmostlyquietedsincetheOFA. Hachey Affidavit, '\113; O'Neill Affidavit, '\117.
For these reasons, Boston College requests that the Court, which has access to the reasons
presented by the United Kingdom for the issuance ofthe subpoenas to Boston College, consider
how compelling the need for the archive materials is, particularly in light ofwhat appears, from
the public information available to Boston College, to be governmental decisions made since the
OFA to avoid seeking or enforcing criminal sanctions against members of paramilitary
organizations that occurred in the past.
II. THE INTERESTS OF BOSTON COLLEGE IN WITHHOLDING THE INFORMA TION REOUESTED.
The Court in Cusumano stated that "[a]cademicians engaged in pre-publication research shouldbeaccordedprotectioncommensuratetothatwhichthelawprovidesforjournalists." 162 F.3dat714. TheFirstCircuitdescribedthereasonswhyacademicresearchmaterialsdeserve protection as follows (162 F.3d at 714 [emphasis added]):
"scholars ... are information gatherers and disseminators. Iftheir research materials were freely subject to subpoena, their sources likely would refuse to confideinthem. Aswithreporters,adrying-upofsourceswouldsharplycurtail the information available to academic researchers and thus would restrict their output. Justasajournalist,strippedofsources,wouldwritefewer,lessincisive
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articles, an academician, stripped of sources, would be able to provide fewer, less cogent analyses."
Given the importance ofprotecting and fostering academic research, "courts must balance the potential hann to the free flow of information that might result against the asserted need for the requested information." Cusumano, 162 F.3d at 716, quoting Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 595-96 (lst Cir. 1980). This balance must be struck in criminal as well as civil proceedings. United States v. LaRouche Campaign, 841 F.2d 1176,
1181 (1st Cir. 1988). See Cusumano, 162 F.3d at 716. The District of Columbia Circuit has noted that there is a wide-spread recognition that the
interests ofscholars in defending their research materials from unwarranted discovery are legitimate and deserve weight in balancing the needs of the requesting party and the concerns of therecipientofthesubpoena. Burkav. UnitedStatesDepartmentofHealthandHuman Services, 87 F.3d 508, 519-21 (D.C. Cir. 1996). In reviewing parallel issues relating to joumalists, the First Circuit explained that
"[w]hether or not the process of taking First Amendment concerns into consideration can be said to represent recognition by the Court of a "conditional," or"limited"privilegeis,wethink,largelyaquestionofsemantics. Theimportant point . . . is that courts faced with enforcing requests for the discovery o f [such] materials . . . should be aware ofthe possibility that the unlimited or unthinking allowance of such requests will impinge upon First Amendment rights."
Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583,595-96 (1st Cir. 1980) (footnotes omitted).
The issue is not whether courts recognize a formal academic privilege. The fact is that courts in many jurisdictions acknowledge the importance ofprotecting the materials academic researchersgatherfromsourcesthathaveareasonableexpectationofconfidentially. "Federal courts interpreting the discovery rules have frequently denied or limited discovery absent claims offormal privilege, based upon reasons ofpublic policy." Plough, Inc. v. National Academy of
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Sciences, 530 A,2d. 1152, 1157 (D.C. 1987) (citation omitted). See also Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1548 (11th Cir. 1985) (protection of confidential research information "does not depend upon a legal privilege").
In Dow Chemical Co. v. Allen, 672 F.2d 1262, 1274 (7th Cir. 1982), the Seventh Circuit considered the assertion that subpoenas seeking scholarly research materials "touch[] directly upon interests ofacademic freedom." Noting the long line ofprecedents, including many at the level of the United States Supreme Court, that hold academic freedom to be a core First Amend- ment value, the Court concluded that "to prevail over academic freedom the interests of government must be strong and the extent of the intrusion carefully limited" (672 F .2d at 1275 [emphasis added]).
These concerns are particularly germane when the materials gathered in the course of academicresearchwereprovidedbysourceswithanexpectationofconfidentiality. AstheCourt in Richards o/Rockford, Inc. v. Pacific Gas &Electric Co., 71 F.R.D. 388, 389 (N.D. Cal. 1976), noted, "society has a profound interest in the research of its scholars, work which has the unique potential to facilitate change through knowledge." The Court went on to acknowledge that
"[m]uch ofthe raw data on which research is based simply is not made available except upon a pledge ofconfidentiality. Compelled disclosure ofconfidential information would without question severely stifle research into questions of public policy, the very subjects in which the public interest is the greatest."
(71 F.R.D. at 389-90). See also United States v. Doe, 460 F.2d 328,333 (1st Cir. 1972), cert. denied, 411 U.S. 909 (1973) (acknowledging "an important public interest in the continued flow of information to scholars about public problems which would stop if scholars could be forced to disclose the sources ofsuch information").
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The courts' concerns about compelling the production ofresearch materials that have been gathered with an understanding of confidentiality are founded not only on the risk of breaching that understanding with past research subjects, but also on the fact that such a breach will inevitably inhibit future research that requires such confidentiality. In Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985), the Court upheld protection of confidential patient information "obtained from a population willing to submit to in-depth questioning"outoffearthatproduction"couldseriouslydamagethisvoluntaryreporting." Sim- ilarly, in Snyder v. American Motors Corp., 115 F.R.D. 211,215-16 (D. Ariz. 1987), the Court quashed a subpoena to avoid what it saw as "[t]he potential for a chilling effect on research [that] appears great ...." The Court in Snyder expressed particular concern about the impact of compelled disclosure on "members ofthe public who volunteer, under a promise of confidentiality, to provide information for use in such studies [citation omitted]. See also Harris v. Upjohn Co., 115 F.R.D. 191, 192 (S.D. Ill. 1987) (protective order crafted for identities of reporting physicians in order to prevent "a deterrent on efforts to conduct research in the medical and science community").
A. Disclosure violates the interviewee's expectation of confidentiality. As explained above (pp. 5-7), all ofthe interviews taken in the course ofthe Belfast
Project, and specifically the interviews with Dolours Price, were premised on an express agreement ofthe interviewer, the interviewee, and those in charge ofthe Belfast Project at Boston College that the identity ofthe interviewees and the substance of the interviews would be kept confidential at the Burns Library at Boston College, and not disclosed until the interviewees' deaths unless the interviewees gave permission for earlier disclosure. The promise ofconfidentiality was essential to win cooperation from the interviewees, because they had engaged in activities during the Troubles that put them at risk ofpunishment by both former
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combatantsandbycivilauthorities(seep.5). Inaddition,simplybydisclosinginfonnation about their IRA activities, fonner IRA members like Dolours Price knew they were violating the code of silence that the IRA historically enforced by death (see pp. 5-6).
In Cusumano v. Microsoft Corp., 162 F.3d 708,715 (Ist Cir. 1998), the First Circuit recognized that "confidentiality comes in varying shapes and sizes." The Court went on to state that "determinations ofwhere particular disclosures fall along the continuum ofconfidentiality, and related determinations anent the degree ofprotection that attaches to them, must take into account the totality ofthe circumstances." Id. Boston College has presented in the affidavits filed in support ofthis motion clear evidence that confidentiality was both an agreement with the intervieweesandanecessityforthesuccessoftheBelfastProject. Becauseconfidentialitywas the essential condition on which the interview materials were created in the first place, they deserve a high degree ofprotection in the Court's balancing ofthe Cusumano scales.
B. Disclosure risks serious harm to participants in the Belfast Project. There is a real risk ofharm to participants in the Belfast Project ifmaterials that were
giveninconfidencewereordereddisclosed. Asexplainedearlier(seepp.5-6),theIRApunished violations ofits code of silence severely, and those who still follow its practices may seek to take vengeance against those whose involvement in the Belfast Project is now revealed and yields new disclosures. Moloney Affidavit, '1133. Ofcourse, some oftheir involvement is already in the public domain, either from the publication o f information previously released from embargo, from their own statements, or from the attention already engendered by the subpoenas to Boston College. But the disclosure ofthe interview materials ofDolours Price to government authorities mayonlyfocusthepotentialanger. McIntyreAffidavit,'1118.
The interviewers for the Belfast Project have expressed their own apprehensious, and one experienced what appeared to be retribution aimed at him and his family, and became aware of
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death threats against him, when his involvement in the Belfast Project was first disclosed. Hachey Affidavit, ~ 12; Moloney Affidavit, ~ 33; McIntyre Affidavit, ~ 18. The director ofthe Center for Irish Programs at Boston College, who helped oversee the Belfast Project, was recently warned by the United States Consul General in Belfast not to come to Belfast for a previously planned celebration ofBoston College's contribution to the peace process because of reactions to the possible release ofmaterials from the Belfast Project. Hachey Affidavit, ~ 12.
Mostimportantly,thereisadirectrisktoDoloursPrice. Inherinterviewsshemayhave revealed IRA information in violation ofthe code ofsilence enforced by the IRA. Moloney Affidavit,~33. Shenowsuffersfromseriousdepression,andthepersonwhointerviewedher for the Belfast Project asserts that she will be deeply traumatized by the forced disclosure ofthe interviews she agreed to give on the promise that they would not be disclosed during her lifetime. McIntyre Affidavit, ~ 17.
A 2009 decision ofthe High Court ofBelfast, In re: Application byDlInspector Galloway, annexed to this motion as Attachment A, demonstrates the real and persistent danger tothosemakingdisclosuresabouttheIRA. Inthatcase,theCourtdeclinedtorequirea jouroalist to produce information relevant to a horrific crime that the jouroalist had gathered regarding the activities ofthe Real IRA. The decision was based not only on grounds of journalistic privilege, but also on the conclusion that there was a demonstrable risk to her life if shewasrequiredtodisclosetheinformation. Thisdecisionconfirmsthattheconcernsexpressed in the affidavits submitted in support of this motion are well-grounded and not speculative.
C. Disclosure deters individuals from cooperating in future oral history projects.
When the stories people tell may expose them to risk ofpersonal harm, criminal prosecution, or disclosure of secrets they do not want revealed during their lifetimes, gathering
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valuableoralhistoryrecordsdependsonconfidentiality. Ifconfidentialitycanbebreachedby enforced disclosure through the use of a subpoena, oral history projects dealing with sensitive or controversialsubjectswillbedifficult,ifnotimpossible,topursue. O'NeillAffidavit,'1[16; Moloney Affidavit, mr25,32; McIntyre Affidavit, '1[17.
Oral historians are aware of, and deeply troubled by, the news that the confidential
materials held by Boston College from the Belfast Project may be ordered disclosed to
governmental authorities despite the fact the interviews were given with the expectation they
wouldbekeptsealeduntiltheinterviewee'sdeath. HacheyAffidavit,mr10-11. Theformer
president ofthe Oral History Association has submitted an affidavit attesting to the fact that the
mandated disclosure o f the confidential materials sought under the subpoenas from Boston
College will harm the ability ofothers in the field to obtain essential historical materials.
AffidavitofCliffordM.Kuhn,'1[5. Bybreachingtheconfidencepromisedtointervieweesinthe
Belfast Project, potential interviewees in future oral history projects may decline to participate in
such projects, and vital historical work will be diminished. Id., '1['1[6-7.
III. THE SUBPOENAS ARE OVERBROAD. The subpoenas served on Boston College are overbroad in two different respects. First,
by seeking generally the tape recordings and transcripts of "any and all interviews of ... Dolours Price," the subpoenas appear to be a classic fishing expedition, not appropriately tailored to the purposes of whatever investigation is being pursued by governmental authorities in the United Kingdom. Becausethepapersthatpresumablydescribethepurposesofthatinvestigationare sealed, Boston College is unable to present with more specificity in what ways the subpoenas overreach. ButbyseekingalltheinterviewswithDoloursPrice,whenthoseinterviewscovered a myriad of subjects, the subpoenas are by definition not focused on particular matters.
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Boston College therefore requests either that the Court pennit designated representatives ofBoston College to have access to infonnation about the purposes ofthe investigation so that Boston College can more particularly identify in what ways the subpoenas are overbroad, given the infonnation that Boston College knows are in the interview materials ofDolours Price, or that the Court itself undertake such a review (in which case Boston College would submit the transcripts ofthe Dolours Price interviews to the Court for an in camera inspection).
The second respect in which the subpoenas are overbroad is that they seek from Boston College(inn2and 4ofeachofthesubpoenas)"[a]nyandallwrittendocuments...relatingto any and all tape recordings ofany and all interviews of... Dolours Price" and "[a]ny and all computer records created in connection with any and all interviews of ... Dolours Price.) While Boston College can ifnecessary detennine and produce without undue burden and expense the recordings and transcripts ofthe interviews, locating all written documents that relate to them and all computer records that were created in connection with them would require a process both dubiousanddaunting. Detenniningwhatwrittendocumentsmayexistthat"relate"tothe interviews would require Boston College to spread a wide net to gather large volumes of materials, which would then have to be reviewed by lawyers and paraprofessionals to make subjective judgments about what does or does not constitute a relationship. Similarly, finding and reviewing all computer records "created in connection" with the interviews would impose significant burdens on Boston College, while unlikely to produce any materials ofvalue beyond the interview recordings and transcripts themselves. Paragraphs 2 and 4 ofthe subpoenas should therefore be narrowed to require no more than the recordings and transcripts of the interviews themselves.
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Conclusion. For the reasons stated in this motion, Boston College requests that the Court quash the
Commissioner's subpoenas dated May 2,2011, directed to the Burns Library at Boston College, Professor Hachey, and Dr. O'Neill. In the alternative, Boston College requests that the Court direct a process to narrow the subpoenas by either permitting designated representatives from Boston College access to the documents that describe the purposes ofthe investigation to enable them to specify with more particularity in what ways the subpoenas are overbroad, or by the Court conducting such a review in camera. In any event, Boston College requests that the subpoenas be modified by striking so much ofm! 2 and 4 as requires the production ofmaterials other than the recordings and transcripts of interviews.
Dated: June 2, 2011
By its attorneys,
lsi Jeffrey Swope
Jeffrey Swope (BBO #490760) EDW ARDS ANGELL P ALMER & DODGE U P
111 Huntington Avenue Boston, Massachusetts 02199-7613 (617) 239-0100 jswope@eapdlaw.com
CERTIFICA TE OF SERVICE
I hereby certify that this document sent electronically to Assistant United States Attorney John T. McNeill on June 2, 2011.
lsi Jeffrey Swope

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