Thursday, October 20, 2005

Federal Circuit Holds that No Personal Knowledge of Documents Needed to Invoke the State Secrets Privilege

The Federal Circuit in Crater Corp. v. Lucent Technologies, Inc., 423 F.3d 1260 (Fed. Cir. Sep. 07, 2005) has held that in order for the government to properly invoke the state secrets privilege to block discovery, the department head invoking the privilege is not required to have personal knowledge of the contents of every document to be covered by the privilege:

We agree with the government that Secretary Danzig and Acting Secretary Johnson were not required to personally review each and every one of the 26,000 documents at issue in order for the government to properly invoke the state secrets privilege. Although [U.S. v.] Reynolds [345 U.S. 1 (1953)] requires that there be "actual personal consideration" by the head of the pertinent government department, 345 U.S. at 8, 73 S.Ct. 528, we think it sufficient that the Secretary of the Navy and later the Acting Secretary were informed of the nature and scope of the documents sought in discovery, and that each then made the ultimate policy determination, based on his personal knowledge, that disclosure of the material sought would jeopardize a legitimate state secret and would pose a threat to national security.


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