The United States Court of Appeals
Sixth Circuit

(Part 5 of 9)

V.

A.

The government argued in its brief to the Special Master that mere nondisclosure can never be fraud on the court. The master rejected the argument as a misinterpretation of this court's statement in H. K. Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d 1115, 1118 (6th Cir. 1976), that "allegations of nondisclosure during pretrial discovery are not sufficient to support an action for fraud on the court." The government quoted this statement out of context. When the context is examined, it is clear that the court in Porter was concerned with a claim of fraud based on an attorney's failure to disclose documents not requested by opposing parties that pertained to confidential disclosures from a client. The master stated, correctly we believe, that it would be error "to exclude from the definition of fraud on the court intentional, fraudulent nondisclosure during discovery." S.M. Report at 187-88.

The Special Master set forth the elements of fraud upon the court as consisting of conduct:

1. On the part of an officer of the court; 2. That is directed to the "judicial machinery" itself; 3. That is intentionally false, wilfully blind to the truth, or is in reckless disregard for the truth; 4. That is a positive averment or is concealment when one is under a duty to disclose; 5. That deceives the court.

As shown by his description of the third element, and repeated in his opinion, the master held that the intent requirement "is satisfied by proof of actual intent to defraud, of wilful blindness to the truth, or of a reckless disregard for the truth." S.M. Report at 185-86, 190 (emphasis added).

B.

We have trouble squaring this definition with the master's ultimate conclusion. The master stated that "a careful reading of Mr. Demjanjuk's discovery requests demonstrates that he asked for virtually every piece of evidence that is at issue in these proceedings," but the government did not provide the evidence because it believed it was under no duty to do so. S.M. Report at 204.

The government attorneys had the same obligation as the master to give these requests a "careful reading." The master also faulted Demjanjuk's attorneys for failing to pursue every lead provided by the responses that the government did make. That may be a correct assessment as to some leads, but Demjanjuk's attorneys were depending on government attorneys to root out information in the possession of foreign nations and to provide it. This was so because only the government has the contacts and resources necessary to obtain information from foreign governments, and because a government attorney agreed to do just that at a pretrial hearing before a magistrate. S.M. Report at 157.

This case involves more than discovery obligations, however. Ryan testified that he had stated many times that OSI had a policy and practice of turning over exculpatory information even if it had not been requested in discovery. Transcript, Jan. 29, 1993, at 32-40. The other OSI attorneys testified that they knew of no such policy.

While the denaturalization case was before the Supreme Court on Demjanjuk's petition for certiorari, Demjanjuk received from private sources a copy of the August 1979 letter from a Polish official to Martin Mendelsohn concerning the report of the Polish Main Commission. Demjanjuk requested information about the Polish report. Moscowitz responded and sent a part of the Commission materials. John Martin, Demjanjuk's attorney, immediately wrote to Allan Ryan, then director of OSI, requesting copies of the document described in the letter. OSI attorney Bruce Einhorn drafted a response and sent it to Ryan for approval. This second response stated that "all relevant and discoverable documents in the Government's possession have been provided to you under the Federal Rules of Civil Procedure."

The letter went on to decline the request for "further discovery." The master found that this letter was sent to Martin with a copy to Judge Battisti, apparently with Ryan's approval. S.M. Report at 135-36. These responses do not square with Ryan's professed policy. The OSI letter is couched in terms of the requirements of the discovery rules and limiting production to documents specifically requested, not one of disclosing all exculpatory information.

C.

The Special Master based his ultimate conclusion that Demjanjuk failed to prove fraud on the court almost exclusively on his finding that the OSI attorneys acted in good faith. While he stated that they were not reckless, he did not discuss this finding at all. Instead, he emphasized his finding that "they did not intend to violate the Rules or their ethical obligations . . . . they did not misstate facts or the law as they understood them, and did not make statements in ignorance while aware of their ignorance. Although they were blinded to what we may now perceive to be the truth, they were not wilfully blind." S.M. Report at 206.

The quoted findings are based largely on credibility determinations. Although we might not agree with each finding, giving them the required deference, we cannot find them clearly erroneous. The conclusion that the OSI attorneys were not reckless, however, stands on a different footing. Given the Special Master's finding of no deliberate or wilful failure to disclose information arising from an evil motive, we believe the type of reckless disregard to be examined in this case is the second type described in the Restatement (Second) of Torts @ 500, comment (a):

Recklessness may consist of either of two different types of conduct . . . In [the second type], the actor has . . . knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so. An objective standard is applied to him, and he is held to the realization of the aggravated risk which a reasonable man in his place would have, although he does not himself have it.

Such recklessness can and should be determined from an objective examination of the actions of the parties in a particular set of circumstances. We will undertake such an objective examination, accepting as true that no OSI attorney deliberately withheld from Demjanjuk or the court information that he believed he had a duty to disclose even though the withholding itself was deliberate.

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