In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3495

UNITED STATES DEPARTMENT OF EDUCATION,

Plaintiff-Appellee,

v.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:06-CV-01333—John Daniel Tinder, Judge.

____________

ARGUED FEBRUARY 23, 2007—DECIDED MARCH 21, 2007

____________

Before POSNER, KANNE, and ROVNER, Circuit Judges.

POSNER, Circuit Judge. The University of the District of

Columbia is a member of the National Collegiate Athletic

Association, and as such subject to its rules. A violation of

an NCAA rule can impose heavy costs should it result in

the imposition of sanctions on the violator. Typical sanctions, such as banning the violator from postseason competition or reducing its athletic scholarships, make a

school less successful in postseason play, upon which the

school’s share of the television and other media revenues
2 No. 06-3495

that the NCAA obtains and doles out to its members

primarily depends.

Member schools can minimize their punishment, however, by reporting their violations to the Association before

it discovers them. UDC did this, reporting violations

involving its basketball teams in the 2004-2005 season. The

exact nature of the violations is unclear, but they seem to

have included misuse of federal funds, and the Inspector

General of the Department of Education began an investigation of that misuse. In the course of the investigation the

Department issued a subpoena to the NCAA for documents that UDC had submitted, or the Association had

prepared, in connection with the Association’s investigation of UDC’s self-reported violations. The Association

moved to quash the subpoena or in the alternative for

the protective order described below. The district court

denied the motion; the Association appeals only from the

denial of the protective order.

The Association acknowledges that compliance with the

subpoena is not burdensome in the sense of imposing

heavy costs of identifying, locating, copying, or transporting the documents to the Department of Education, that

the documents sought are relevant to the Department’s

investigation, and that the Department is authorized by

law to conduct such an investigation. But the Association

argues that if the government can make unrestricted use of

documents submitted to the Association in aid of the

Association’s own investigations, this will impede those

investigations because whistleblowers will worry that if

they inform to the Association their cover will be blown.

This amounts to arguing that a private organization should

have the right to impede government investigations

because it wants to conduct its own investigations without
No. 06-3495 3

hindrance. To state the proposition is almost enough to

refute it.

Of course there are privileges that can be used to keep

information from government agencies and thus impede

government investigations, such as the lawyer-client

privilege. But there is no private-investigator’s privilege.

The lawyer-client privilege can embrace a lawyer’s agents

(including an investigator), for example when “the client

in the first instance consults a lawyer who retains an

accountant as a listening post.” United States v. Kovel, 296

F.2d 918, 922 (2d Cir. 1961) (Friendly, J.); see also United

States. v. Haynes, 216 F.3d 789, 793-94, 798 (9th Cir. 2000);

United States v. Alfonso, 552 F.2d 605, 617 (5th Cir. 1977);

Parkman v. Arkansas, 742 S.W.2d 927, 928-29 (Ark. 1988);

Flynn v. Superior Court, 57 Cal. App. 4th 990, 992-96 (1997);

cf. United States v. Nobles, 422 U.S. 225, 237-39 (1975) (work

product). But there is nothing like that in this case.

There isn’t even a reporter’s privilege in federal cases.

Branzburg v. Hayes, 408 U.S. 665 (1972); University of

Pennsylvania v. EEOC, 493 U.S. 182, 201 (1990); McKevitt v.

Pallasch, 339 F.3d 530 (7th Cir. 2003). The news media

conduct investigations, and their ability to do so would be

enhanced if they were permitted to conceal the identity of

their sources from the government. But they are not.

So the NCAA has trimmed its sails, asserting in this

appeal a right not to withhold documents from the government but instead to a protective order that will forbid the

Department to show them to anyone without five days’

advanced notice to the Association. During that cooling-off

period the Association would go to the intended recipient

of the documents (whom the Department would have to

identify to the Association) and ask him to keep any

sensitive information in the documents confidential. If he
4 No. 06-3495

refused or was unable to give adequate assurance of

confidentiality, the NCAA would have a right to ask the

court for a further protective order, of indefinite length,

against the Department’s turning over the documents.

That further order would be enforcing a privilege

under a different name; the government would have

physical possession of the documents but its ability to use

them would be severely limited. Even the five-day coolingoff period would hamper the government’s investigation

because of the NCAA’s implied threat to sue any intended

recipient of documents if he refused to play ball with the

Association. Imagine if the Department of Education

intended to give documents that it had obtained from the

NCAA to a Justice Department prosecutor for presentation

to a grand jury. If the prosecutor decided to submit them to

a grand jury over the Association’s protests, the Association would bring suit to enjoin the submission. The suit,

whatever its outcome, would impede the grand jury’s

investigation.

The Association was stung by a recent incident in which

it received information from the head football coach at the

University of Tennessee, Phillip Fulmer, concerning

possible violations of NCAA rules by another university.

It gave the information to a grand jury pursuant to subpoena. The information became public, precipitating a

defamation suit against Fulmer and the NCAA seeking

$60 million in damages. Dagnan v. Fulmer, No. 163126-3

(Knox Cty., Tenn., Chancery Ct., Nov. 21, 2005). The suit

doesn’t seem to be going anywhere. Defamation based on

material contained in a response to a subpoena, as in other

statements made in a judicial proceeding, Myers v. Pickering

Firm, Inc., 959 S.W.2d 152, 159 (Tenn. App. 1997); Glennon

v. Dean Witter Reynolds, Inc., 83 F.3d 132, 137 (6th Cir. 1996)
No. 06-3495 5

(Tennessee law); MacGregor v. Rutberg, No. 06-2829, 2007

WL 582494, at *1 (7th Cir. Feb. 27, 2007), is absolutely

privileged. Boice v. Unisys Corp., 50 F.3d 1145, 1148-49 (2d

Cir. 1995), as the trial court in the Dagnan case has ruled.

Dagnan v. Fulmer, supra, at 9-14. (The suit remains pending on other grounds.) The “common interest” privilege,

see, e.g., Pate v. Service Merchandise Co., 959 S.W.2d 569, 576

(Tenn. App. 1996); Kennedy v. Children’s Service Society, 17

F.3d 980, 985 (7th Cir. 1994); Gumbhir v. Curators of University of Missouri, 157 F.3d 1141, 1145 (8th Cir. 1998); Catrone

v. Thoroughbred Racing Associations of North America, Inc.,

929 F.2d 881, 887-88 (1st Cir. 1991); Restatement (Second) of

Torts § 596 (1977), is probably also applicable, since Fulmer

and the NCAA have a common interest in NCAA members’ complying with the Association’s rules.

The existence of these privileges suggests that the

Association’s fears may be chimerical, and an additional

reason for thinking that is the strong incentive of members

to report their violations in order to take advantage of the

partial amnesty that the Association gives self-reporting

violators. (Granted, those incentives are diminished not

only by the threat of a defamation suit but also by the

fact that, the fewer whistleblowers there are, the less

likely violators of the NCAA’s rules are to be caught and

so the less incentive they have to turn themselves in.)

There is a further reason to doubt the NCAA’s need for

the protective order that it is seeking. The Department of

Education was not responsible for the subpoena in the

Fulmer case. The Department does not want to kill the

golden goose by promiscuously disclosing information it

receives from the NCAA and by doing so deterring the

reporting to the Association of violations of NCAA rules

that may also violate the laws that the Department en-
6 No. 06-3495

forces. Granted, the Department of Justice, directed by

the Inspectors General Act of 1978, 5 U.S.C. App. 3,

§ 6(e)(4), to promulgate guidelines for investigations by

inspectors general, requires them to notify the Attorney

General whenever they have reasonable grounds to

believes there’s been a violation of federal criminal law.

Attorney General Guidelines for Offices of Inspector

General with Statutory Enforcement Authority, § VII, at 4-5

(Dec. 8, 2003). But we have no authority to negate the

regulation by creating a new privilege.

To the extent permitted by the regulation, the internal

policies of the Department of Education seek to preserve

informants’ confidentiality. The NCAA argues that those

policies are negated by the Freedom of Information Act,

which, the Association contends, authorizes any member

of the general public (and not just the Department of

Justice, which like the Department of Education has an

incentive to protect the confidentiality of informants) to

get hold of documents in the possession of a government

agency that identify whistleblowers. The relevance of this

argument is unclear, because all the Association is seeking is an order limiting the Department’s right to turn over

the documents to others; until then, the documents are

in the Department’s possession and thus exposed to

demands for disclosure under FOIA.

In any event, FOIA does not require (though neither

does it forbid, Chrysler Corp. v. Brown, 441 U.S. 281, 290-94

(1979)) the government to disclose “records or information

compiled for law enforcement purposes, . . . to the extent

that the production of such law enforcement records or

information . . . could reasonably be expected to disclose

the identity of a confidential source, including a State,

local, or foreign agency or authority or any private institu-
No. 06-3495 7

tion which furnished information on a confidential basis.” 5

U.S.C. § 552(b)(7)(D) (emphasis added). (There is a further

exemption for “personnel and medical files and similar

files the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy,” § 552(b)(6),

and more extensive protection for the privacy of student

records under the Privacy Act of 1974, § 552a(a)(5). But

these provisions have no bearing on this case; the Department of Education is not seeking the kind of information

that they protect.)

The NCAA argues that the phrase in section 7(D) that

we have italicized will prevent the Department of Education from secreting the identity of sources of information

in the subpoenaed documents because the sources did

not furnish the information directly to the government on

a confidential basis. The argument is unpersuasive; it is

also contrary, one might have thought, to the NCAA’s

long-run interests. The part of the passage that we

quoted from section 7(D) that begins with “including”

implies only that a public or private institution that

furnishes information to the government and wants the

information kept confidential must so indicate; that is, it

must furnish the information to the government “on a

confidential basis.” To be meaningful, the “confidential

basis” must extend to the source of the institution’s information. Sands v. Murphy, 633 F.2d 968, 970-71 (1st Cir.

1980); Coleman v. FBI, 13 F. Supp. 2d 75, 81-83 (D.D.C.

1998); Kuehnert v. FBI, 620 F.2d 662, 667 and n. 11 (8th Cir.

1980); see also Ferguson v. FBI, 83 F.3d 41, 43 (2d Cir. 1996)

(per curiam); Church of Scientology v. United States Department of Justice, 612 F.2d 417, 426-27 (9th Cir. 1979). Who

would cooperate with police if told that the police department could shield its own identity if it turned over the
8 No. 06-3495

information furnished to it to the federal government but

not the informant’s identity? And why would a law enforcement agency or other public agency want to conceal

its own identity? Protecting that identity can’t be the

purpose of the “including” provision. The provision

would have no domain if it did not protect indirect informers.

Yet could it not be argued that a private organization

could never promise its informants confidentiality because the information could be subpoenaed from the

organization? But confidentiality is always a matter of

degree. An informant might wish the NCAA to conceal his

identity to the extent the Association could do so, while

realizing that there could be no absolute guarantee. Such

information would be furnished to the Association on a

confidential basis, and thus come within section 7(D)’s

exemption from compulsory disclosure. The Association

could remind any would-be informant that if he wanted

his identity concealed to the extent that the Association

could conceal it, he should make clear to the Association

that he is submitting his information on a confidential

basis.

However, in concluding that the NCAA has not made a

case for the protective order/quasi-privilege that it is

seeking, we do not rely, as the district judge did, on the

distinction between an “administrative” and a “judicial”

subpoena. Subpoenas ancillary to judicial proceedings are

issued by courts, while subpoenas ancillary to administrative proceedings are often issued by the administrative

agency directly. But that is not an interesting difference,

because in either case the individual or organization that

is subpoenaed can ask a court to quash the subpoena.

5 U.S.C. § 555(d); Fed. R. Civ. P. 45(3); Fed. R. Crim. P.
No. 06-3495 9

17(c)(2). There is a significant distinction toward which the

distinction between “administrative” and “judicial”

subpoenas may be gesturing, but it is the distinction

between subpoenas issued in a lawsuit or administrative

proceeding or targeted pre-enforcement investigation, on

the one hand, and subpoenas issued pursuant to the

broader investigative powers that some government

agencies, but not private entities, possess. That distinction,

however, cuts across the administrative/judicial divide.

For example, the EEOC’s “power to conduct an investigation can be exercised only after a specific charge has been

filed in writing. In this respect the Commission’s investigatory power is significantly narrower than that of the

Federal Trade Commission or of the Wage and Hour

Administrator, who are authorized to conduct investigations, inspect records, and issue subpoenas, whether or

not there has been any complaint of wrongdoing.” EEOC

v. Shell Oil Co., 466 U.S. 54, 63-65 (1984), quoting 110 Cong.

Rec. 7214 (1964); see also United States v. Morton Salt Co.,

338 U.S. 632, 641-43 (1950); Endicott Johnson Corp. v. Perkins,

317 U.S. 501, 509-10 (1943); FTC v. Ken Roberts Co., 276

F.3d 583, 585-87 (D.C. Cir. 2001).

The distinction thus relates to the substantive scope of

a subpoena, and so has no bite here because the Department of Education is operating well within the substantive scope of its investigative powers. See 5 U.S.C. App. 3

§§ 6(a)(2), (4). The issue in this case—whether the burden

of compliance with the subpoena (unless there is a protective order) exceeds the need for the information

sought in it—is remote from the distinction between

administrative and judicial subpoenas. That leads us to

wonder about the occasional judicial statements that an

administrative subpoena, unlike a judicial subpoena, can
10 No. 06-3495

be quashed only if compliance would be “excessively

burdensome so as to threaten the normal operation of the

party’s business.” Commodity Trend Service, Inc. v. CFTC,

223 F.3d 981, 987 (7th Cir. 2000); see also EEOC v. United

Air Lines, Inc., 287 F.3d 643, 651-54 (7th Cir. 2002); NLRB

v. American Medical Response, Inc., 438 F.3d 188, 192-93 (2d

Cir. 2006). (Other cases do not distinguish between the

two types of subpoena, so far as assessing burden is

concerned. SEC v. Arthur Young & Co., 584 F.2d 1018, 1023-

24, 1032-33 (D.C. Cir. 1978); cf. EEOC v. Sidley Austin Brown

& Wood, 315 F.3d 696, 700 (7th Cir. 2002).) It is true that

the stakes in many government cases exceed those in most

private cases. If the government is prosecuting a major

criminal, information that it has subpoenaed for aid in the

prosecution is likely to confer a greater public benefit

than information sought in a run-of-the-mill tort case, and

if so the target of the subpoena will have to demonstrate

a greater burden of compliance in order to get it quashed.

But this difference cuts across the distinction between

administrative and judicial subpoenas. A prosecution is not

an administrative proceeding; the subpoena is judicial.

Even restating the distinction as one between public and

private cases is unsatisfactory, since many private cases

involve greater stakes than many public. In this case, in any

event, the burden of compliance with the subpoena,

even without a protective order to cushion the effect of

compliance, is speculative and is outweighed by the

investigatory needs of the Department of Education.

AFFIRMED.
No. 06-3495 11

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-21-07