Appeal order 5, Demjanjuk John



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).


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

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.


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

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.

Newsgroups: alt.revisionism
Subject: Demjanjuk Case – U.S. Court of Appeals (5 of 17)
Followup-To: alt.revisionism
Organization: The Nizkor Project
Keywords: Sobibor,Treblinka,Demjanjuk

Last-modified: 1996/03/07