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25 Vt. L. Rev. 793 (2000-2001)
The Totten Doctrine and Its Poisoned Progeny

handle is hein.journals/vlr25 and id is 805 raw text is: THE TOTTEN DOCTRINE AND ITS POISONED PROGENY INTRODUCTION Essential to the American system of jurisprudence is the ability of all litigants to conduct complete discovery and obtain all pertinent information needed to present a worthy case or defense.' Additionally, the United States Constitution guarantees that all Americans shall not be deprived of life, liberty or property without due process of law. These fundamental principles have, for the most part, gone unchallenged. During the past 125 years, however, a legal doctrine has emerged that impermissibly inhibits a plaintiff's ability to bring suit vhen the subject matter of the action involves state secrets. A Civil War era United States Supreme Court decision, Totten Administrator v. United States, originally stood for the proposition that the courts of the United States lacked jurisdiction to hear complaints against the United States brought by parties who alleged that they entered into contracts for secret services with the national government.3 However, over the last century the Totten doctrine and its distantrelative, the state secrets privilege, have expanded both in scope and application to frightening levels.4 While courts invoked the Totten doctrine only six times between 1875 and 1951,5 since 1951 it has been cited more than sixty-five times.6 The principle for which Totten stands is no 1. See generally FED. R. Civ. P. 26-37; Frank Asldn, Secret Justice and the Adversary System, 18 HASTINGS CONsr. L.Q. 745 (1991). 2. U.S. CONST. amend. XIV, § I. 3. Totten Adm'r v. United States, 92 U.S. 105 (1875); Maj. Kelly D. Wheaton, Spycraf and Government Contracts: a Defense ofTotten v. United States, ARMY LAW., Aug. 1997, at 9. 4. Although the state secrets privilege was invoked only five times between 1951 and 1970, it has been invoked more than fifty times since 1971. Additionally, while in 1953 electronic equipment was included as a state secret, recently such things as the FBI file of a sixth grader and the inspection records of a government vehicle have qualified as secret. I Steven Gardner, The State SecretPrivilegelnvoked in Civil Litigation: A Proposal for Statutory Retie 29 WAKE FORES L REv. 567,58485 (1994). 5. See, eg., De Amaud v. United States, 151 U.S. 483 (1894); Pollen v. Ford Instrument Co., 26 F. Supp. 583, 585 (E.D.N.Y. 1939); Firth Sterling Steel v. Bethlehem Steel Co., 199 F.2d 353, 355 (F.D. Pa. 1912); Krumin v. Bruknes, 255 Ill. App. 503,507 (1930); Moon v. Hines, 87 So. 603,605 (Ala. 1921); Felt v. Bell, 68 N.E. 794,799 (111. 1903). 6. See, eg., Webster v. Doe, 486 U.S. 592,606 (1988); Dep't ofNavy v. Egan, 484 U.S. 519, 527 (1988); Weinbergerv. CatholicActionofHaw.Peace Educ. Project,454 U.S. 139,147 (1981); Jencks v. United States, 353 U.S. 657, 670 (1957); United States v. Reynolds, 345 U.S. 1 (1953); Air-Sea Forwarders, Inc. v. United States, 166 F.3d 1170,1171 (Fed. Cir 1999); Korczakv. United States, 124 F.3d 227 (Fed. Cir. 1997); Carew v. Office of Personnel Mgmt., 878 F.2d 366,368 (Fed Cir. 1989); Guong v. United States, 860 F.2d 1063, 1064 (Fed. Cir. 1988); In re Sealed Case, 121 F.2d 729, 736 (D.C. Cir. 1997); In reUnited States, 872 F.2d 472,480 (D.C. Cir. 1989); Ellsberg v. Mitchell,709 F.2d 51,65 (D.C. Cir. 1983); Salisbury v. United States, 690 F.2d 966,977 (D.C. Cir. 1982); Halkin v. Helms, 598 F.2d 1, 14 (D.C. Cir. 1978); Zweibon v. Mitchell, 516 F.2d 594,609 (D.C. Cir. 1975); Nixon v. Sirica, 487 F.2d 700, 714 (D.C. Cir. 1973); Soucie v. David, 448 F.2d 1067,1079 (D.C. Cir. 1971); Greene v. McElroy, 254 F.2d 944, 951 (D.C. Cir. 1958); Mullen v. United States, 263 F.2d 275, 278 (D.C. Cir. 1958); Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544,548 (2d Cir. 1991); Hudson River Sloop Clearwater Inc. v. Dep'tofNavy, 891 F.2d 414,417 (2d Cir. 1989); Cliftv. United States, 597 F.2d 826, 828 (2d Cir.

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