(concurring
in part and dissenting in part).
The Black Panther Party and its co-plaintiffs seek $100 million in compensatory and punitive damages from a number of former and present United States officials and employees who, beginning in 1967, allegedly participated in a covert action program (code named COINTELPRO) designed to destroy the Black Panther Party. COINTELPRO was started in the wake of the “long hot summer of 1967,” when internal violence in the United States reached epidemic proportions and law enforcement agencies and national guard units throughout the nation were severely taxed to combat mass violence, arson, wholesale looting and constant threats to law and order — particularly in the large cities. At that time the Director of the Federal Bureau of Investigation labelled the Black Panther Party “the greatest threat” to the internal security of the United States. S.Rep.No. 755, 94th Cong., 2d Sess., Book III, 187 (1976).
Following an investigation, by a Select Committee, Senator Church, Chairman, the Committee Report in 1976 revealed the details of several COINTELPRO programs, including one that was directed at the Black Panther Party and that allegedly violated the constitutional rights of the Party and its members. Id. at 187-223. The report does not constitute evidence.
Following the release of the Committee Report, this lawsuit was started on December 1, 1976.1 Since that date, the parties have engaged in a series of extensive discovery efforts that have brought the case to *1281its present procedural status as described in Judge Wright’s opinion. In sum, the discovery efforts on both sides have been continuing for over three years and the end is not yet in sight. Neither is full disclosure. The district court was understandably concerned about accelerating the speed of full discovery in this case, but I agree with the majority that dismissal, at the present stage of the case, was too harsh a sanction for the Party’s initial refusal to comply with the discovery orders. I thus concur in the remand and the court’s order, but only to the extent that it directs both sides to answer interrogatories immediately. I dissent from the half-hearted approval of the Party’s refusal to supply certain critical information and from any implication that the district court may not now order all past officers of the Black Panther Party to answer all interrogatories to the full extent of their knowledge.2 Thus, while I concur in the remand, I would not permit further delay in discovery on the grounds claimed by the Party.
1. REQUIRING PARTY OFFICERS TO RESPOND INDIVIDUALLY
My principal disagreement with the majority opinion is over its decision that past and present individual Party officers can not now be ordered to respond to interrogatories, particularly about acts in which they might have personally participated and have personal knowledge. In my judgment the district court did not abuse its discretion when it ordered these individuals to respond under oath to certain interrogatories — particularly those that the designated representative of the Party had refused to fairly or fully answer on the grounds that she lacked the information, that she did not know where the information could be obtained, that she was not aware of any such information, that she did not know of any documents containing the requested information, or that the information had been lost or destroyed.3
In my view the district court has an inherent power to supervise the discovery process and need not justify every exercise of its supervisory power by resort to some specific provision of the Federal Rules of Civil Procedure. The question instead should be whether the court acted reasonably under the circumstances and not contrary to some specific provision of the Rules.4 The district court here, in ordering Party officers to answer defendants’ interrogatories individually after the Party’s representative submitted woefully inadequate responses, acted well within its discretion, and in accordance with the Federal Rules.
*1282The majority is correct in stating that Rule 33 entitles an associational litigant at a certain stage to select an agent to prepare responses to interrogatories. To the extent Rule 33 confers this right, however, it is a right only against the adverse party, not against the court. That is, even if the opposing party may not insist upon responses from specific officers or agents, Holland v. Minneapolis Honeywell Regulator Co., 28 F.R.D. 595 (D.D.C.1961), the court, under the appropriate circumstances, may so order.
Rule 37(a) provides that if a party fails to answer an interrogatory submitted under Rule 33, the party seeking discovery may move for an order compelling an answer. The rule does not limit what the order may provide. The common sense of the matter is that if the designated representative of a litigating party proves unable to produce information from the association’s officers and records, the court’s order may compel officers, or other knowledgable individuals, to answer individually, if the circumstances warrant.
In my view the majority errs when it maintains, Maj. op. at 1254-1255, that the district court has power to order individual responses, if at all, only under Rule 37(b). Subsection (b) of Rule 37 has nothing to do with the district court’s power to compel an answer. Rule 37(b) specifies the sanctions available to the court if a Rule 37(a) order compelling an answer is disobeyed. It is with regard to sanctions that Rule 37(b) recognizes the district court’s power to “make such orders as are just.” Cf. Maj. op. at 1258 n.99. Requiring responses from designated individuals is not a sanction; it is simply one means of effectuating an order to compel answers. It is subsection (a) of Rule 37 rather than subsection (b) that speaks to orders compelling answers, and it does not restrict the district court’s discretion in placing such conditions in its order to compel an answer as will make that order effective. That includes the direction that association officers answer the interrogatories individually. Rule 33(a), as noted, does not restrict the district court’s discretion in that regard, either, for Rule 33(a) gives the association the right to select its representative only at the outset, against the attempt of the opposing party to insist on making that selection initially. If the court properly finds that the first set of responses were inadequate, and further properly finds that individual responses are necessary to remedy the deficiency, a Rule 37(a) order to compel individual responses to interrogatories is perfectly valid.
It remains, then, to inquire into the specific circumstances that led the district court to compel individual responses in this case. First, it is obvious from the record and the responses that were made to the defendant’s initial interrogatories by Joan Kelley, the Party’s designated surrogate for that purpose, that she was unable to furnish much of the information called for by the interrogatories. She did not have first hand knowledge of much of the information concerning the Party that she was requested and selected to furnish. She did not join the Party until 1969, after it had allegedly engaged in 1967 in many of the violent acts of the kind which caused the formation of COINTELPRO, and she did not become a member of the Party’s Central Committee until 1971 (JA 730-732). The inadequacy of Kelley as a surrogate for the Party was also made plain by her disingenuous responses to some of the critical interrogatories inquiring about illegal acts: she responded that the Party has no record of any such activity. See Responses to Interrogatories 79, 80, 88, 89,91,101,102,103,104 in the Appendix to this opinion. Law breakers rarely go out of their way to document their crimes, but Party officers and others in authority undoubtedly have firsthand knowledge of such acts, if they did take place. As the district court noted, records were scarce, much time had elapsed since the alleged occurrences, witnesses were scattered, and “defendants [were] forced to rely on memories.” App. 852. Moreover, Kelley reported that some people she contacted in preparing her responses would not “talk about their former connection with the Party.” App. 731.
An explanation for this reticence may be found in the testimony of Party co-founder *1283and officer Huey Newton (also a plaintiff herein), who revealed that “when any conversation transpires between a Party member and myself it’s already understood that nothing will be told unless I give instruction.” App. 815. Newton also testified that it is against Party policy to disclose the whereabouts of a Party member accused of a crime. Id. In light of all these circumstances it is clear that the district court reasonably determined that the full factual disclosure contemplated by the rules of discovery would come about expeditiously only if all the former Party officers and authorized representatives were required to respond individually to the specified interrogatories. See generally Fed.R.Civ.P. 1 (“These rules . .. shall be construed to secure the just, speedy, and inexpensive determination of every action.”)
II. THE CLAIM OF FIRST AMENDMENT PRIVILEGE AS TO INFORMATION CONCERNING UNDISCLOSED PARTY OFFICERS AND AUTHORIZED SPOKESMEN
I also dissent to the extent that the majority holds that the district court violated the Party’s First Amendment privileges in ordering disclosure of the names of all undisclosed Party officers and local party leaders. I agree that the names of ordinary members need not be disclosed, absent a showing of a special need with respect to the knowledge of particular individuals, but Party officers and authorized spokesmen are in a different category. As to these undisclosed individuals, the defendants’ need for the information in their possession outweighs the Party’s claim of constitutional privilege. The district court balanced the appropriate factors, albeit not as explicitly as some might desire, and arrived at the correct result. Its order to compel responses was in this respect valid, even if dismissal was too severe a sanction for flouting it.
As the majority relates, determining whether discovery can be compelled over a claim of constitutional privilege requires an assessment of the substantiality of the claim of privilege, the relevance of the information sought, and the availability of alternative sources. I question, at the outset, whether the district court’s order compelling discovery should not be upheld simply on the basis that the Party failed to make a substantial showing of privilege. In fact, the Party made no showing at all. It “claims that [its associational] freedoms [under the First Amendment] might be endangered if the names of its leaders ... not known to the public are disclosed,” Maj. op. at note 153, and “alleges that its members have been harassed before, and suggests this harassment may continue.” Id. (emphasis added). Of course, if they are breaking the law, some legitimate acts of law enforcement that they characterize as “harassment” may be justified. Yet, despite its opportunities to do so, the Party has made no evidentiary showing to rebut the defendants’ explanation that investigation of the Party ceased years ago. This case is thus a far cry from NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), in which an “uncontroverted showing” of past reprisals against persons disclosed to be affiliated with the NAACP permitted the Supreme Court to conclude that compelled disclosure of the NAACP’s membership in Alabama would have unwarranted adverse consequences for the individuals involved. Id. at 462-63, 78 S.Ct. at 1171-1172.
NAACP v. Alabama is also distinguishable on other grounds. Justice Harlan’s opinion upheld the First Amendment right of the NAACP to refuse to disclose the names of its general rank and file members in Alabama to state authorities who were resisting the civil rights campaign by the NAACP in that state. And the civil rights campaign was legal. What is critical in the Alabama decision to this case is that while the NAACP withheld the names, it furnished the “total number” of its ordinary members in Alabama. It also furnished “the names of all its directors and officers.” 357 U.S. 465, 78 S.Ct. at 1173. NAACP is thus not authority for the Black Panthers withholding names of the Party’s officers and authorized spokesmen.
*1284Moreover, the names of the NAACP’s ordinary members had little or no relevance to the lawsuit brought by Alabama against the NAACP; that suit was brought merely because the NAACP had failed to register as a foreign corporation. The NAACP furnished evidence of its finances in the state and admitted that it had many members in the state. Discovering the names of the ordinary members would not have added to the; proof that the NAACP was doing business in the state. Justice Harlan’s opinion, in distinguishing the case of Bryant v. Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184 (1928), implicitly acknowledged that the names of persons in an organization may sometimes be highly relevant to a lawsuit. In Zimmerman the Supreme Court upheld a New York statute that required the Ku Klux Klan in that state to produce its “roster of membership and list of officers for the current year.” The New York statute applied to unincorporated associations that required an oath as a condition of membership. In NAACP, the Court distinguished Zimmerman, indicating that the New York statute was evidently meant to regulate an organization notorious for its “acts of unlawful intimidation and violence” (emphasis added), whereas the discovery of names sought by the state under the Alabama-statute at issue in NAACP would infringe deeply upon the right of NAACP members freely to “pursue their lawful private interests.” 357 U.S. at 465, 466, 78 S.Ct. at 1173 (emphasis added).
According to the allegations, this case is much closer to Zimmerman than to NAACP. Plaintiffs’ pleadings contend that the Black Panther Party was at all times practically an eleemosynary organization devoted to good works among the poor and needy and was greatly wronged by the acts of defendants. On the other hand, the defendants, judging from their interrogatories and statutory responsibilities, are contending that the Black Panther Party, during the years in question, was engaged, among other crimes, in a conspiracy to cause civil disorder in violation of 18 U.S.C. § 231(a), 18 U.S.C. § 371, by unlawful intimidation, force, violence, terrorist activities and inducements to kidnapping, murder and interference with law enforcement officers in the lawful performance of their official duties. For example, see Interrogatories 80 (storing guns and military equipment); 81 (encouraging mutiny in armed forces and killing of Army officers); 89 (killing police officers); 91 (killing president and ex-president); 101 (acquiring and stealing dynamite, bombing of public buildings, etc.); 102 (using explosives); 103 (hijacking airplanes); 104 (ambushing police officers). These and other interrogatories indicate it is part of the defendants’ defense that, in accordance with their statutory duties to enforce federal laws and to prevent crimes against the United States, they were engaged in a legitimate effort to investigate the Black Panther Party to discover those violating the laws of the United States, to destroy the unlawful conspiracy, and to prevent such illegal activities in the future.5
Plaintiffs also contend that Carey v. Hume, 492 F.2d 631 (D.C.Cir.), petition for cert. dismissed, 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974), supports their claim of a First Amendment privilege to withhold the names of secret officers and spokesmen. However, as we noted in International Union v. National Right to Work, 590 F.2d 1139 (D.C.Cir.1978), our ruling in Carey v. Hume recognized that the First Amendment interests implicated by compelled disclosure of the confidential source of a newsman may sometimes be outweighed by a civil litigant’s need for information in a lawsuit. The Party’s First Amendment claim is similarly outweighed here.
The preconditions for compelling disclosure established in Carey were simply that the party seeking disclosure has made reasonable attempts to obtain the information elsewhere, and that the information sought goes to the heart of the lawsuit, 492 F.2d at 636-39 and cases cited. These require*1285ments have been satisfied here. The attempts to obtain the information from the Party itself were unavailing, justifying direct recourse to the Party’s officers and authorized spokesmen. It is also clear that the interrogatories seek information that is critical to defendants’ apparent contention that their conduct was justified by the nature of the Black Panther Party as an unlawful conspiracy engaged in numerous violations of federal law. At this late stage in the pre-trial proceedings, since the vital information concerning the Party’s activities has been withheld or claimed to be unavailable, the time is ripe to require the Party’s officers and authorized spokesmen, including those not publicly known, to respond to defendant’s interrogatories. In fact, the officers and authorized spokesmen who have not been publicly disclosed might well be the persons best able to reveal the facts of the operation of the alleged conspiracy.
Nor does our Right to Work decision, supra, support the Party’s insistence on secrecy. In that case we held that the district court had acted prematurely in ordering the Right to Work Foundation to disclose the names of its contributors, but the identity of the companies whose officers or employees were members of the Foundation’s Right to Work Advisory Council had already been publicly disclosed. 590 F.2d at 1145. Those council members are the equivalent of the officers and spokesmen of the Black Panther Party. Right to Work thus recognized no First Amendment right in concealing the identity of an organization’s officers and spokesmen. Moreover, we recognized in Right to Work that
At some‘point, the additional burden on a litigant in seeking out alternative sources of discovery may justify compelling disclosure of essential information from one asserting a constitutional privilege.
Id. at 1153. The government’s evident prejudice from yet further delay justifies disclosure now. Thus, in my view, Right to Work, far from justifying continuing concealment, is additional authority for compelled disclosure.
The Black Panther Party filed a further response on October 2,1979, to 107 interrogatories as ordered by the Court on August 6,1979. However, the Party still continued to claim that it had a First Amendment privilege to refuse to disclose the identities of certain Central Committee members, local leaders and certain individual party members who were not already publicly known. The Party stated its position as follows:
The Party, and its officers, continue to object to the disclosure of information for which the Party has claimed a First Amendment privilege. Specifically, the Party continues to refuse to disclose the identities of Central Committee members whose names have not been previously disclosed (interrogatory 21); the identities of local leaders of the Party’s affiliates (interrogatory 33); and the names of individual party members not already publicly known which were deleted from the weekly reports from Party affiliates which were provided to defendants (interrogatory 61).
(JA at 874). As stated above the plaintiffs have no First Amendment privilege to refuse to disclose the identity of Central Committee members or local leaders. Whether the privilege extends to individual party members will depend on the prominence of the Party member, his authority and upon his Party activities. There is no general right to compel responses from “individual party members,” but if a showing were made that individual members were in possession of relevant knowledge they could be compelled to answer interrogatories or to testify by deposition. It must not be forgotten that the suit is brought for the members in the name of their Party.
III. THE CLAIM OF A FIFTH AMENDMENT SELF-INCRIMINATION PRIVILEGE BY PLAINTIFF HUEY P. NEWTON
Plaintiff Huey P. Newton was co-founder of the Black Panther Party. Throughout the early violent period in the Party’s activities he exercised a controlling position in the activities of the Party and its members, *1286and, according to his testimony, controlled the disclosure of information concerning the Party, even if it concerned a crime.6
On August 6, 1979 the district court ordered Newton to answer 37 interrogatories over his claim that the answers thereto would implicate his Fifth Amendment privilege against self-incrimination. (JA 856-57.)7 He still claims this privilege with respect to 30 interrogatories. (JA 991.)8 For the future, it should be noted that Newton as an official of the Black Panther Party cannot assert his personal privilege to resist production of documents of the association in his custody which might incriminate him personally. United States v. White, 322 U.S. 694, 699-700, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944); Wilson v. United States, 221 U.S. 361, 384-385, 31 S.Ct. 538, 545-546, 55 L.Ed. 771 (1911). Cf. George Campbell Painting Corp. v. Reid, 392 U.S. 286, 88 S.Ct. 1978, 20 L.Ed.2d 1094 (1968). Thus Newton might not be able to claim any personal privilege with respect to those interrogatories that call for the production of association documents. See Interrogatories Nos. 91, 92, 99, 101, 102, 103, 104.
In a great many instances, where the testimony is relevant, courts at the pretrial discovery stage have dismissed civil lawsuits with prejudice when a plaintiff claims the Fifth Amendment9 privilege against self-incrimination and thereby denies the civil defendant use of the incriminating testimony. The rationale relied upon by the courts in such cases has not been uniform. In Lyons v. Johnson, 415 F.2d 540 (9th Cir. 1979) the court after several preliminary comments ruled that in any event the Fifth Amendment could not be used to block all discovery. The court in Tomko v. Lees, 24 Fed.R.Serv.2d 407 (W.D.Pa.1977) denied a claim of self-incrimination by a plaintiff who sued police under 42 U.S.C. § 1985 for a threat to arrest him unless he turned informer and then sought the Fifth Amendment privilege against testifying to his involvement in the criminal activity for which arrest was threatened. The court refused to permit such claim, noting
It would be uneven justice to permit plaintiffs to invoke the [court’s] powers [to seek redress] and, at the same time, permit plaintiffs to fend off questions, the answers to which may constitute a valid defense or materially aid the defense.
(quoting Independent Productions Corp. v. Loew’s, Inc., 22 F.R.D. at 276). In an earlier case in the Eastern District of Pennsylvania involving a claim of privilege against self-incrimination the court cited Lyons v. *1287Johnson, supra, and reasoned that since the plaintiff was a voluntary litigant he could not refuse to answer 50 questions. Penn Communications Specialties, Inc. v. Hess, 65 F.R.D. 510, 511 (E.D.Pa.1975). Judge Neville’s decision in Brown v. Ames, 346 F.Supp. 1176-1178 (D.Minn.1972) was also relied upon. That was a false arrest suit by plaintiffs who refused to answer any deposition questions relating to any conversations or conduct on the day of the arrest. Finding that the answers to the questions could lead to the discovery of relevant evidence of probable cause to make the arrests, the court ruled that the plaintiffs must testify or suffer their action to be dismissed. It is the prejudice to the defendant that overrides the privilege.
An antitrust action in the Southern District of New York reached the same conclusion. Therein the court ruled that since the witness was the sole stockholder and prime mover of the corporation plaintiffs, his refusal to testify about his Communist Party connections, which testimony was relevant and material to the specific defense of the defendant, amounted to a refusal by the plaintiff corporation and constituted a waiver of its privilege to bring the action. Independent Productions, Inc. v. Loew’s, Inc., 22 F.R.D. 266, 277-78 (S.D.N.Y.1958).
Several courts have also characterized their rulings as prohibiting a plaintiff from using the privilege against self-incrimination as both a sword and a shield:
Plain justice dictates the view that, regardless of plaintiff’s intention, plaintiffs must be deemed to have waived their assumed privilege by bringing this action. Moore, Federal Rules and Official Forms, 164 (1956).
* * * * sfe *
This view strikes home. Plaintiffs in this civil action have initiated the action and forced defendants into court. If plaintiffs had not brought the action, they would not have been called on to testify. Even now, plaintiffs need not testify if they discontinue the action. They have freedom and reasonable choice of action. They cannot use this asserted privilege as both a sword and a shield. Defendants ought not be denied a possible defense because plaintiffs seek to invoke an alleged privilege.
Id. at 276, 277, quoted in Bramble v. Kleindienst, 357 F.Supp. 1028 (D.Colo.1973).
The opinion in Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968) by Justice Nelson aptly poses the question and supplies the answer.
The question is rather whether plaintiff should be permitted to withhold information [under a claim of self-incrimination] which must relieve defendant of liability and at the same time be permitted to prosecute her claim. The risk that plaintiff might thereby succeed in an unmeritorious claim would seem to be so substantial that she must either divulge the information or abandon her claim.
162 N.W.2d at 202.
The New York Court of Appeals in Laverne v. Incorp. Village of Laurel Hollow, 18 N.Y.2d 635, 272 N.Y.S.2d 780, 219 N.E.2d 294 (1966), also relied upon this rationale.
The privilege against self-incrimination was intended to be used solely as a shield, and thus a plaintiff cannot use it as a sword to harass a defendant and to effectively thwart any attempt by defendant as a pretrial discovery proceeding to obtain information relevant to the cause of action alleged, and possible defenses thereto. (See, also, Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483; Hazlett v. Bullis, 12 A.D.2d 784, 209 N.Y.S.2d 601 [2 Dept 1961]).
Judge Doyle in the Western District of Wisconsin reasoned similarly in Kisting v. Westchester Fire Ins. Co., 290 F.Supp. 141-49 (W.D.Wis.1968). This was a civil action on a fire insurance policy where the insurance company alleged arson by the insured as an affirmative defense.
Plaintiff’s next contention is that the privilege against self-incrimination justifies Kisting’s refusal to answer the questions involved. Plaintiffs thus seek to utilize the privilege not only as a shield, but also as a sword. This they cannot do. *1288A plaintiff in a civil action who exercises his privilege against self-incrimination to refuse to answer questions pertinent to the issues involved will have his complaint dismissed upon timely motion. See Stockham v. Stockham, 168 So.2d 320, 4 A.L.R.3d 539 (Fla.1964); Lund v. Lund, 161 So.2d 873 (Fla.App.1964); Levine v. Bornstein, 13 Misc.2d 161, 174 N.Y.S.2d 574 (S.Ct., Kings Co. 1958); aff’d 7 A.D.2d 995, 183 N.Y.S.2d 868 (2d Dept.), aff’d 6 N.Y.2d 892, 190 N.Y.S.2d 702, 160 N.E.2d 921 (1959); Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 (1955); Annot., 4 A.L.R.3d 545. Cf. Zaczek v. Zaczek, 20 A.D.2d 902, 249 N.Y.S.2d 490 (2d Dept. 1964)
290 F.Supp. at 149.10
In an analogous situation the Supreme Court in a denaturalization proceeding ruled that when the subject of the action took the stand and testified in her own behalf she waived the right to invoke on cross examination the privilege against self-incrimination regarding matters made relevant by her testimony on direct examination. Brown v. United States, 356 U.S. 148, 154-56, 78 S.Ct. 622, 626-627, 2 L.Ed.2d 589 (1958).
Three recent cases discuss other factors. The Fifth Circuit in Wehling v. CBS, 608 F.2d 1084 (5th Cir. 1979), ruled that plaintiffs during discovery should have been allowed temporarily to claim the Fifth Amendment privilege without suffering immediate dismissal of their action. It based such decision on the conclusion that the dismissal was unwarranted absent an inquiry as to whether deferring the plaintiffs’ action would allow the applicable statutes of limitation to lapse without prejudice to the defendant. In Newton’s case, as explained elsewhere, further delay will prejudice defendants and expiration of the statutes of limitations might never occur. Even if the statute might run as to some offenses, the defendant’s absence from the relevant jurisdiction might have tolled the running of the statute for such a long period of time as to cause an unreasonable delay in obtaining vital evidence.
The second case is Campbell v. Gerrans, 592 F.2d 1054 (9th Cir. 1979) where a Fifth Amendment claim of privilege was upheld against “highly questionable” interrogatories which were considered to be harassing and as not going to the heart of the defense. The interrogatories here go to the very heart of the defendants’ defenses and do not constitute harassment.
Finally, the Sixth Circuit in United States v. U. S. Currency, 626 F.2d 11, 14—15 (6th Cir. 1980), suggested that the district court should consider three alternatives: (1) rely on alternative sources for the information that a litigant seeks to protect with his claim of Fifth Amendment privilege; (2) grant the litigant immunity as to his testimony; (3) stay the proceedings until criminal proceedings and statutes of limitation have run their course. It is not practicable in this case to apply any of these alternatives. Newton and the other officers have exclusive knowledge of some of the facts because they were involved personally. As to the second suggestion, it would be unthinkable to grant plaintiffs immunity from prosecution on the crimes alleged against them in the congressional hearings. See, H.Rep.No.92-470, 92d Cong., 1st Sess. (1971). The magnitude and number of the alleged offenses compel prosecution, not immunity, particularly with respect to Newton and he is the principal subject that we are considering here. It would be a gross miscarriage of the judicial process to permit an alleged criminal to obtain immunity from prosecution as a result of his bringing a civil suit for damages against the officials charged with his prosecution. Such law would breed many civil suits. And granting more limited immunity, considering the breadth of the alleged criminal activities, could lead to endless litigation.
As for allowing the statute of limitations to run, as suggested above, that would be of *1289doubtful practicality inasmuch as they do not run for crimes of murder and aiding and abetting murder, and these crimes may be involved. For example, see S.Rep.No. 94-755, Book III, 190 (1976). House Hearings, Committee on Internal Security, 91st Cong., 2d Sess, 217, 229 (1970). Also, the absence of a putative defendant from the jurisdiction tolls the running of the statute of limitations. The federal statutes of limitations do not run while one is a fugitive from justice. 18 U.S.C. § 3290.11 See Jhirad v. Ferrandina, 486 F.2d 442 (2d Cir. 1973). For state offenses, see 22 C.J.S. Criminal Law § 230. It is a matter of general public knowledge that Newton was outside the United States for a number of years. This would extend the expiration of the time fixed by the statute for a very considerable period of time and would cause a further loss of testimony for all the reasons that lapse of time causes an attrition in evidence, i. e., loss of memory, death, inability to locate witnesses, destruction and loss of documents, etc.
In sum, while filing a lawsuit may not automatically waive one’s privilege against self-incrimination, the plaintiff in a civil suit does not have an absolute privilege for all, time. In this case that time has passed since defendants would be greatly prejudiced by further delay in obtaining relevant testimony. The defendants have a constitutional due process right to all relevant testimony and that right must now be recognized. See generally Garner v. United States, 424 U.S. 648, 655, 96 S.Ct. 1178, 1182, 47 L.Ed.2d 370 (1976).
I thus respectfully dissent to the extent of the variation between the foregoing views and those expressed in Judge Wright’s opinion. The strength of that opinion is minimized by its failure to respond to the First and Fifth Amendment discussion set out above. In any event the eventual outcome of the discovery in this case must follow the principles set forth above if plaintiffs persist in their recalcitrant conduct.
APPENDIX
There follows a sampling of the interrogatories and responses that indicate the Party representative failed to answer adequately. The comments that follow the responses point out the inadequacies of the responses and indicate why the officers and authorized spokesmen of the Party should now be required to respond to each of these interrogatories. In my judgment, the comments are not altered by the subsequent responses that the Party made to some interrogatories.
Interrogatory 25:
Identify all officers and other persons who were or now are authorized to speak on behalf of the Black Panther Party. Response:
The scope of the interrogatory certainly makes it excessively burdensome and, therefore, objectionable. It is impossible for the Party to identify everyone who has been authorized to speak for the Party, an organization that has been in existence for twelve years, and had affiliates in over 40 cities throughout the United States at various times. Party members could have been authorized to speak on one or numerous occasions. At various times, numerous persons have been authorized to speak on a broad range of issues and policies; others only to a specific audience or group, in response to a specific request or need to do so. The Party has not maintained a listing of these persons. However, we can state, that members of the Central Committee are generally authorized to speak on behalf of the Party, although there have been exceptions to this proposition. The following is a representative listing of leading Party members and the approximate periods for which such an authorization existed:
a) Huey P. Newton .......1966 to the present
b) Bobby Seale...........1966 to 1974
c) Elaine Brown..........1971 to 1977
d) Ericka Huggins........1972 to the present
e) David DuBois..........1972 to the present
f) David Hilliard .........1969 to 1974
g) Eldridge Cleaver.......1967 to 1971
*1290This information is central to the defendants’ defense. The defendants presumably are defending their acts with respect to the Black Panther Party and they are clearly entitled to the names of all officers and other persons who were authorized to act and speak for the Black Panther Party. The party is responsible for their actions and if such are shown to be criminal the acts of the defendants may be fully justified. In this respect the defendants are entitled to information concerning the acts and authority of the various officers and members of the party, particularly so, because in a conspiracy the acts of co-conspirators within the scope of the conspiracy can be imputed to others in the conspiracy.
Interrogatory 30:
Describe in detail (he nature of the affiliation between the Black Panther Party of Oakland, California, and each affiliate identified in answer to interrogatory 26.
Response:
Each “affiliate” which was listed as a Black Panther Party office or center functioned as a local office of a single entity. Each affiliate provided those social services as needed by the Black and poor communities of the area in which it was located. These affiliates subscribed to the principles and theories of government outlined in the 10 Point Program and Platform of the Black Panther Party, the Party’s basic operating guide.
(App. 107).
This is another interrogatory that would have special reference to discovery of facts concerning the extent of a conspiracy. Each of the officers of the Party should be required to respond to this inquiry because the Party had far-flung operations that might be better testified to by the numerous Party officers and spokesmen throughout the country.
Interrogatory 32:
For each affiliate identified in answer to interrogatory 26, identify all present and former offices, posts and other positions of responsibility of the affiliate.
Response:
Each local affiliate had a local “central staff” which was composed of the members in the area who supervised and coordinated the activities and services of that area. See the response to Interrogatory 18 for more details in the central staff’s functions.
(App. 108).
This response is woefully inadequate. It fails to name names. The Party officers should be required to identify “present and former officers” to the extent of their ability-
interrogatory 33:
For each office, post and position of responsibility identified in answer to the preceding interrogatory, identify each person who has held or holds the office, post or position of responsibility and the dates of their respective terms of office.
Response:
Plaintiff objects that this request is unduly burdensome. A central file of such information does not exist and this information, to the extent that it is available at all, must be obtained from issues of the Black Panther Party newspaper which is publicly available. Reconstruction of such names for a period of ten years and for over forty cities is impossible from the records kept by plaintiff.
(App. 108). The Party officers were undoubtedly in possession of such information and to the extent that they still recall it they should be required to disclose it rather than permit the party to completely hide behind the claim that the question is “unduly burdensome.” It may also prove to be unduly incriminating and hence essential to the defense.
Interrogatory 46:
Identify all chapters which continued to function after the revocation of their chapter by the national organization and state whether such former chapters currently are functioning.
Response:
Plaintiff does not have information on this subject.
*1291(App. 115). The Party officers and spokesmen would undoubtedly have some of this information and to the extent that they still recall it they may be required to disclose it. Such information could produce invaluable leads to Party activities that are highly relevant to the defense.
Interrogatory 47:
For each affiliate identified in answer to interrogatory 41, state whether the property and business or other offices either now or formerly occupied by the affiliates was owned or leased by the national organization.
Response:
Plaintiff does not have records or information on these properties.
(App. 115).
The officers and spokesmen should have a recollection of this information. It would disclose material evidence as to the relationship between the Party and its affiliates for whose acts the Party must be held responsible.
Interrogatory 48:
For each affiliate’s property or office where the answer to the preceding interrogatory was negative, was the property owned or leased by Stronghold Consolidated Productions, Inc.?
Response:
See responses to Interrogatories 46 and 47.
(App. 115).
Some of the Party officers and spokesmen should recall whether the property was owned or leased by Stronghold Consolidated Functions, Inc. and they may be required to furnish this information.
Interrogatory 51:
Identify all documents which reflect criticism from the national organization to any Black Panther Party affiliate as a result of the affiliate’s lack of militancy, aggressiveness, or failure to confront police or other officials.
Response:
Plaintiff does not have knowledge of any such documents.
(App. 116).
Even if the plaintiff does not have knowledge of any such documents the question goes directly to the direction and control of the national organization and as to the type of organization that was being conducted. The officers who ran the Party and its spokesmen should have detailed information about this and they may be required to disclose it to the extent that it is within their knowledge.
Interrogatory 54:
Identify (by docket number, court, and parties) all civil and criminal actions (Federal and State) in which the Black Panther Party, its officers and members, or any Party affiliate was a party, other than actions involving marital, child support, or personal debt issues.
(App. 117). The party’s response was lengthy and is not repeated. It stated that this interrogatory was overly burdensome and that court records are as available to the defendants as to the plaintiffs. Claim was also made that the defendants had extensive records regarding criminal actions, and three actions were specifically referred to. However, as to any other information known to the Party officers and spokesmen, they may be required to disclose it. While the defendants might know about some criminal actions involving the Party, they may not know that some criminal prosecutions that have been brought involve members of the Black Panther Party — particularly since the Party has indicated that it has some secret officers and members. Undisclosed crimes then may extend beyond those that the government was able to discover previously. Consequently, to the extent that Party officers and authorized spokesmen have such information, they may be required to disclose it.
Interrogatory 58:
Describe in detail the purposes, aims, goals, and actions of The Emergency Conference to Defend the Right of the Black Panther Party to Exist held on or about March 7-8, 1970, in Chicago, Illinois.
*1292 Response:
Plaintiff has no knowledge or documents with regard to this Conference which was not held or sponsored by the Party.
(App. 119-120).
Since the Party has claimed it has “no knowledge or documents with regard to this conference” which was allegedly not held or sponsored by the Party, if any of the officers or spokesmen have any information in connection with it, they may be required to disclose it.
Interrogatory 59:
Identify all other Conferences, ad hoc organizations, programs, and conventions (by title, date, and location) with purposes, aims, goals, and actions similar to the Chicago conference referenced in the preceding interrogatory.
Response:
Plaintiff has no knowledge or documents with regard to such conferences, organizations, programs or conventions and none were held or sponsored by the Party.
Interrogatory 60:
Identify all documents distributed at or generated as a result of the Chicago conference and the conferences, ad hoc organizations, programs, and conventions identified in answer to the preceding interrogatory which discuss, mention, or in any way refer to nation-wide harrassment of repression against the Party. Response:
See responses to Interrogatories 58 and 59.
(App. 120).
Since the Party claims not to have any information concerning these matters it is proper to ask the Party officers and former spokesmen to respond to such interrogatories to the extent of their ability.
Interrogatory 67:
With regard to those documents identified in answer to interrogatories 62 and 63 which are not retained by the national office, identify which persons or organization (including affiliates) might have the documents.
Response:
Plaintiffs are not aware of any other organization or affiliate that might be in possession of these documents with the exception of the defendants.
(App. 122-123). Since the Party claims it is not able to furnish this information it is perfectly proper to ask those who controlled of the party and directed its operation to furnish such information as they may have in connection therewith.
Interrogatory 70:
Provide the present address of Bobby Seale.
Response:
Plaintiff does not have the present address of Bobby Seale.
(App. 123).
Since the plaintiff claims not to have, this information it is perfectly proper to make the Party officers respond to this inquiry. They well might know the present address of the named individual. A recent newspaper story reported he was in Seattle.
Interrogatory 72:
Did Party members ever give the Party, or its officers, a percentage of moneys and/or goods which had been taken without an exchange of consideration?
Response:
No.
(App. 124).
This interrogatory is aimed directly at Party “officers” and to transactions between them and the Party. It requests information that the officers are peculiarly equipped to supply if any exists. Each Party officer may be required to respond to this interrogatory.
Interrogatory 73:
Identify all documents which reflect the receipt of such a percentage by the Party or its officers, including but not limited to documents which either commend or criticize members in connection with the receipt of such a percentage or the failure to pay a percentage.
Response:
*1293There are no such documents.
(App. 124).
Same position as the comment to Interrogatory 72.
Interrogatory 75:
Were Party members or officers required by any formal or informal rule or encouraged to obtain, carry, and/or train with firearms?
Response:
Within the limits of the law and the Constitution, the right to bear arms and defend one’s home and property was not discouraged.
(App. 124).
The response of the plaintiff hedges its answer. To the extent that it existed Party officers and spokesmen would have individual knowledge of the information here requested and they should be required to state whether such activity was “required by any formal or informal rule or encouraged.” If it was encouraged, they would be the most likely ones to encourage such activity — hence they may have a peculiar ability to respond to this interrogatory.
Interrogatory 79:
For each year beginning in 1966, identify which offices of the Black Panther Party or its affiliates have had revolvers, rifles, machine guns, shotguns, other firearms, hand grenades, bazookas, M-79 grenade launchers, dynamite, and/or plastic explosives stored in that office. Response:
Plaintiff has no records or other means of identifying which offices or affiliates, if any, have had such materials stored.
(App. 125-126).
This reply is not responsive to the question. The interrogatory seeks information that was directly related to the activities of Party officers and they should be required to respond to the extent of their individual knowledge.
Interrogatory 80:
Identify (by make or type, model and, where appropriate, serial number) all revolvers, rifles, machine guns, shotguns, other firearms, hand grenades, bazookas, M-79 grenade launchers, dynamite and plastic explosives which have been stored at any time in an office of the Black Panther Party or any affiliate for each year beginning with 1966.
Response:
See response to Interrogatory 79.
(App. 126).
This reply is not responsive and the individual officers and spokesmen may be required to respond thereto. The question is directed at information that is material to determining the character of the organization being investigated and the knowledge of the officers of the activities of the organization is material and relevant.
Interrogatory 88:
In addition to the article appearing in the March 21, 1970 issue of “The Black Panther”, identify all documents originated by the Party, its officers, or any affiliate which reflect statements, suggestions, orders, or policy that American troops in Vietnam should kill their officers, General Abrams and/or his staff.
Response:
No such documents exist. If there was any statement on this general subject it would have appeared in the “Black Panther”. However, the article of March 21, 1970, and any other similar article, are rhetorical in the idiom of the Black and poor community and reflect the Party’s disagreement with the United States Government’s participation in the war in Vietnam.
(App. 128).
The Party’s claim that such statements were “rhetorical” is in effect an admission of their existence. Since this information is vital to determining the true character of the Party and inquires specifically as to any acts by “officers,” all officers may be required to personally respond to this interrogatory.
Interrogatory 89:
Identify all documents originated by the Party, its officers, or any affiliate which reflect statements, suggestions, orders, or policy that members or others should kill police officers.
*1294 Response:
No such documents exist. While defendants may believe that such documents exist, this again reflects defendants failure to understand that statements of the Party are frequently to be understood rhetorically and not literally.
(App. 128).
The claim that no such documents exist is implicitly contradicted by the statement that defendants do not understand rhetorical statements. Thus the Party officers who were directing the activities of the Party may be compelled to respond to the interrogatory.
Interrogatory 91:
In addition to the statement by Party Chief of Staff David Hilliard reported in the November 22, 1969 issue of “The Black Panther,” identify all documents originated by the Party, its officers, or any affiliate which reflect statements, suggéstions, orders, or policy that members or others should kill Richard Nixon, Lyndon Johnson, or other officials of government.
Response:
No such documents exist. The November 22, 1969 article and any similar comments are rhetorical indications of our disagreement with the repressive and illegal activities of such government officials. See responses for Interrogatories 88-90.
(App. 129).
Same comment as to Interrogatory 89. Interrogatory 101:
Identify all documents which discuss, refer to, plan, or in any way mention the following:
A) the theft of approximately 1000 pounds of dynamite from Quick Supply in Ankeny, Iowa on or about May 5, 1970;
B) the acquisition, storage, handling, or use of any dynamite, including but not limited to dynamite taken from Quick Supply or 2V2" by 16" dynamite, by members of the Omaha, Nebraska or Des Moines, Iowa Chapters or National Committees to Combat Facism;
C) the bombing of the Des Moines, Iowa Police Department on or about May 13, 1970;
D) the bombing of the Ames, Iowa Police Department on or about May 22, 1970;
E) the bombing of the Chamber of Commerce building in Des Moines, Iowa on or about June 13, 1970;
F) the burglary of , the Holm gun shop in Des Moines, Iowa on or about June 13, 1970;
G) the placement of an explosive boobytrap device beneath a freeway bridge in Des Moines, Iowa on or about June 21, 1970;
H) the bombing of the Drake University science hall in Des Moines, Iowa on or about June 29, 1970;
I) the bombing of the North Assembly police station in Omaha, Nebraska on or about June 11, 1970;
J) the bombing of Components Concept Corporation in Omaha, Nebraska on or about July 2, 1970;
K) the placement of a boobytrapped toolbox in Des Moines, Iowa on or about August 1, 1970; and/or
L) the killing, by way of boobytrapped suitcase, of police officer Larry Minard at 2867 Ohio Street in Omaha, Nebraska on or about August 17, 1970.
Response:
Plaintiff is not aware of any such documents.
(App. 133-134).
Since the awareness of the Party representative is somewhat limited, those with firsthand knowledge going back beyond her time with the Party may be required to respond. If such documents exist, many of the officers might have personally prepared them. The specificity of this interrogatory and Kelley’s statement that she is not “aware” of any such documents fully justifies requiring each Party officer to respond to this interrogatory.
Interrogatory 102:
Identify all documents which discuss, refer to, plan, or in any way mention the use of explosive devices by Party or Party affiliate members.
*1295 Response:
Plaintiff has no such documents which plan the use of explosive devices by the Party or affiliates. However, mention of such devices has been made from time to time in various articles printed in the “Black Panther” newspaper.
(App. 134-135).
The response that the plaintiff has no such documents is not a complete answer to the question or the request to “identify all documents.” Each officer and spokesman may be required to respond to this inquiry because of the importance of the information and because it well might have been that the officers prepared such documents in the first place and might have an excellent recollection thereof.
Interrogatory 103:
Identify all documents which discuss, refer to, plan, or in any way mention hijacking airplanes by Party or Party affiliate members.
Response:
Plaintiff has no such documents which plan hijacking airplanes by the Party or affiliates. However, mention of such activity has been made in articles which have appeared in the “Black Panther” newspaper.
(App. 135). The comment made as to Interrogatory 102 is equally applicable here.
Interrogatory 104:
Identify all documents which discuss, refer to, plan, or in any way mention ambushes of or gun battles with police or other law enforcement officers by Party or Party affiliate members.
Response:
Plaintiff has no such documents except for issues of the “Black Panther” which report on police or other government agency activities against the Party or affiliates.
(App. 135). Same comment as to Interrogatory 102, supra.
. An Amended Complaint was filed March 31, 1977. Attorney General Levi filed an Answer on June 21, 1977.
. Although the district court ordered only Party officers to respond individually, it would also be reasonable, in my view, to require individual responses from authorized Party spokesmen.
. See generally Appendix at end of this opinion.
. As the majority notes in response, the Federal Rules in some instances provide clearly delineated procedures addressed to particular matters in the discovery process. Maj. op. at note 103. It is true that with respect to these matters the Rule in question preempts any inherent authority and analysis of the court’s power to act depends exclusively on interpretation of the Rule. Societe Internationale v. Rogers, 357 U.S. 197, 207, 78 S.Ct. 1087, 1093, 2 L.Ed.2d 1255 (1958) (court’s authority to dismiss complaint for failure to comply with production order depends exclusively on interpretation of Rule 37(b)(2), which specifies the steps a district court may take if any party refuses to obey a production order). The rationale of Societe Internationale, however, is inapposite here, for, as explained in text, none of the rules cited by the majority speaks with any particularity to the court’s power to fashion an order compelling discovery. Independent Productions Corp. v. Loew’s Incorp., 283 F.2d 730, 732-33 (2d Cir. 1960), also involving Rule 37, is distinguishable for the same reason. Moreover, in Loew’s the Second Circuit held the district court ignored specific provisions of Rule 37(a) and (b) by dismissing the suit in advance of a failure to obey a Rule 37(a) order.
Obviously the district court lacks power to act contrary to the rules. What I maintain is simply that absent specific guidance the district court has power to act reasonably. This does not render the rules “superfluous”; it merely recognizes that in some areas the Rules do not provide specific guidance and that in these areas the district court has power to advance the Rules’ general policies favoring fairness and expedition.
. Defendants have not specified the crimes they were investigating. 18 U.S.C. § 231(a) and § 371 seem obviously involved, however, from the information sought by the interrogatories.
. The Government Statement to Compel Responses to Interrogatories (JA 775-816) recites a portion of Newton’s testimony as follows:
[I]t has been a Party policy since 1966 that ‘... when any conversation transpires between a Party member and myself its already understood that nothing will be told unless I give instruction,’ even if it concerns a crime.9 [Transcript, page 146.]
9 Newton also testified it is against Party policy to reveal the whereabouts of a Party member accused of a crime. [Transcript, page 82.] This testimony concerned Robert Heard, one of the ‘publicly-disclosed’ members of the Central Committee and a prospective witness, who also is a fugitive. His status as a fugitive and the existence of the Party’s policy obviously makes fruitless [the] suggestion that defendants should attempt to interview such members before receiving further answers.
(JA 815 & n.9).
. The designated interrogatories were: 11-15, 17 — 41, 43-45, 49, 51, 64, 74. (JA 857).
. Interrogatories 17, 21, 26, 37, 51, 64 and 74 have been answered (JA 991).
. The Fifth Amendment provides “no person . .. shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law....” The privilege has been held to extend to civil proceedings. McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924) (examination of a petitioner in bankruptcy); and to a non-criminal disciplinary hearing of a prison inmate. Baxter v. Palmigiano, 425 U.S. 308, 316, 96 S.Ct. 1551, 1557, 48 L.Ed.2d 1 (1976). However, the privilege may be found in effect to have been waived where the party answers some preliminary questions but desires to stop at a certain point. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951); United States v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376 (1943).
. Foss v. Gerstein, 58 F.R.D. 627 (S.D.Fla. 1973); and Alioto v. Holtzman, 320 F.Supp. 256 (E.D.Wis.1970), which are frequently cited as being contra, are substantially distinguishable on their facts.
. 18 U.S.C. § 3290 provides: “No statute of limitations shall extend to any person fleeing from justice.”