940 S.W.2d 457 (1997)
327 Ark. 600
Howard CHERRY, Appellant,
v.
TANDA, INC., and Transcontinental Insurance Company, Appellees.
No. 96-1229.
Supreme Court of Arkansas.
March 17, 1997.
*458 R. Theodor Stricker, Jonesboro, for appellant.
J. Scott Hardin, Fort Smith, for appellee.
IMBER, Justice.
Howard Cherry, as administrator of David H. Cherry's estate, appeals the dismissal of his wrongful death action against the decedent's former employer, Tanda, Inc., and the employer's insurance carrier, Transcontinental Insurance Co. We affirm.
On June 22, 1993, the City of Fort Smith ("City") entered into a contract with Tanda, Inc. ("Tanda"), for the construction of a sanitary landfill. As part of the contract, Tanda agreed to indemnify the City for all claims and damages for injuries or deaths arising out of the performance of the contract. In addition, Tanda agreed to carry general liability insurance which it subsequently obtained from Transcontinental Insurance Company ("Transcontinental").
On September 13, 1993, the walls of the excavation site collapsed causing the death of David H. Cherry. On November 30, 1996, Howard Cherry, as administrator of David Cherry's estate, filed in the Sebastian County Circuit Court a wrongful death action against Tanda and Transcontinental.
Tanda filed a Rule 12(b)(6) motion to dismiss in which it alleged that the exclusive remedy provision of the Workers' Compensation Act, Ark.Code Ann. § 11-9-105 (Supp. 1995), immunized Tanda from Cherry's tort action. Likewise, Transcontinental filed a motion for summary judgment in which it claimed that Tanda, not the City of Fort Smith, was the insured, and thus the estate could not maintain a direct action against the insurance carrier pursuant to Ark.Code Ann. § 23-79-210 (Repl. 1992). The trial court granted both motions and Cherry appeals.

I. Immunity of Employer From Suit Under the Exclusive Remedy Provision of Ark.Code Ann. § 11-9-105 (Supp.1995)
Cherry's first point on appeal is that the trial court erred when it dismissed Cherry's complaint against Tanda on the grounds of the "exclusive remedy" provision of Ark.Code Ann. § 11-9-105 (Supp.1995) of the Workers' Compensation Act. According to the Workers' Compensation Act, an employee's remedy against his or her employer for injuries sustained while on the job is to file a claim with the Workers' Compensation Commission. Specifically, the statute declares that:
The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer ... on account of the injury or death, and the negligent acts of a coemployee shall not be imputed to the employer. No role, capacity, or persona of *459 any employer ... other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter, and the rights and remedies provided by this chapter shall in fact be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have.
Ark.Code Ann. § 11-9-105(a) (Supp.1995) (emphasis added). Moreover, the employer's tort immunity under this provision extends to the employer's insurance carrier. Burkett v. PPG Indus., Inc., 294 Ark. 50, 740 S.W.2d 621 (1987).
Cherry attempts to circumvent the immunity created by Ark.Code Ann. § 11-9-105(a) by asserting that his lawsuit sounds in contract, and not tort, and thus is not barred by this statutory provision.

A. Third-Party Beneficiary to the Express Indemnity Agreement.
As mentioned above, Tanda contractually agreed to indemnify the City for any injuries or damages resulting from the construction of the landfill. The relevant contract provisions provide that:
6.30. To the fullest extent permitted by Laws and Regulations, CONTRACTOR [Tanda] shall indemnify and hold harmless OWNER [City of Fort Smith] and ENGINEER and their consultants, agents and employees from and against all claims, damages, losses and expenses, direct, indirect or consequential ... arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (a) is attributable to bodily injury, sickness, disease or death... and (b) is caused in whole or in part by any negligent act or omission of CONTRACTOR, and subcontractor, any persons or organization directly or indirectly employed by any of them to perform or furnish any of the Work ... regardless of whether or not it is caused in part by a party indemnified hereunder or arises by or is imposed by Law and Regulations regardless of the negligence of any such party.
6.31. In any and all claims against OWNER or ENGINEER ... by any employee of CONTRACTOR ... the indemnification obligation under paragraph 6.30 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for CONTRACTOR ... under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts.
For his first argument on appeal, Cherry alleges that he was a third-party beneficiary to this indemnity agreement, and thus, he may sue Tanda for enforcement of this contract without running afoul of Ark.Code Ann. § 11-9-105 (Supp.1995).
Tanda is correct that this court recognized in C & L Rural Elec. Coop. Corp. v. Kincaid, 221 Ark. 450, 256 S.W.2d 337 (1953), an exception to the exclusivity provision of the Workers' Compensation Act for the enforcement of indemnity contracts. In C & L, a contractor entered into an express indemnity agreement with the site owner before beginning construction. Id. During the performance of the contract, one of the contractor's employees was injured. Id. The employee received workers' compensation benefits from the employer/contractor and then sued the site owner for damages. Id. The site owner paid the injured employee, and then sued the contractor for reimbursement under the indemnification agreement. Id. The employer asserted that Ark. Code Ann. § 11-9-105 provided the exclusive remedy for both the employee and "anyone otherwise entitled to recover damages from the employer" which in this case was the site owner. Id.
This court rejected the employer's contention, and found that the exclusive remedy provision did not apply because "the present suit is one on an indemnity contract and not an action in tort." Id. Hence, according to C & L, an indemnitee may enforce an express indemnity agreement against an employer even though the employer has already paid the injured employee full workers' compensation benefits, and such is not a violation of the exclusivity provision contained in the Workers' Compensation Act. See also, Nabholz Const. Corp. v. Graham, 319 Ark. 396, 892 S.W.2d 456 (1995) (reaching the same *460 result without addressing the exclusivity provision).
Likewise, this court has expanded this "indemnity exception" to situations where the employer's indemnity obligation is implied by law, and not part of an express contract. Smith v. Paragould Light & Water Comm'n, 303 Ark. 109, 793 S.W.2d 341 (1990); Oaklawn Jockey Club, Inc. v. Pickens-Bond Const. Co., 251 Ark. 1100, 477 S.W.2d 477 (1972). In Oaklawn, this court found an implied indemnity contract existed between the site owner and the employer/contractor because the service contract implied a duty on the employer/contractor to perform the work with care and to indemnify the site owner for damages flowing from the breach of that obligation. Oaklawn, supra. Likewise, in Smith, this court held that a duty imposed on the city/employer by a statutory provision carried with it an implied promise that the city/employer would indemnify another who might be held liable for its failure to properly discharge that duty. Smith, supra.
Because this court found the existence of implied indemnity agreements in both Oaklawn and Smith, the indemnitees were permitted to sue the employers for reimbursement of damages they paid to the injured employees. As with express indemnity agreements, in both cases the court found that the indemnitees were suing on the indemnity contracts, and not in tort, and thus their claims were not barred by the exclusive remedy provision found at Ark.Code Ann. § 11-9-105 (Supp.1995).
Recently, however, this court declined to find the existence of an implied indemnity agreement in Mosley Mach. Co. v. Gray Supply Co., 310 Ark. 214, 833 S.W.2d 772 (1992). In Mosley, this court explained that an implied indemnity agreement will only arise when there is "a special relationship carrying with it the obligation to indemnify." Id. Moreover, this court held that in a sales contract, the implied duties or warranties do not run from the purchaser (employer) to the manufacturer, but from the manufacturer to the purchaser. Id. This court further found that in contrast to the services contract in Oaklawn, no such "special relationship" existed between parties to a mere sales contract, and thus there could be no implied obligation for indemnity. Id. Most importantly, because there was neither an implied nor an express indemnity agreement between the parties, the manufacturer's action for reimbursement for damages it paid to the employer's injured worker was a mere tort action and thus barred by the exclusivity provision of the Workers' Compensation Act. Id. This court explained that:
[w]hen the relation between the parties involves no contract or special relation capable of carrying with it an implied obligation to indemnify, the basic exclusiveness rule generally cannot be defeated by dressing the remedy itself in contractual clothes, such as indemnity.
Id. See also, Elk Corp. v. Builders Transport Inc., 862 F.2d 663 (8th Cir.1988) and Dulin v. Circle F. Industries, Inc., 558 F.2d 456 (8th Cir.1977) (refusing to find the existence of an implied indemnity agreement, thus the exclusivity provision of the Workers' Compensation Act precluded the shipper or manufacturer from seeking indemnity from the injured employee's employer); W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982) (refusing to hold an employer liable to a manufacturer or supplier upon a joint tortfeasor theory).
Regardless of whether the indemnity contract is express or implied, the common thread among these cases is that the indemnitee sued the employer/indemnitor for enforcement of the indemnity agreement. Cherry's argument is unique in that it asks this court to expand the "indemnity exception" to the exclusivity provision by allowing the injured employee, and not the indemnitee, to sue the employer for enforcement of the indemnity contract. Cherry alleges that he may do so as a third-party beneficiary to the express indemnity agreement between Tanda and the City.
Under Arkansas law, there is a presumption that parties contract only for themselves, and a contract will not be construed as having been made for the benefit of third parties unless it clearly appears that such was the intention of the parties. Little Rock Wastewater Util. v. Larry Moyer *461 Trucking, 321 Ark. 303, 902 S.W.2d 760 (1995). However, a contract is actionable by a third party when there is substantial evidence of a clear intention to benefit that third party. Id. It is not necessary that the person be named in the contract if he is a member of a class of persons sufficiently described or designated in the contract. Id.
Cherry asserts that he is a third-party beneficiary to the indemnity contract between Tanda and the City because the language clearly contemplates the payment of damages for injuries to the contractor's employees, such as himself. Whether there may be a third-party beneficiary to an indemnity contract is a matter of first impression for this court. As a general proposition, an indemnitor's obligation to reimburse against loss does not become due until after the indemnitee has paid damages to a third party. Larson Machine v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980). In other words:
A mere promise to indemnify against damages must also be distinguished. Here the promisor's liability does not arise until the promisee has suffered loss or expense. Until then the promisee has no right of action, and consequently one claiming damages can assert no derivative right against the promisor, much less a direct right. Nor can the promisee sue for the benefit of the persons claiming damages.
2 Samuel Williston & Walter H.E. Jager, A Treatise on the Law of Contracts § 403 (3d ed.1961). See also 4 Arthur Linton Corbin, Corbin on Contracts § 821 (1951).
Tanda's liability under its indemnity contract with the City does not arise until the city sustains a loss or expense. Because a condition precedent to any action by the City against Tanda for recovery under the indemnity contract is the City's payment of damages to a third-party claimant, such as Cherry, it follows that the City's payment of damages would also result in satisfaction of the claim by the third party. Under these circumstances, we hold that Cherry is merely an incidental, and not intended, third-party beneficiary to the indemnity contract. Therefore, as in Mosley, Bashlin, Dubin, and Elk, Cherry is suing Tanda in tort, and not on the indemnity contract, and accordingly the exclusivity provision bars his action. Clearly, as in Elk, supra, Cherry has attempted to dress his tort claim in "contractual clothes" such that he may circumvent the immunity provided to the employer by the exclusivity provision, Ark.Code Ann. § 11-9-105 (Supp.1995). Thus, we must reaffirm as stated in C & L, that:
The employer should not be held liable indirectly in an amount that could not be recovered directly, for this would run counter to one of the fundamental purposes of the compensation law.
C & L, supra (citing Baltimore Transit Co. v. Maryland, 183 Md. 674, 39 A.2d 858 (1944)).

B. Direct action against Tanda as the City's insurer.
Next, Cherry attempts to avoid the exclusive remedy provision found at Ark. Code Ann. § 11-9-105 by claiming that Tanda was in fact the City's insurer such that he may maintain a direct action against Tanda as the insurer of an otherwise immune municipality.
According to Ark.Code Ann. § 21-9-301 (Repl.1996), cities, such as Fort Smith, and other political subdivisions of the state are immune from "suit for damages except to the extent that they may be covered by liability insurance." Although an immune entity is not required to carry insurance, if it does so then an injured party may sue the insurance carrier directly for the extent of the coverage. Ark.Code Ann. § 23-79-210 (Repl. 1992).
Based on these two statutes, Cherry argues that the City of Fort Smith obtained "insurance" by executing the agreement whereby Tanda agreed to indemnify the City and obtain insurance to cover this indemnity responsibility. The basic flaw in Cherry's argument is that the Arkansas Insurance Code specifically defines an insurer as "every person engaged as indemnitor, surety, or contractor in the business of entering into contracts of insurance." Ark.Code Ann. § 23-60-101 (Repl.1994) (emphasis added).
Tanda is "in the business" of construction, not insurance, and the indemnification agreement was a mere incidental obligation of its *462 contractual relationship with the City as a contractor. In other words, Tanda is not "in the business of entering into contracts of insurance" as required by the statute, and thus, Cherry cannot maintain a direct action under Ark.Code Ann. § 23-79-210 against Tanda as an insurer of an immune entity.
Moreover, the indemnity agreement was not an "insurance" agreement as provided by the statute which defines "insurance" as:
any agreement, contract or other transaction whereby one party, the "insurer", is obligated to confer benefit of pecuniary value upon another party, the "insured" of "beneficiary", dependent upon the happening of a fortuitous event in which the insured or beneficiary has, or is expected to have at the time of such happening, a material interest which will be adversely affected by the happening of such event.
Ark.Code Ann. § 23-60-102 (Repl.1994). In deciding whether a particular agreement fits this definition, this court has focused on the following three factors: 1) whether the plan is mandatory; 2) whether a profit motive exists in offering the plan; and 3) whether the plan is intended to be actuarially sound. Douglas v. Dynamic Enter. Inc., 315 Ark. 575, 869 S.W.2d 14 (1994); Waire v. Joseph, 308 Ark. 528, 825 S.W.2d 594 (1992).
In this case, Tanda was not receiving money in exchange for its promise to indemnify nor was the plan actuarially sound. In fact, the indemnity plan was a liability, not an asset to Tanda. Finally, in the construction contract, the City agrees to obtain its own liability and property insurance. Hence, it is clear that the parties never intended Tanda to be the "insurer" of the City. Under these circumstances, we decline to construe the indemnity agreement as an insurance contract, and thus Cherry is not entitled to maintain a direct action against Tanda as an "insurer" of the City.

C. Breach of a Contractual Duty of Care.
Next, Cherry asserts that it is suing Tanda for its implied contractual duty to supply a safe place to work. Specifically, Cherry alleges that several provisions of Tanda's construction contract with the City required that Tanda follow the relevant safety regulations and maintain appropriate safeguards. Thus, Cherry argues, it is entitled to sue Tanda for the alleged breach of these contractual obligations.
This argument is clearly contrary to the plain meaning of the exclusive remedy provision, which unequivocally states that
The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee....
Ark.Code Ann. § 11-9-105(a) (Supp.1995) (emphasis added). Whether Cherry couches his complaint against Tanda in terms of contract, or tort, his action is barred under the exclusive remedy provision. See Gullett v. Brown, 307 Ark. 385, 820 S.W.2d 457 (1991) (holding that the exclusive remedy provision barred the employee's suit against his employer for enforcement of an underinsured motorist insurance contract).

4. Waiver of the Exclusive Remedy Protection
For his final argument for reversal of the trial court's dismissal of his lawsuit against Tanda, Cherry argues that Tanda waived the protection of the exclusive remedy provision when it agreed to the following clause contained in the construction contract:
6.31 ... the indemnification obligation under paragraph 6.30 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for CONTRACTOR or any such Subcontractor or other person or organization under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts.
Cherry's argument here is erroneous because it simply misconstrues the common sense meaning of the contract. Clearly by this provision, Tanda agreed to indemnify the City beyond what it was required to pay an injured employee under the Workers' Compensation Act. In other words, this clause related to the amount of liability to the City, and not to an employee. In no way does this provision relate to or affect Tanda's obligations *463 to its employees. Hence, this argument also has no merit. Accordingly, we affirm the trial court's dismissal of Cherry's lawsuit against Tanda.

II. Direct Action Against the Employer's Insurance Carrier as the "Insurer" of the City.
Prior to this lawsuit, Cherry attempted to sue the City of Fort Smith for the wrongful death of David Cherry; however, the case was dismissed because the City of Fort Smith is immune from tort liability under Ark.Code Ann. § 21-9-301 (Repl.1996). Although it is not clear from the record, it appears that the City of Fort Smith did not obtain an insurance contract, and thus Cherry could not avoid the City's immunity by proceeding directly against the City's insurance carrier as provided by Ark.Code Ann. § 23-79-210 (Repl.1992).
Hence, Cherry sued Transcontinental which is the insurance carrier for Tanda, not the City. As mentioned previously, the trial court dismissed this action on summary judgment. On appeal, Cherry raises two arguments as to why it may proceed directly against Transcontinental. We find no merit to either argument.

A. The City's Immunity
First, Cherry argues that it may proceed against Transcontinental as a quasi-insurer of the City, which is clearly immune from suit under Ark.Code Ann. § 21-9-301 (Repl.1996). More specifically, Cherry argues that by virtue of the indemnity agreement between Tanda and the City, Transcontinental agreed to pay for the City's negligence.
This argument is clearly against the policy of the direct-action statute, and established caselaw. In Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996), we recently held that in order for the direct-action statute to apply the following elements must exist:
(1) the liability insurance must be carried by a nonprofit corporation;

(2) a person must suffer injury or damage on account of negligence or wrongful conduct; and
(3) the damage or injury must be on account of the negligence or wrongful conduct of "servants, agents, or employees" of the nonprofit corporation acting within the scope of their agency or employment.
(Emphasis added.) In this case, the Transcontinental insurance contract was "carried by" Tanda, not the immune City. Thus, Cherry fails to establish the first element of the statute.
Furthermore, rejection of Cherry's argument is consistent with a federal decision on virtually identical facts. As in this case, in Lacey v. Bekaert Steel Wire Corp., 799 F.2d 434 (8th Cir.1986), the Bekaert Steel Wire Corp. ("Bekaert") entered into a contract with the City of Van Buren, and pursuant to that contract Bekaert agreed to indemnify the City and to obtain an insurance contract which it subsequently obtained from CNA Insurance. Several years later, Rebecca Lacey was killed on the Bekaert property, and her estate sued the City, Bekaert, and CNA insurance. Id. The trial court found that the City was immune from liability and dismissed Lacey's action against it. Id.
As in this case, Lacey argued that it could directly sue CNA Insurance for the City's negligence even though the listed insured was Bekaert. Id. The Eighth Circuit rejected Lacey's argument and held that:
the narrow purpose of the statute serves only to permit direct action against insurance carriers issuing policies to enumerated immune organizations.

(Emphasis added). Hence, the court affirmed the district court's dismissal of Lacey's direct action against CNA Insurance.
As in Lacey, Cherry attempts to circumvent the immunity provision by directly suing an insurance company for acts done by an entity other than the named insured. Surely, the drafters of the Ark.Code Ann. § 23-79-210 (Repl.1992) never intended to hold an insurance company directly liable for actions of a person or entity the insurance company never agreed to insure. Therefore, we adopt *464 the Eighth Circuit's holding in Lacey and reject Cherry's argument for reversal.

B. Immunity of Tanda.
Finally, Cherry alleges that pursuant to Ark.Code Ann. § 23-79-210 (Repl. 1992), it may directly sue Transcontinental because the exclusive remedy provision found at Ark.Code Ann. § 11-9-105 (Supp.1995) makes Tanda "immune" from tort liability. As with Cherry's other points on appeal, this argument has no merit.
In Helms v. Southern Farm Bureau Casualty Ins., 281 Ark. 450, 664 S.W.2d 870 (1984), this court said that:
other statutes must yield to the Workers' Compensation Act because it is in the interest of the public policy to give that act priority as an exclusive remedy.
Thus, in Helms this court held that the exclusive remedy prevented injured teachers from recovering under the school district's automobile insurance agreement which it was required by statute to maintain as an exception to the immunity doctrine.
Moreover, in Burkett v. PPG Indus. Inc., 294 Ark. 50, 740 S.W.2d 621 (1987), this court specifically held that the exclusive remedy provision also applied to insulate the employer's insurance carrier from tort liability. Hence, under these two decisions, Cherry may not maintain a direct action against Transcontinental as Tanda's insurance carrier.
Affirmed.


873 F.2d 944
27 Fed. R. Evid. Serv. 999
Ronnie HOLMAN, Plaintiff-Appellee,v.Steve CAYCE, Defendant-Appellant.
No. 88-5161.
United States Court of Appeals,Sixth Circuit.
Argued Dec. 8, 1988.Decided May 2, 1989.

James D. White, Jr., Reneau & Reneau, Celina, Tenn., for plaintiff-appellee.
Ernest D. Bennett, III, Sparta, Tenn., for City of Sparta, Tenn.
Ernest D. Bennett, III, Sparta, Tenn., for Carl Dilldine.
John E. Acuff (argued), Barnes & Acuff, Cookeville, Tenn., Robert H. Watson, Jr., Watson & Emert, Knoxville, Tenn., for Steve Cayce.
Before MARTIN, JONES and NORRIS, Circuit Judges.
ALAN E. NORRIS, Circuit Judge.

1
The only issue presented on appeal in this civil action is whether a police officer, who refused to reveal the identity of his confidential informant, was properly held to be in contempt of court.  Because the identity of the informant was protected from discovery by the "informer's privilege," we reverse the district court's order.

I.

2
Defendant, Steve Cayce, is a police officer for the City of Sparta, Tennessee.  Acting upon information received from an informant, he was waiting in an unoccupied residence when plaintiff, Ronnie Holman, attempted to burglarize it.  Cayce shot Holman in the course of apprehending him.  After Holman was convicted of burglary and served a prison sentence, he filed this action for damages, pursuant to 42 U.S.C. Sec. 1983, claiming the shooting violated his constitutional rights.

3
When Cayce refused to identify his informant, Holman sought to compel discovery.  Although the trial court denied Holman's motion because "the relevancy of such information was not sufficiently proved by the plaintiff," the court went on to order Cayce to provide the informant's identity to his attorney, who was in turn to obtain the affidavit of the informant, including "all relevant information disclosed to Cayce by his informant," and submit it to the district court for filing "after the case is disposed of" to be "forwarded to the Court of Appeals" in the event of an appeal.  In a later memorandum order, the district judge said he had reasoned that the informant might provide relevant information regarding Cayce's state of mind at the time he used force to prevent Holman's escape, and the judge wanted the affidavit submitted under seal, for review.

4
When the court ascertained that the informant's affidavit had not been filed, the court conducted a hearing and held Cayce in contempt.

5
The trial resulted in a jury verdict for the defendants, from which no appeal has been taken.  Subsequently, the court entered the order finding Cayce in contempt, which is now before this court on appeal.

II.

6
Fed.R.Civ.P. 26(b)(1) provides that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action."    (Emphasis supplied.)

7
Among the evidentiary rules of privilege said to be uniquely available to the government is its privilege to withhold from disclosure the identity of persons who furnish to law enforcement personnel information concerning violations of law.  Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957).  See also 8 C. Wright & A. Miller, Federal Practice & Procedure Sec. 2019 (1970).  By preserving their anonymity, the privilege fosters the public's interest in effective law enforcement by encouraging citizens to communicate to the government information regarding the commission of crimes.  United States v. Whitley, 734 F.2d 1129, 1137 (6th Cir.1984) (citing Roviaro, 353 U.S. at 59, 77 S.Ct. at 627).    Although originally applied in the context of criminal proceedings, the "informer's privilege" is also applicable in civil cases.  See Hampton v. Hanrahan, 600 F.2d 600, 637 (7th Cir.1979), rev'd on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980);  8 Wright & Miller Sec. 2019.  The privilege is not an absolute one;  its limit is found by balancing "the public interest in protecting the flow of information against the individual's right to prepare his defense."    Roviaro, 353 U.S. at 62, 77 S.Ct. at 629.    Whether, in balance, the public policy favoring nondisclosure will be outweighed by a party's interest in obtaining disclosure, will depend upon the particular circumstances of each case.  Id.

8
In balancing those competing interests in the context of a criminal case, courts must consider "the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors."    Roviaro, 353 U.S. at 62, 77 S.Ct. at 629.    When the informant has not been "an active participant in the events underlying the defendant's potential criminal liability," the balance weighs heavily toward nondisclosure.  United States v. Sharp, 778 F.2d 1182, 1186 n. 2 (6th Cir.1985), cert. denied, 475 U.S. 1030, 106 S.Ct. 1234, 89 L.Ed.2d 342 (1986);  see also United States v. Skeens, 449 F.2d 1066, 1071 (D.C.Cir.1971) (collecting cases).

9
In the context of civil litigation, the emphasis shifts from consideration of whether disclosure is necessary to an accused's defense to whether disclosure is essential to the fair determination of a party's cause.  Since the guilt or innocence of a criminal defendant may be viewed as "qualitatively more significant" than the outcome of civil litigation, that difference in significance is a factor to be considered when the privilege is asserted in a civil proceeding.  Hampton, 600 F.2d at 637 n. 40.    But this distinction should be treated only as one of the factors utilized in a Roviaro balancing;  it does not, by itself, warrant our saying that a higher standard of justification must be satisfied in civil cases in order for an exception to the privilege to be recognized, since it cannot be said that all civil cases are less significant than all criminal cases.  Id.  Nonetheless, while the standard is said to be no different whether the privilege is sought to be invoked in a civil or criminal proceeding, as a practical matter, consideration of the circumstances involved in civil litigation will usually mean that the privilege is less likely to give way in a civil action.  8 Wright & Miller, Sec. 2019.

10
Thus, where the informant was neither a witness to nor an active participant in the conduct which gave rise to the civil cause of action, the party seeking to compel disclosure of the identity of a confidential government informant will shoulder a formidable burden in establishing a justification for overriding the privilege.  Normally, that can be accomplished only by a compelling demonstration that the information sought from the informant is likely to influence the outcome of the case or is essential to the party's preparation for trial.

11
Here, Holman failed to make a compelling demonstration that the name of the informant was relevant to the outcome of his civil rights action.  There was no indication that the informant was an active participant in the burglary or a witness to it.

12
Accordingly, any balancing analysis begins with the scales tipped in favor of nondisclosure.  Holman was not asserting that disclosure was necessary in order for him to effectively defend himself against the serious criminal charge of burglary.  Instead, he was seeking disclosure in the context of a civil case based upon his claim that Cayce used excessive force in preventing his escape from the scene of the burglary.  Obviously, the context giving rise to the alleged need for this information was vastly different in the civil case.  Indeed, Holman's need for the information was so speculative that the trial judge concluded that the information was not relevant to the proof of his case.  Certainly, then, considerations of fairness do not compel the conclusion that the public's interest in effective law enforcement was outweighed by a demonstration that the privilege must yield in order that Holman obtain information essential to a fair determination of his cause.  The trial court's subsequent suggestion that the affidavit may have revealed relevant information is simply too tenuous to provide a compelling basis to overcome the privilege.  Finally, the trial court's expressed concern for establishing a record has been rendered moot by Holman's failure to appeal.

13
Because we conclude that the surrounding circumstances weighed in favor of nondisclosure, the identity of Cayce's confidential informant was privileged matter, and the trial judge improperly imposed contempt sanctions.

III.

14
For the foregoing reasons, the order of the district court is reversed.


103 F.3d 142
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Victor L. MARTINEZ, Defendant-Appellant.
Nos. 96-10061, 96-10062.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 2, 1996.*Decided Dec. 5, 1996.

Before:  SNEED, TROTT and THOMAS, Circuit Judges.

1
MEMORANDUM**

2
Victor Martinez appeals his conviction by guilty plea for firearm possession by a felon in violation of 18 U.S.C. § 922(g)(1), and possession of unauthorized access devices in violation of 18 U.S.C. § 1029(a)(1).  The government concedes that pursuant to United States v. Hyde, 92 F.3d 779 (9th Cir.1996), the district court erred in refusing to allow Martinez to withdraw his plea.  We therefore reverse his conviction and remand so that he can plead anew.1

3
REVERSED and REMANDED for further proceedings.

*
 The panel unanimously finds this case suitable for decision without oral argument.  Fed.R.App.P. 34(a);  9th Cir.R. 34-4

**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1
 The government conceded that Hyde was controlling authority, but requested that we stay our resolution of this appeal until the mandate issued in that case.  On November 12, 1996, the mandate issued in Hyde


198 F.2d 837
Application of NELSON.
Patent Appeal No. 5862.
United States Court of Customs and Patent Appeals.
June 24, 1952.
Rehearing Denied September 30, 1952.

William H. Atkinson, San Francisco, Cal. (Lloyd W. Patch, Washington, D. C., of counsel), for appellant.
E. L. Reynolds, Washington, D. C. (H. S. Miller, Washington, D. C., of counsel), for Commissioner of Patents.
Before GARRETT, Chief Judge, and JACKSON, O'CONNELL, JOHNSON, and WORLEY, Judges.
WORLEY, Judge.

1
Appellant has appealed here from a decision of the Board of Appeals of the United States Patent Office finally rejecting as unpatentable over the prior art three claims of an application alleging new and useful improvements in "Shipping Containers and Method of Manufacture." The application was filed March 6, 1946, serial No. 652,370.

The rejected claims read as follows:

2
"6. A blank for the manufacture of corrugated fibre board containers, comprising a wide rectangular sheet of multi-ply corrugated board having an intermediate corrugated ply, and outer facing applied throughout the entire area of said corrugated ply, a narrower inner facing extending longitudinally and centrally of said corrugated ply and of sufficient width to encompass the fold lines of a finished container, and fold forming score lines and cuts upon said multi-ply board within the limits of said inner facing, whereby the walls of the container will be of double faced construction and the closure flaps thereof will be substantially of single faced construction.

3
"14. In a multi-ply fibre board shipping case, the improvement which consists in forming the shipping case of a single sheet of double faced corrugated board, leaving part of the closure flap areas incomplete as to the inner facing component thereof, and disposing the closure flap areas so that when the flaps of the case are closed and glued the over-lapping areas will complete at least one of the incomplete flap facing components of each pair.

4
"16. A fibre board shipping container comprising, a rectangular box-like container constructed from a single blank of fibre board having a central portion which forms the sides and ends and fold lines of double faced corrugated fibre board and other portions which form the top and bottom closure flaps of single faced fibre board, and characterized by the fact that, when closed and glued said closure flaps will cooperate with each other and provide the equivalent of a double faced corrugated board with a corrugated lining at the top and bottom of the container."

5
The cited prior art consists of the following patents: J. C. Bulis, 1,555,182, September 29, 1925; E. E. Maston, 1,588,123, June 8, 1926.

6
The claimed invention relates to shipping containers fabricated from multi-ply corrugated fibre board. As the board is constructed it contains a middle layer of corrugated cardboard to which is glued an outer facing sheet of paper covering its entire area. The other side of the cardboard has glued to it a like facing sheet of paper that is of reduced width. That facing, when glued to the cardboard, extends at right angles to the corrugations and is only wide enough to encompass the fold line of the blank when folded to complete the container. The entire board is made as a continuous strip and then suitably cut and scored to provide a blank from which is made the finished container. The flap-forming portions of the container are of two-ply construction by reason of the reduced width of the inner paper facing. That construction exposes the corrugated ply inwardly. When the flaps are folded they overlap in pairs on the top and bottom of the completed structure and when glued the flaps co-operate with each other so that the outer facing of the inner flaps provide the equivalent of a 3-ply top and bottom with an additional ply of corrugated board as a padding at those points. It is alleged in the application that a container so made is lighter in weight and cheaper to make than other containers of the same size and that this result is obtained without loss of strength in the use of the containers.

7
The Bulis patent relates to a packing box generally similar to that defined in the involved claims. The patent discloses that the packing box is made of corrugated paper between layers of smooth paper which is secured to the faces of the corrugated paper. The object of the invention is to "provide a simple means for re-enforcing the top and bottom edges where the flaps bend * * *." That object is said to be accomplished by means of three strips of paper which cover the corrugated layer and having edge portions which overlap.

8
The patent to Maston relates to a bottle wrapper. It discloses a wrapper made of corrugated board which is faced on one side with paper. Portions of the corrugated layer and the end-forming portions thereof are omitted.

9
The Primary Examiner rejected the claims on appeal as unpatentable over the Bulis patent or that patent in view of the Maston reference.

10
In discussing the Bulis patent, the examiner noted that the three overlapping sheets of paper in that patent are in the areas of the closure flap fold lines and thus provide re-enforced construction at such lines. He was of the opinion that to omit the two outside facing strips of the Bulis device, which function in providing a re-enforced fold line and their inherent function of re-enforcing the closure flaps, would lack invention. He held that such omission would not result in any unobvious or unexpected advantage because such advantage would be inherent.

11
In discussing the Maston patent, the examiner stated that it is broadly old, as shown in the structure of that reference, to reduce the bulk weight of a container by omitting portions of the inner thickness and because of such understanding, he was of the opinion that it would be obvious to leave out the two outside paper-facing strips of the Bulis device for the same purpose.

12
The Board of Appeals agreed with the reasoning of the examiner and his conclusion for the reason that it did not believe that the omission of the two outer paper strips of the Bulis structure would cause the other elements of the device to function differently from those which they normally would perform if the strips were present in that container. The board asserted that appellant was unable to point out any such functions or attribute any new or unobvious results to such omission.

13
The board noted it is well established that if the omission of an element is attended by a corresponding omission of the function performed thereby, there is no invention if the elements retained perform the same functions as before. In re Trester, 391 O.G. 501, 1930 C.D. 54; In re Collins, 408 O.G. 5, 1931 C.D. 247; In re Frey, 417 O.G. 850, 1932 C.D. 165; In re Fischer, 422 O.G. 905, 1932 C.D. 455; In re Porter, 444 O.G. 991, 1934 C.D. 278.

14
The board, in its decision stated that the rejection of the claims as unpatentable over the Bulis patent in view of Maston appeared to be cumulative and, therefore, it was not deemed necessary to consider such rejection.

15
It is conceded by counsel for appellant that "if applicant had omitted only the overlapping or reenforcing function of the strips 4 and 5 of Bulis, the examiner's reasoning would appear to be sound * * *."

16
Counsel for appellant agree as to the correctness of the rule with respect to the omission of an element and its corresponding function but in their brief argue that in the present instance it is believed a distinction can be made as the device here claimed involves only a single element; namely, "a flat foldable blank from which a carton * * * may be formed."

17
In the structure of the Bulis patent, and with respect to the omission of the two outer strips, we are unable to see that the number of component parts remaining in the device of that patent, or the number which appellant claims, can have any bearing on the application of the rule set out in the cases which are cited by the board.

18
It may well be that appellant has made an improvement over similar structures as shown by the prior art. However, as this court stated in the case of In re Burnham, 53 F.2d 534, 19 C.C.P.A., Patents, 723, 725, that is not sufficient to warrant a granting of the patent if there is absence of invention.

19
In our opinion, no invention is here involved. In view of the prior art it would require no more than the skill of the ordinary mechanic to produce a structure such as is shown in the claims. In re Cady, 111 F.2d 899, 27 C.C.P.A., Patents, 1208.

20
Ordinarily, the application of re-enforcing parts to a structure does not involve invention. In re Campbell, 48 F.2d 915, 18 C.C.P.A., Patents, 1351. As was pointed out by the solicitor in his brief, it may well be that strength in a device is a matter of degree and the amount of strength needed in a given place is usually obvious to the skilled worker in the art.

21
It is argued in the brief of the solicitor that the converse of that statement should be equally true and for the same reason. In other words, ordinarily there would be no invention in omitting a re-enforcing device when it is seen not to be necessary.

22
The patent to Bulis discloses the outside strip-re-enforcing devices. Surely it would not involve invention if appellant or anyone else discovered that the device of that patent is sufficiently strong without the re-enforcing parts.

23
It is probably true that the omission of the inner facings from the container of appellant results in a saving of cost, material, and weight, without loss in the strength of the container. That, however, is not sufficient to bring the involved claims into the patentable category. In re Belsinger, 115 F.2d 820, 28 C.C.P.A., Patents, 760.

24
Even though the patent to Bulis is more than 26 years old, that fact standing by itself is no reason why it cannot be properly invoked as a reference if the structure disclosed and relied upon is clearly and definitely shown. In re Rosenberger, 116 F.2d 507, 28 C.C.P.A., Patents, 818, and In re Jones, 195 F.2d 538, 39 C.C. P.A., Patents, ___.

25
For the reasons hereinbefore set out, the decision of the board is affirmed.

26
Affirmed.

27
JACKSON, J., sat during the argument of this case but retired April 1, 1952, before the opinion was fully prepared. He was recalled in conformity with Section 294 (c) (d), Title 28 U.S.C. to participate in the decision and did so.

28
JOHNSON, Judge (dissenting).

29
It is true that, in the light of appellant's disclosure, it would not be difficult to modify the prior art devices of record to produce a device such as that disclosed and claimed by appellant. This, however, does not necessarily negative the presence of patentable invention since the conception of a new and useful improvement must be considered along with the actual means of achieving it in order to determine the presence or absence of patentable invention. In re DeLancey, 159 F.2d 737, 34 C.C.P.A., Patents, 849. Although an ordinary person skilled in the art may construct the device claimed, claims may be allowed where there is no teaching in the prior art which would have led him to do so, providing, of course that the claimed device displays the exercise of invention. In re Riggs, 189 F.2d 285, 38 C.C.P.A., Patents, 1094. It seems to me that appellant by his simple changes has indeed produced what the majority refer to as an improvement — in my opinion, a marked improvement — and I fail to find in the prior art anything that suggests the simple changes appellant has made to achieve such improvement.

30
I am therefore of the opinion that the claimed device is not only new and useful, but involves invention over the art of record. Accordingly, I think the decision of the Board of Appeals should be reversed.

31
O'CONNELL, J., concurs in this dissent.