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May 11, 1961

Application of STATE OF CALIFORNIA to Inspect Grand Jury Subpoenas

The opinion of the court was delivered by: GANEY

This is a motion for leave to inspect and copy grand jury subpoenas, both duces tecum and ad testificandum, which arose out of a number of criminal indictments which charged practically all of the leading manufacturers of heavy electrical equipment with violations of the Sherman Anti-Trust Act, 15 U.S.C.A. § 1 et seq.

Five separate grand juries, during varying periods of time, heard the evidence, and approximately 440 subpoenas duces tecum and approximately 70 subpoenas ad testificandum were served. These subpoenas duces tecum covered products which were the subject of the various indictments, as well as products which were not the subject of indictment, products, which for all that this court knows, may still be under investigation. A total of approximately 196 individuals were served with either subpoenas duces tecum or ad testificandum, of which approximately 190 testified before one or more of the grand juries.

 These indictments represented the most serious violations of the anti-trust laws since the time of their passage, at the turn of the century, as evidenced by the statement of the Attorney General to the court, 'These indictments charge as serious instances of bid-rigging and price-fixing as have been charged in the more than half century life of the Sherman Act.' The conspiracies alleged in the various indictments cover virtually the entire country geographically and concerned not only a great number of private utilities, but municipal and state governments, as well as the Government of the United States and involved, during the period covered by the indictments, several billion dollars worth of materials.

 In all, there were twenty indictments n1 involving twenty-nine corporate defendants and forty-four individuals, in which all have entered pleas of guilty or nolo contendere, as has been indicated.

 In addition to the allocation of sales to governmental agencies *fn2" in some of the cases, all of the indictments involved clear and persistent price fixing activities. The indictments charged frequent and periodic meetings throughout the country among the defendants to discuss and agree upon prices and price changes, to designate which manufacturer would initiate the price change, and to exchange the proposed price lists before adoption. As many as thirty meetings were held among competitors, to discuss price policies, as well as to insure that each defendant was maintaining the agreed upon prices in sales to purchasers.

 In brief, this motion by the State of California, along with private utilities and others who have joined, including a number of municipalities such as Philadelphia and Chicago, seeks to have the list of witnesses that appeared before the Grand Jury divulged to it, as well as a list of the documents requested by the Government to be inspected by the Grand Jury. The Government does not oppose the proponents of the motion and still retains certain of the information presented to the Grand Jury.

 The purpose of this motion is patently clear. California and several other states and municipalities, as well as private utility companies, have allegedly been aggrieved by the price-fixing and bid-rigging alleged in the various indictments. It is virtually conceded that they seek to have this information, that is the names of witnesses and the copying of the various subpoenas for the production of documents before the Grand Jury, for the purpose of bringing civil treble damage actions under the anti-trust laws. The proponents of the motion contend that the obtaining of this information will decrease the amount of work necessary for them to do by way of discovery and will save duplication of expenses. For these reasons, California and others maintain that the public interest will be served in granting the motion. Contra, the opponents feel that it should be denied on several grounds, (1) that the obtaining of such information will encroach on the secrecy of the Grand Jury proceedings, (2) that no special circumstances have been shown to justify such an unusual procedure, and (3) that, in fact, no public interest will be served.

 We start out with the general observation that there has been a traditional rule of secrecy surrounding grand jury proceedings in our courts. In Pittsburgh Plate Glass Co. v. United States, 1959, 360 U.S. 395, 400, 79 S. Ct. 1237, 1241, 3 L. Ed. 2d 1323, speaking of grand juries, the Supreme Court said: 'To make public any part of its proceedings would inevitably detract from its efficacy. Grand jurors would not act with that independence required of an accusatory and inquisitional body.' However, it is realized that grand jury testimony and proceedings before it are not inviolate, as was stated in United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233-234, 60 S. Ct. 811, 849, 84 L. Ed. 1129, 'Grand jury testimony is ordinarily confidential * * * but after the grand jury's functions are ended, disclosure is wholly proper where the ends of justice require it.' To the same effect are Metzler v. United States, 9 Cir., 64 F.2d 203, 206; United States v. Byoir, 5 Cir., 147 F.2d 336, 337; United States v. Alper, 2 Cir., 156 F.2d 222, 226.

 Rule 6(e) of the Federal Rules of Criminal Procedure provides for 'Disclosure of matters occurring before the grand jury * * * when so directed by the court preliminarily to or in connection with a judicial proceeding.' 18 U.S.C.A. Rule 6(e).

 Here, we may draw no narrow technical rule and while the point has been made by the proponents of the motion that these requests are not matters occurring before the grand jury, it seems obvious that the names of witnesses subpoenaed to testify, as well as documents subpoenaed and used by them in their deliberations, are matters 'occurring before the grand jury.'

 As was said in United States v. Stein, D.C.S.D.N.Y.1955, 18 F.R.D. 17, 19, reversed on other grounds United States v. Jackson, 2 Cir., 1958, 257 F.2d 830, 'Secrecy of Grand Jury proceedings through inspection of Grand Jury minutes * * * or indirectly by disclosure of the documentary evidence presented to it.' Surely disclosure of the names of the individuals and the documents subpoenaed before them would ultimately end in disclosure of the contents of the documents and that in turn would upset the secrecy of the grand jury.

 '* * * persons, non members of the grand jury, thus having access to said records and documents, have no right to use them for any purpose whatsoever except to assist the grand jury in its work. Such persons may not in any manner use these records and documents, or any information acquired therefrom, for any other purpose, and specifically for any civil purpose, such as tax collection or otherwise * * *.

 '* * * as far as civil proceedings are concerned, the production of these records and documents pursuant to a grand jury subpoena, if followed by their use in any manner for the purposes of such civil proceeding against petitioners, violates their constitutional rights under the hereinbefore quoted ...

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