or not the rule of justice will be better served by such disclosure than by non-disclosure, that is, whether the public interest in maintaining secrecy of the Grand Jury process is outweighed by a particularized showing that disclosure is needed to achieve a just result in this litigation.
'4. That where such a determination is made only so much of the transcript shall be disclosed as is needed to achieve this result.
'5. That before any particular transcript is turned over, the Justice Department be given a reasonable opportunity to express its view as to the propriety of the contemplated turnover of the testimony in question.'
It is the feeling of the Court and the Deposition Committee that the above position taken by the Government is eminently fair, just and reasonable. To the above, the Court would add that Grand Jury transcript should never be opened solely for discovery purposes. The historical reluctance of the Court to open Grand Jury records would outweigh any other considerations where they are sought purely for discovery purposes. However, the Court points out that these are trial depositions which may be utilized in any section of the country, and it is in that light that determinations are being made in this case.
Again reverting to the over-all problem, as Judge Kirkpatrick indicated, the need for secrecy must also be weighed and subjected to analysis. Five reasons have been cited with agreement by numerous Federal Courts as compelling the rule of secrecy, e.g. United States v. Procter & Gamble Co., supra, 356 U.S. at 681-682, n. 6, 78 S. Ct. 983; United States v. Rose, supra; United States v. Amazon Industrial Chemical Corp., 55 F.2d 254, 261 (D.C.Md.1931). These reasons are:
(1) To prevent the escape of those whose indictment may be contemplated;
(2) To insure the utmost freedom to the Grand Jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the Grand Jurors;
(3) To prevent subornation of perjury or tampering with the witnesses who may testify before the Grand Jury and later appear at the trial of those indicted by it;
(4) To encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes;
(5) To protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.
Numbers 1, 2 and 3 are no longer reasons for secrecy after an indictment has been returned and trials completed. Cf. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S. Ct. 811, 84 L. Ed. 1129 (1940). And No. 5 is not here involved.
Number 4, the need to encourage free disclosure by those who have information of crimes, is a reason for secrecy which can be ignored by no Court. The willingness of a witness to speak openly without fear must not be subordinated to any policy if the Grand Jury system is to function. However, we are here concerned at any one time with opening the testimony of an individual witness in a single peculiar case.
The defendants have laid great stress upon the refusal of Chief Judge Ganey (now Judge of the Court of Appeals), Application of the State of California, 195 F.Supp. 37 (E.D.Pa.1961), Judge Wood, In re Grand Jury Proceedings, 29 F.R.D. 151 (E.D.Pa.1961), and Judge Kraft, United States v. General Electric Co., 209 F.Supp. 197 (E.D.Pa.1961), in refusing applications with respect to these same Grand Jury records. A close examination of those cases, however, reveals that none of them posed the problem presented here. We are now dealing with trial depositions and it will be noted that in each of the other instances, the application was for discovery purposes only, which, as set forth above, is not a proper ground upon which to predicate an order for disclosure.
The testimony of the witness Allen has been examined in camera by the Court. It is the conclusion of the Court that in this particular instance, the Grand Jury transcript should not be ordered. It is also the conclusion of the Court, however, that the Grand Jury transcript of any witness deposed in this program, either in this district or in any other district of the United States in which these cases are pending, should be made available to the deposition Judge for use in his district. There may be and probably will be many instances during these national depositions when disclosure may be advisable. Were it not for the availability of Allen's summary of his Grand Jury testimony, this may have been just that sort of instance. The refusal to open Allen's testimony cannot rule out production where in camera examination by a deposition Judge uncovers material discrepancy or significant facts which the witness concealed, or failed to remember, at his deposition. Such disclosure as is necessary to uncover full and complete facts must be allowed. If, at the completion of any deposition taken in the national program, a motion is made for the production of that witness' Grand Jury testimony, and if the deposition Judge requests it from this Court for examination in camera, the testimony will be immediately made available to him. The deposition Judge may then contrast the Grand Jury testimony with the deposition and determine, in his own discretion, whether in the interest of justice there is compelling need for disclosure.
Not all situations that may confront a deposition Judge can be foretold or foreseen, but some workable program in this connection must be devised which will insure the production of Grand Jury testimony under proper safeguards. Therefore, upon the request of any deposition Judge to this Court, a single copy of the witness' testimony will be made and sent by the Clerk of this Court, by registered mail, and under the seal of the Court, to the deposition Judge for his examination and action, and thereafter when it has served its purpose, it shall be returned to the Clerk of this Court who will impound it. Should a deposition Judge, prior to the taking of the deposition of a witness, request such a copy, his request will be honored, and a copy of the transcript forwarded, again under the seal of the Court. If no motion is made with respect to the testimony of the particular witness, the transcript will be returned to the Clerk of this Court unopened. This action is being taken solely for the purpose of expediting the national discovery program.
An appropriate Order will be entered concurrently with the filing of this Opinion.
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