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October 23, 1962


The opinion of the court was delivered by: CLARY

There is presently before the Court a motion for the production of the transcript of the testimony of A. C. Allen, Sales Manager of defendant, Wagner Electric Corporation, before a Grand Jury of this Court. Mr. Allen was deposed as the first witness in the national deposition program for the civil antitrust actions for damages brought against the nation's heavy electrical equipment manufacturers by customers who alleged damages arising out of the same circumstances which resulted in criminal judgments against the same defendants in this Court in 1960. Because of the numerous problems resulting where some 1800 similar actions are scattered throughout some 35 districts of the country, the judiciary, through a sub-committee of the Judicial Conference of the United States, has established a national discovery program. This includes a documentary depository in the Northern District of Illinois and a consolidated national deposition program under which all depositions taken in certain specified districts, at certain specified times, will be available for use at trials in every district of the United States.

Allen's testimony disclosed that he had actually testified before the Grand Jury and had made a record of this testimony immediately thereafter. It is quite apparent, after the Court had held the written record of his testimony not privileged, that his memory became sharper and keener than it had been up to that time. The plaintiffs, feeling that perhaps important details of the testimony given before the Grand Jury may have been omitted, thereupon petitioner the Court for the right to review his Grand Jury testimony.

 At the threshold, the Court posed what it considered and considers the two vital questions, answers to which will determine the action of the Court. The first question is as follows: In taking the testimony of a witness in civil litigation, does the Court have the power, under any circumstances, to order disclosure to non-government litigants of the testimony previously given by that witness on the same subject matter to a Federal Grand Jury? If the answer is 'No', the matter is ended. However, if the answer is 'Yes', the second question arises. That question is: Do the circumstances presently before the Court in taking the deposition of the witness Allen under the national discovery program warrant disclosure of the testimony of the deponent before the Grand Jury investigating the same subject matter? Assuming that the Court would order the disclosure, under what conditions, procedure and considerations should disclosure of any part or the whole of the deponent's testimony be ordered?

 After careful consideration, the Court has come to the conclusion that the first question must be answered in the affirmative. The opening of Grand Jury testimony in this instance lies within the sound discretion of the deposition Judge. The traditional rule of Grand Jury secrecy and the occasions upon which that secrecy can be dropped have been stated in Rule 6(e) of the Federal Rules of Criminal Procedure:

 'Secrecy of Proceedings and Disclosure. Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No obligation of secrecy may be imposed upon any person except in accordance with this rule. * * *'

 All cases in this area agree that disclosure of Grand Jury testimony is a matter left to the considered discretion of the trial Judge, e.g. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S. Ct. 1237, 3 L. Ed. 2d 1323 (1959); United States v. Procter & Gamble Co., 356 U.S. 677, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958); United States v. Rose, 215 F.2d 617 (3 Cir., 1954); In re Grand Jury Proceedings, 4 F.Supp. 283 (E.D.Pa.1933). The discretion of the Court in this case is to be found in the second sentence which allows the Court to direct disclosure of Grand Jury matters preliminarily to or in connection with a judicial proceeding.

 Defendants have argued that the second sentence allows disclosure only to the defendant. It is urged that the phrase 'upon a showing that grounds may exist for a motion to dismiss the indictment * * *' was intended to modify all of the preceding part of the sentence.

 This position is without merit. To read the Rule as so qualified is to ignore the grammatical construction of Rule 6(e) as finally adopted. Even if the draftors of the Rule were, as defense counsel urges, primarily concerned with insuring disclosure to certain defendants, the Rule as adopted is more encompassing. The grant of power to order disclosure is stated in broad terms without expressed restrictions upon the Court's discretion. None of the many cases have read this Rule to the contrary.

 The Supreme Court has quite clearly stated in United States v. Procter & Gamble Co., supra, 356 U.S. at 682-683, 78 S. Ct. 983, that the policy of secrecy accorded to Grand Jury proceedings can only be outweighed by this countervailing policy upon the showing of a particular need, compelling necessity, or that the ends of justice require it. This position was reemphasized in Pittsburgh Plate Glass Co. v. United States, supra. These cases have been equally clear in deciding that relevancy and usefulness of the testimony are not enough to satisfy these standards of necessity and justice. United States v. Procter & Gamble Co., supra, 356 U.S. at 682-683, 78 S. Ct. 983; Pittsburgh Plate Glass Co. v. United States, supra, 360 U.S. at 400, 79 S. Ct. 1237.

 If relevancy and usefulness were the only factors of need in plaintiffs' case, this motion would have to be denied. However, other essential considerations are present in these numerous cases which must move the scale in favor of some limited opening of the Grand Jury testimony.

 The unique nature of these cases and this program of discovery must be given considerable weight. These depositions are binding upon all plaintiffs. And most of these plaintiffs -- states, municipalities, and public utilities -- are inherently charged with the duty to protect widereaching public interests.

 Plaintiffs have asserted that if all of Allen's Grand Jury testimony has been repeated in the deposition, that testimony is no longer secret and no harm can come from disclosure. But this ignores the heart of the matter. As outlined before, the Court must consider two policies, one requiring secrecy and the other disclosure. And there can be no policy in favor of disclosure unless there is particular need. The lack or improbability of harm is but a factor in the evaluation of the need for secrecy. It is not a factor demonstrating a need for disclosure. While the need for secrecy may not be apparent in a particular case, it must be kept in mind that there is a general policy, fundamental and historically supported, which demands secrecy. Secrecy must still prevail in the absence of particular compelling need. In the tradition of the test established by Judge Kirkpatrick, and adopted by the Supreme Court in Procter & Gamble, disclosure cannot be compelled by the negative fact that there may be no immediate need for secrecy, but only by the positive need for disclosure. If judicial determination could be made by something as simple as a mechanical balance, the weight on the side of disclosure would have to clearly tip the balance in its favor.

 Because of the importance of the question involved, the Court, at the request of the National Deposition Committee, asked for a statement of the position of the Department of Justice. Donald G. Balthis, Esq., head of the Philadelphia office of the Antitrust Section of the Department of Justice, ...

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