only are the defendants in the civil actions at Philadelphia and that neither they nor their officers in their corporate capacities have any rights to the Fifth Amendment privilege against self-incrimination. However, it is also true that some of the criminal individual defendants are officers of the civil corporate defendants who may be required to present answers in Philadelphia or compel those over whom they have supervision to present answers which can prejudice them in the criminal actions.
If I were to presently deny the defendants' motion, I am effectually compelling them to make answers which may tend to incriminate them in the event that the Government does not already have such information. I do not doubt that the Government agencies will be alert, as they should be, in their examination of all matters which such Philadelphia defendants might present. Should such answers be divulged under such circumstances, the Government, too, might be harmed because of the objections to the admission of any evidence at the criminal trials, and so possibly make such evidence inadmissible. In any event, one may reasonably anticipate that the defendants in the criminal trial would avail themselves of all possible objections (as they would have the right to do) as the circumstances would present. All of which would confuse, and perhaps complicate, the due processing of a fair criminal trial. No one will doubt that I am duty-bound to respect the Government's rights even as I must respect the defendants' rights in a criminal action.
While the individual criminal defendants are not directly defendants in the Philadelphia cases, they are so interlinked in the overall picture so far as any conspiratorial evidence may appear, that it becomes vital at this time. We cannot anticipate or prophesy what will be divulged by answers and production of documents in discovery proceedings, but we may reasonably believe that matters prejudicial to all of the defendants will be divulged at a time prior to that during which they will be compelled to stand trial for the criminal charges. Once this occurs, like the opening of Pandora's box, it may never be recalled or cancelled out. It will then have been too late. It is presently proper to prevent such a probable happening in the future. I now justify that consideration additionally as based upon my examination of the interrogatories and requests for production of documents.
Seventy-one interrogatories were filed in Philadelphia. Some of these interrogatories contained multiple questions. Altogether they attempt to lay open in minute detail the grand jury proceedings by which the indictments in the criminal cases resulted and official, individual and customer activities relating to or in anywise connected with such grand jury proceedings.
The motion for production as filed in the Philadelphia civil cases lists a demand for "written, printed, typed, recorded, or graphic matter, however produced or reproduced . . .", in the period from January 1954 to December 1966 and subsequent thereto. The list enumerates forty-three numbered items for the productions so requested, which include summaries of grand jury investigations, such as subpoenas, testimony, records of various cases and a multiple number of demands for corporate, official, individual, customer and government-related matters. I now find that the constrained answering of these matters by the defendants would result in irreparable injury to the defendants and to the public as it would affect the due and orderly processing of these pending criminal cases before me.
The plaintiffs argue that the issue determined by Judge Lord in the Philadelphia cases is the same as presented for injunctive remedy; that the District Court at Pittsburgh and the District Court at Philadelphia have co-existing jurisdictions; that the Eastern District Court received the first jurisdiction and that Judge Lord's discretionary determination binds the Western District Court. With this I cannot agree. The question of postponing discovery in Philadelphia is the same in both Districts, but the jurisdiction and issues as they apply in this District are different. This needs no further discussion because we may, at least for the present, accept the determination made by the District Court and not negated by the Court of Appeals for the Second Circuit in Simon, supra, that there is jurisdiction here.
I should add that Judge Lord's decision was a discretionary one and properly determined under the circumstances of that case. But if the District Court is charged with the duty of conducting a fair criminal trial and has the power (or jurisdiction) to enforce it, it becomes here not one of discretion but of precept. Thus there is this distinction which refutes the plaintiffs' contention that the identical issue was discretionarily adjudicated by Judge Lord. The determination here at Pittsburgh, it appears, is not dictated by any statute or federal rule of procedure. The Supreme Court has declared it to be an inherent power in the trial judge by which the duty is imposed upon him to provide orderly and fair processing of criminal trials, both as relates to the prosecution, the defendants, and variously related third parties. Sheppard v. Maxwell, 384 U.S. 333, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966); Estes v. Texas, 381 U.S. 532, 14 L. Ed. 2d 543, 85 S. Ct. 1628 (1965); McNabb v. United States, 318 U.S. 332, 87 L. Ed. 819, 63 S. Ct. 608 (1943).
The court's inherent power to supervise the administration of criminal justice within its jurisdiction was explained by the Supreme Court in McNabb v. United States, supra, at page 340, where Justice Frankfurter stressed the court's "duty of establishing and maintaining civilized standards of procedure and evidence. Such standards are not satisfied merely by observance of those minimal historic safeguards for securing trial by reason which are summarized as 'due process of law' and below which we reach what is really trial by force."
The significant difference between the issue existing in Philadelphia from that in Pittsburgh was pointed out by Judge Wisdom in Campbell v. Eastland, 307 F.2d 478, 487, C.A. 5, 1962, cert. den. 371 U.S. 955, 83 S. Ct. 502, 9 L. Ed. 2d 502 (1963), in these words:
"There is a clear-cut distinction between private interest in civil litigation and the public interest in a criminal prosecution, between a civil trial and a criminal trial, and between the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure."
I add only that the criminal defendants' right to due process is distinguishable from that of parties in civil actions. In the civil action testimonial compulsion of defendants is a rule. In criminal actions it is an exception.
The defendants charge that the Government will be aided by the civil discovery procedures in the Philadelphia cases and that the Government should not be indirectly granted discovery which exceeds that offered by the Federal Rules of Criminal Procedure. Campbell v. Eastland, supra; United States v. Pack, 150 F. Supp. 262, 264 (D. Del. 1957); In re National Window Glass Workers, 287 F. 219, 226-228 (N.D. Ohio, 1922); See also United States v. Sermon, 218 F. Supp. 871, 872 (W.D. Mo., 1963).
The primary duty for protecting the plaintiffs' rights lies with Judge Lord in Philadelphia. But when, as here, I exercise jurisdiction so as to interfere with the processing of a civil case, I must be mindful of the respective situations of all concerned parties, the plaintiffs at Philadelphia, as well as the Government and defendants here.
I have given considerable consideration to the possible harm which may accrue to the plaintiffs by the granting of a preliminary injunction. I agree with Judge Lord that the plaintiffs are entitled to the right to proceed as quickly as they may in procuring the necessary information by way of Federal Rules of Civil Procedure so that they may be able to recoup whatever losses can be proved as resulting to them.
The plaintiffs complain that they will be harmed by an injunction because of the delay which is imposed on the processing of their treble damage actions, in that memories may dim with time and because of the danger of loss or destruction of the presently available and existing records of various kinds.
This contention is argumentative only and seeks support in the recent reversal by the Court of Appeals for the Third Circuit of a stay of proceedings granted by Judge Augelli in Borda v. American Oil Co., et al., Civil Action No. 947-66 (D.C.N.J., 1966) ( Texaco, Inc. v. Charles A. Borda, et al., 383 F.2d 607, C.A. 3, 1967). Our Court of Appeals, while approving the overall stay pending determination of a criminal action, nevertheless permitted the deposing of Mr. Borda because of his advanced age. We have no such circumstance before us.
Therefore, while recognizing that the plaintiffs are entitled to speedy availability of discovery processes of persons and records, the delay by the granting of a preliminary injunction will not unduly cause the plaintiffs irreparable harm as weighed against the possible irreparable harm to the defendants. In fact, by a speedier disposition of the criminal actions now pending before me, the plaintiffs are likely to acquire greater benefits from records divulged in the criminal proceedings under 15 U.S.C. § 16(a).
One other matter should be here discussed. The plaintiffs argue that no priority exists between the two types of actions, that they are constitutionally and equally entitled to proceed in the civil actions for damages as the defendants may be to due process and a fair trial in the criminal proceedings.
We have no directive by statute or rules of procedure as to priorities where civil and criminal proceedings clash, as they appear to do here. But we do have expression after expression for which no authority is needed on the fundamental right or preservation of life and liberty, commencing with the expression contained in the Declaration of Independence. Although property rights may have been included in particularly the words "pursuit of happiness", it is significant that the founders of our country deemed it not of such comparative importance as life and liberty as to mention it in the Declaration of Independence. The whole sentence which speaks of this is here presented as a reference to the specific words used: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." This will not deny the constitutional right to property, but that raises no question here, for I can see no prejudicial results to the plaintiffs while here protecting the fundamental rights of the defendants in the pending criminal actions.
As far as constitutional priorities are concerned, we would be in an unreasonable dilemma if we attempted to equalize all constitutional rights. For instance, the right to a fair criminal trial may at times conflict with the right to freedom of the press under the First Amendment. Yet freedom of the press must give way to the extent that it interferes with due process of law and the procurement of a fair trial. Sheppard v. Maxwell, supra; Estes v. Texas, supra.
We consider any prejudice which may result to the ultimate criminal defendants from pretrial disclosures from all possible sources. In other motions in these criminal proceedings presently before me, the defendants seek en camera hearings because of local and wide-spread publicity attributed to the legal proceedings at Pittsburgh. Although the discovery matters at Philadelphia are presently properly pretrial matters in the civil proceedings there pending, the matters which may be disclosed there undoubtedly would receive the attention of the press. In that connection, Sheppard v. Maxwell, supra, gives strong cautions to trial judges. At page 362, the Court stated:
"From the cases coming here we note that unfair and prejudicial news comment on pending trials has become increasingly prevalent. Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances."
The function of the trial court is to conduct the whole proceedings - trial and pretrial - in an atmosphere of dignity and integrity, so as to shield the trial process itself from external factors. Estes v. Texas, supra, concurring opinion of Chief Justice Warren at 381 U.S., page 562.
At page 363, the Court added that the courts must be concerned with the protections at such times as the need for protections come to their notice. It cautioned in this respect by these words:
"But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function."
It is a duty of the trial judge in such proceedings to protect the accused in a criminal case.
Practical application for the preservation of right to a fair trial is the scale by which reality is weighed. Human experiences and human tendencies bear upon the balance and these we cannot ignore.
Repeating what has already been said, the lawyers on both sides in this criminal proceedings will, as earnestly as they can, represent their respective clients. They will observe technicalities and use them where they can. They will do this not because of any ulterior motive to detract from a fair trial, but they will do this because of their warranted beliefs in their right to pursue the due process accorded to their respective clients.
The remedies available to the parties before any harm is done to either side comes not at the time of trial when prejudice to the defendants and injustice to the public may prevail, but now at the inception when notice of such possibilities and likelihoods are presented in formal manner. I deem the time to act in this connection is now.
For all of these reasons a Decree granting a preliminary injunction has been entered on the 28th day of July 1967. All motions inconsistent with this Decree will be denied.
All findings of fact and conclusions of law are here incorporated as they may be required by law.