to the plaintiff, the most that can be said is that in the context of the administration of criminal justice, what constitutes "particularized need" for disclosure at trial is less than in other situations.
The only showing of need in the present case is that disclosure will expedite discovery. This has been held to be insufficient to constitute a compelling and particularized need. United States v. Proctor & Gamble, supra ; City of Philadelphia v. Westinghouse Electric Corp., 210 F. Supp. 486 (E.D. Pa. 1962).
The case of United States Industries v. United States District Court, 345 F.2d 18 (9th Cir. 1965), relied upon by plaintiff, is not apposite here, since the key factor of disclosure to the opposing side is not present in our case. The minimal disclosures which have occurred all related to the separate, West-of-the Rockies, conspiracy not involved in this litigation.
In sum, the plaintiff is seeking disclosure of the government's memoranda solely as an aid to civil discovery. Although I am sympathetic to the plaintiff's position, the law requires that before the veil of grand jury secrecy may be lifted, the party seeking disclosure must demonstrate a more compelling and particularized need than merely expediting civil discovery.
Originally, the government contended that Fed. R. Civ. P. 32(c) constituted an independent ground for precluding the disclosure of the two sentencing memoranda submitted to the Probation Department of this Court. In its reply brief, the government has apparently abandoned this argument by conceding that even in light of Rule 32(c), the Court is vested with discretion to order disclosure. Therefore, since I have already considered the Rule 6(e) argument applicable to these two documents, there is nothing before me requiring a ruling.
However, this does not end the matter. All that the above analysis indicates is that the three documents in question should not be disclosed in their entirety to the plaintiff in this civil case. However, my own review of the sentencing memoranda submitted to me in the criminal case reveals that it may very well be that some of the information contained therein was not educed through the grand jury proceedings. I can perceive of no reason for immunizing such information from otherwise legitimate discovery processes merely because it fortuitously found its way into a sentencing memorandum which also includes direct quotes and abstracts of grand jury proceedings.
Therefore, it seems appropriate to require the government to submit to this Court copies of all three memoranda, marked in some appropriate way to indicate what portions of the memoranda are directly based on evidence educed during the grand jury proceedings. Upon receipt of these marked copies, an in camera review will be made, and I will determine what portions of the memoranda, if any, will be proper subject matter for disclosure.
The subpoena duces tecum will be held in abeyance pending the above submission and until further order of this Court.
Supplemental Memorandum and Order
FULLAM, J.: I have now reviewed in camera the sentencing memoranda submitted by the Antitrust Division in United States of America v. Globe Ticket Co., et al., Criminal No. 22924, Eastern District of Pennsylvania, and the representations of the Department of Justice as to the source of the information therein contained. It is now clear that virtually all of the facts contained in the sentencing memoranda were derived from testimony presented to the grand jury. The only exceptions are certain background facts relating to the industry, which are matters of common knowledge and readily available elsewhere, and certain references to the earlier proceedings before the Federal Trade Commission, all of which are matters of public record. I am therefore satisfied that production of these memoranda should not be required at this time.
And now, this 20th day of February, 1970, it is hereby Ordered that the subpoena duces tecum served on Donald G. Balthis, Esq., to the extent that it requires production of the sentencing memoranda submitted by the Department of Justice in connection with the criminal prosecution, United States of America v. Globe Ticket Co., et al., Eastern District of Pennsylvania, Criminal No. 22924, is hereby quashed. The memoranda shall be impounded, but shall remain on file for record purposes.