The opinion of the court was delivered by: HERMAN
Through this petition the Commonwealth of Pennsylvania, Plaintiff in a pending treble damage action, seeks the production of grand jury materials from the related criminal antitrust actions under Rule 6(e) of the Federal Rules of Criminal Procedure. The background shows that on November 19, 1976 a federal grand jury returned an indictment in this district charging six corporations and three individuals with a conspiracy to fix the prices of anthracite coal.
United States v. Blue Coal Corp., et al., Crim. No. 76-149 (M.D.Pa.). All of these Defendants were permitted to enter pleas of Nolo contendere on January 20, 1977, with the exception of one individual against whom charges were dismissed because of his poor health. On June 2, 1977 additional indictments were obtained against two individuals, James J. Tedesco and Thomas J. Gillen. United States v. Tedesco and Gillen, 441 F. Supp. 1336 (M.D.Pa.). Defendant Tedesco pled Nolo contendere on December 27, 1977 and Defendant Gillen elected to be tried without a jury and was subsequently found guilty of violating Section 1 of The Sherman Act, 15 U.S.C. § 1 on June 21, 1978. On July 22, 1977 this Court entered an order on application of the United States of America releasing to these two individual Defendants "copies of all grand jury transcripts relating to this case, only for the preparation and trial of this case".
On February 22, 1977 the Commonwealth of Pennsylvania filed a civil complaint for treble damages in the Eastern District of Pennsylvania. The complaint named as Defendants all of the parties that were named in the criminal antitrust action of Blue Coal Corporation, but neither Defendant Tedesco nor Gillen from the other separate criminal action.
Numerous other civil antitrust actions were commenced against the various anthracite coal companies and individuals and all of the civil antitrust actions were consolidated for purposes of pre-trial discovery before Judge Muir of the Middle District. In re Anthracite Coal Antitrust Litigation, 436 F. Supp. 402 (Jud.Pan.Mult.Lit.1977).
The six corporate Defendants of Criminal Action No. 76-149 stipulated to the release of their grand jury documents and Plaintiffs have inspected and copied these materials.
In this petition the Commonwealth of Pennsylvania seeks to have this Court direct the Antitrust Division of the United States Department of Justice to produce for inspection and copying:
1. All documents submitted by third parties to the The Department of Justice pursuant to grand jury subpoenas or voluntarily in connection with the investigation which led to the indictment in United States v. Blue Coal Corporation, Criminal No. 76-149 (M.D.Pa.), and/or United States v. Tedesco, 441 F. Supp. 1336 (M.D.Pa.).
2. All transcripts of grand jury testimony which were adduced in connection with the investigations, and
The Department of Justice does not object to the release of the materials, however, numerous civil corporate defendants and witnesses before the grand jury have raised objections to the release of the grand jury materials. All interested parties have been notified of the Commonwealth's petition and two hearings have been held for the purpose of receiving objections and hearing arguments.
After giving considerable thought to the balance that must be struck between the time-honored principle of grand jury secrecy and that of disclosure, I have decided that the indispensable secrecy of grand jury proceedings, at this point, must remain intact. The standard that has been applied in this case is the one set forth in United States v. Procter and Gamble, 356 U.S. 677, 682, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958), that the secrecy of grand jury proceedings will not be broken unless a Compelling and particularized need is shown. See City of Philadelphia v. Westinghouse Electric Corporation, 210 F. Supp. 486, 489 (E.D.Pa.1962); Philadelphia Electric Co. v. Anaconda American Brass Co., 41 F.R.D. 518, 520 (E.D.Pa.1967); ABC Great Stories, Inc. v. Globe Ticket Company, 309 F. Supp. 181 (E.D.Pa.1970); Texas v. United States Steel Corporation, 546 F.2d 626, 630 (5th Cir. 1977); Cf. Baker v. United States Steel Corporations, 492 F.2d 1074 (2d Cir. 1974). The Commonwealth of Pennsylvania has failed to carry its burden in showing either that its need is compelling or that its need can be particularized. In effect, it seeks the wholesale production of all grand jury transcripts, documents, and subpoenas as an aid to discovery, but usefulness and relevancy are insufficient to override the strong and traditional policy requiring secrecy.
The Commonwealth relies on a number of recent decisions that have allowed disclosure of grand jury materials to plaintiffs in treble-damage antitrust actions. Particularly, it relies on Illinois v. Sarbaugh, 552 F.2d 768 (7th Cir.), Cert. denied sub nom., J. L. Simmons Co. v. Illinois, 434 U.S. 889, 98 S. Ct. 262, 54 L. Ed. 2d 174 (1977) and Petrol Stops Northwest v. United States, 571 F.2d 1127 (9th Cir.), Cert. granted, 437 U.S. 902, 98 S. Ct. 3087, 57 L. Ed. 2d 1132 (1978), however, these cases are inapposite as the key factor in both was the disclosure of the grand jury materials to the opposing side. The inequitable result of one side having exclusive access to a storehouse of relevant information that has led courts such as Sarbaugh and Petrol Stops
to permit disclosure of grand jury materials is simply absent in the present case.
The Commonwealth asserts that it has made the sufficient showing of compelling necessity on two bases. First, it argues a compelling need exists for using the grand jury testimony to impeach witnesses, to refresh their recollections, and to test their credibility. Second, it asserts as a well established principle that the invocation of the Fifth Amendment by witnesses at proceedings in connection with the civil antitrust cases establishes a particularized need for the release of their grand jury testimony and that eight witnesses in this case have relied on the privilege.
Concerning the first argument, it is a correct statement that many courts find disclosure to be proper if the grand jury material is needed for purposes such as impeaching a witness or refreshing recollections. The problem with the Commonwealth's position is that it has failed to show a particularized need. For example, in Petrol Stops, plaintiff showed that some of the answers defendants made to its interrogatories might contradict the charges in the indictment and pointed out inconsistencies between the government's bill of particulars and statements made in depositions, 571 F.2d at 1131, and in Illinois v. Harper and Row Publishers, Inc., 50 F.R.D. 37, 42 (N.D.Ill.1969), the particularized need was found in discrepancies and memory failures of certain witnesses.
In short, the Commonwealth has failed to particularize its request by showing exigent circumstances, but rather seeks an overbroad unparticularized general discovery type disclosure similar to the one rejected in Texas v. United States Steel Corporation with the statement: "It is to be whole hog or none, and none it is." 546 F.2d at 631.
The second asserted showing of particularized need because of witnesses invoking the Fifth Amendment in the treble damage action is likewise unpersuasive. In support of this argument, Plaintiff cites one case, United States v. Borden, Inc., 1976-1 Trade Cas. §§ 61,177 at 70,341-342 (D.Ariz.1976). The criminal proceeding in Borden terminated with pleas of nolo contendere by all defendants and subsequently in the civil action fourteen individuals who had previously testified before the federal grand jury refused to answer questions at depositions on the basis of the Fifth Amendment. After plaintiffs unsuccessfully sought to compel the deposition ...