Petition for Writ of Mandamus filed December 29, 1978
Before Gibbons and Higginbotham, Circuit Judges, and Markey,*fn* Chief Judge of the Court of Customs and Patent Appeals.
We here consider a petition by NL Industries, Inc. (NL) for a writ of mandamus to compel the nominal respondent, Daniel J. Snyder, Jr., District Judge, to consider the merits of NL's motion for a protective order respecting certain documents. The documents were furnished to a grand jury by NL, pursuant to a subpoena. When the grand jury indicted several parties, not including NL, the government proposed to disclose to the defendants all documents produced before it. NL then moved for a protective order to prevent or limit disclosure of 54 documents which had been subpoenaed from it. Without examining the documents or considering the merits of NL's objections to disclosure, the district court denied the motion. This petition followed. We conclude that the district court should have examined the documents and considered the merits of NL's objections, and we direct that he do so.
I. FACTS AND PROCEEDINGS IN THE DISTRICT COURT
Between December 1976 and September 1978 a grand jury in the Western District of Pennsylvania investigated alleged price fixing in the titanium metals industry. In the course of that investigation the grand jury subpoenaed documents from a number of corporations. A subpoena duces tecum to NL requested, among other things,
All documents which relate or refer to the sale, acquisition, merger or consolidation of any interest in any company engaged in the production or sale of titanium products, or any proposed or contemplated sale, acquisition, merger or consolidation of such an interest.
Although the subpoena was rather broad when considered in light of possible relevance to a price-fixing investigation, NL complied, furnishing thousands of papers, including documents dealing with its 50% Joint ownership, with Allegheny Ludlum Steel Co., of a titanium producer, Titanium Metals Corporation of America (TMCA).
On September 28, 1978, the grand jury indicted four corporations and five individuals for price fixing in violation of the Sherman Act, and named TMCA as an unindicted co-conspirator. NL was neither indicted nor named as a co-conspirator. Shortly after the return of the indictment, several defendants moved pursuant to Fed.R.Crim.P. 16(a)(1)(C) for discovery of certain documents. The response of the government was to move on November 1, 1978, for the entry of an order granting each defendant access to all grand jury documents. The government notified those firms, including NL, who had responded to subpoenas duces tecum that it now proposed to make all the grand jury documents available to the defendants. In response to the government's notice, NL objected to disclosure of certain documents. It pointed out that it is engaged in producing steel products, as are several of the defendants, and that it would be prejudiced by the unprotected disclosure of the documents, containing as they do highly confidential and proprietary business information concerning the financial affairs of NL and TMCA, as well as business policy decisions by top executives of both companies. NL moved for a protective order.
At a pretrial hearing on November 29, 1978, the district court entertained various motions regarding the requested grand jury documents. RMI Company, one of the defendants, proposed an order that would place all grand jury documents in a document depository, available to defense counsel, defense experts, and any party or its officers or employees required to work on the litigation. NL sought a more restrictive protective order which would have limited the disclosure of certain critical documents solely to defense counsel and outside experts employed by defense counsel, at least absent a showing of materiality to the defense. The district court ruled against NL, which then filed a motion for reconsideration, restricting its application to 54 specific documents out of the thousands it had furnished. The court acknowledged that it might be naive to assume that defendants could so isolate confidential information that they would not, as competitors of NL, gain commercial advantage through the proposed disclosure. Nevertheless, on December 14, 1978, without examining the 54 documents, or making any determination of their materiality pursuant to Rule 16(a)(1)(C), the court denied NL's motion and entered an order allowing access to all grand jury documents by defendants and their counsel "solely for the purposes of prosecuting or defending against the criminal charge in this action . . . (not) for any commercial advantage." The NL petition for mandamus followed.
II. PROPRIETY OF MANDAMUS RELIEF
Under the All Writs Act, 28 U.S.C. § 1651, all federal courts "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." The statute is conjunctive; the writ must be both in aid of jurisdiction and agreeable to the law governing the use of prerogative writs. Since this court does not have a general original jurisdiction, we can issue a writ of mandamus only in aid of some present or potential exercise of appellate jurisdiction. Roche v. Evaporated Milk Assn., 319 U.S. 21, 25, 63 S. Ct. 938, 87 L. Ed. 1185 (1943). While that rule does not require that the action complained of in the mandamus petition be itself an appealable order, See, e.g., id.; United States v. Mellon Bank, N. A., 545 F.2d 869, 872 (3d Cir. 1976), the action must nevertheless involve subject matter to which our appellate jurisdiction could in some manner, at some time, attach. See, e.g., United States v. Helstoski, 576 F.2d 511, 516 (3d Cir.), Cert. granted, 439 U.S. 1045, 99 S. Ct. 719, 58 L. Ed. 2d 704 (1978); In re United States, 348 F.2d 624, 625 (1st Cir. 1965). Thus we can consider the petition only after first identifying the way in which the action complained of affects some appellate jurisdiction, present or future.*fn1
In the pending criminal case the district court's grant of defendants' Rule 16 request could not be reviewed at the behest of the parties even after a conviction. The government proposed the disclosure of all grand jury documents, and thus would not be aggrieved. The defendants were being tendered even greater discovery than they had originally sought, and thus could not press the ruling as a ground for reversal of a conviction.*fn2 Our potential appellate jurisdiction over the judgment of sentence, 28 U.S.C. § 1291, and over other aspects of the criminal proceedings, 18 U.S.C. § 3731, is therefore irrelevant. We can only entertain the petition if NL's own interest in the ruling is somehow within our potential appellate jurisdiction.
We conclude that NL meets this requirement. In Perlman v. United States, 247 U.S. 7, 38 S. Ct. 417, 62 L. Ed. 950 (1918), the Court held that the owner of exhibits could intervene in a criminal grand jury proceeding to object to their disclosure on a ground of privilege, even when the exhibits were in the possession of a third party. Moreover, the Court held that the order denying intervention and privilege was collaterally final for purposes of appeal. See also Gravel v. United States, 408 U.S. 606, 608 n.1, 92 S. Ct. 2614, 33 L. Ed. 2d 583 (1972). The Perlman rule has also been applied in a trial, rather than grand jury context, to allow an intervention and appeal to challenge the production of subpoenaed documents. See United States v. Nixon, 418 U.S. 683, 688, 690-92, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). We have applied the same principle in permitting intervention for the assertion of claims of privilege when subpoenas are addressed to third parties. In re Grand Jury Investigation (Intervenor A), 587 F.2d 589 (3d Cir. 1978); In re Grand Jury Proceedings (Cianfrani), 563 F.2d 577 (3d Cir. 1977); In the Matter of Grand Jury Impaneled Jan. 21, 1975 (Freedman), 541 F.2d 373 (3d Cir. 1976). Thus it is settled law that persons affected by the disclosure of allegedly privileged materials may intervene in pending criminal proceedings and seek protective orders, and if protection is denied, seek immediate appellate review. In this instance, while NL did not file a formal motion for intervention, it was served with notice of the government's motion to disclose grand jury documents, and its participation was invited by the court. Like Mr. Nixon in United States v. Nixon, supra, NL appeared specially in the proceedings and was treated, De facto, as an intervenor. Moreover, ...