liminary to a judicial proceeding a sufficient showing of particularized need could have been made at the time when I determined that, indeed, such a showing had been made.
Finally, as to the first question posed by plaintiffs whether this application should have been made ex parte or treated ex parte I do not find a ground for faulting the agency for making its application to me ex parte. I understand from the legislative history of Rule 6(e) as amended in 1977 that the Senate Judiciary Committee was explicit in contemplating that applications could be made ex parte in order to maximize grand jury secrecy.
I do have grounds, though, I think, for faulting myself in treating the application ex parte. The cases, though by no means uniform, do suggest that some judges have opened up ex parte applications to the adversary process and that is well reflected, for example, in In re: Grand Jury Investigation, 414 F. Supp. 74 (D.C.N.Y.), a decision by Judge Milton Pollack in the Southern District of New York in 1976. Certainly our legal institutions presuppose a preference for adversariness over ex parte ness whenever that can be reasonably achieved, and I think it could have been achieved in this case had I had the wit to so view it at the time the application was made to me. This second chance which I now have to review this matter leads me to think that if an application of this sort were to come before me again ex parte, I would be strongly disposed to translate it into an adversary process before ruling on the application. Had I done so last time, it seems to me that I might conceivably have received at an earlier time the light which has now, so it seems to me, been shed on the matter, courtesy of counsel. I do want to make it clear that I mean today counsel for MSHA as well as counsel for the plaintiffs.
Well, with these observations, I, therefore, determine now that I am granting as of this moment the application to vacate the orders of release of July 20, 1979, and that of September. Whether any further relief is required at this time is something I would like not to try to make a hasty determination with respect to.
I think at a minimum the plaintiffs are entitled to substantially the relief requested in the draft order which was submitted to me which requires the return by the defendants of the transcripts themselves and of all excerpts, notes, summaries, et cetera, and enjoins any further disclosure either within or without the agency of any of the matters which those who have been privy to the grand jury transcripts themselves or any notes or summaries made therefrom may have had the advantage of.
I am not going to try, as of this moment from the bench, to draft an appropriate order. I will ask counsel for plaintiffs and for the agency to try to agree upon a form of order, bearing in mind both the proceedings which are still pending before Judge Troutman and the possibility that MSHA may not perceive the wisdom in my disposition and may wish to go to the Court of Appeals for a further view by it of what the rules are prevailing in this circuit.
If there is no further question, and I hope there is none, I am going to take my leave of you because I have to catch a train in a very few minutes.
Does that leave you enough to deal with for the time being and may I put it to the joint efforts of counsel to advise me what, if anything, further needs to be done?
AND NOW, to wit, this 26 day of June 1980, upon consideration of Movant's Motion to Vacate Order, it is hereby Ordered and Decreed that the Orders of this Court, dated July 20, 1979 and September 18, 1979, shall be, and hereby are, revoked and rescinded; and it is further Ordered and Decreed that the Grand Jury transcripts which were released pursuant to said Orders, and all copies thereof, including all abstracts and digests of said transcripts, shall be forthwith returned to the custody of this Court; and it is further Ordered and Decreed that the contents of said transcripts shall not be quoted, reproduced, para- phrased, or otherwise disseminated in any manner whatsoever by the United States Department of Labor, by the Federal Mine Safety and Health Administration, by any representatives of said entities, or by any other person who gained knowledge of said transcripts or into whose possession said transcripts may have been delivered.