There is no dispute between the parties that plaintiff's attorneys could not receive grand jury material without first obtaining a court order pursuant to Rule 6(e)(3)(C)(i).
Contentions diverge, however, on whether investigators in the civil case did, in fact, receive or improperly obtain any such evidence which culminated in the initiation of this law suit. Because it is settled federal policy that the grand jury system requires secrecy of grand jury proceedings, In Re Grand Jury Matter (Catania), 682 F.2d 61, 63 (3d Cir. 1982), the court held an in camera proceeding on November 5, 1982. During this proceeding, members of the Strike Force answered questions submitted to the court by defense counsel regarding their knowledge and participation in the criminal investigation and the civil law suit. Thereafter, Mr. Kaplan separately answered questions submitted by defense counsel regarding his use or possible use of grand jury material.
Based on the answers to these questions and others initiated by the court, I am satisfied of the Government's good faith in conducting the grand jury investigation and in the good faith of the attorneys involved in this civil action. See In Re Grand Jury Subpoenas, April, 1978, Etc., 581 F.2d 1103, 1106 (4th Cir. 1978), cert. denied, 440 U.S. 971, 59 L. Ed. 2d 787, 99 S. Ct. 1533 (1979). Where improper disclosure of grand jury material occurs, either a contempt proceeding, see United States v. Procter & Gamble, 356 U.S. 677, 680, 2 L. Ed. 2d 1077, 78 S. Ct. 983 (1958); United States v. Schiavo, 375 F. Supp. 475, 478 (E.D. Pa. 1974), aff'd 506 F.2d 1053 (3d Cir. 1974), or a motion to suppress is an appropriate remedy. See In Re Grand Jury Investigation No. 78-184, 642 F.2d 1184, 1188 (9th Cir. 1981), cert. granted, sub nom. United States v. Sells, Inc., 456 U.S. 960, 72 L. Ed. 2d 483, 102 S. Ct. 2034 (1982). Dismissal of the civil action is usually unwarranted.
Finally, in view of Mr. Kaplan's position as lead trial attorney, intrusion into his knowledge regarding the prosecution of this action will not be allowed in view of the court's inquiry and findings herein.
An appropriate order follows.
AND NOW, this 6th day of December, 1982, for reasons stated in the accompanying Memorandum, it is hereby ORDERED that Plaintiff's Motion for a Protective Order is GRANTED.