order from the court providing for the disclosure of the stock subscription summary.
Even assuming, arguendo, that the summary of the stock subscription records does not provide the reader with any insight into the inter sanctuary of the grand jury proceeding, the use of the information violates a fundamental principal announced by the Supreme Court in the Sells decision, namely, automatic disclosure may invite abuses of the grand jury process
by allowing the government to bypass the normal discovery rules and procedures used in civil litigation.
Counsel for defendants argues that "grand jury material" should be suppressed and the complaint dismissed. Reported case law involving the use of illegal grand jury material in subsequent civil actions is scant. Our research has located only one reported case which occurred, appropriately enough, in this district. Kocher Coal Company v. Marshall, 505 F. Supp. 156 (E.D.Pa.1981) involved the use of grand jury material in an administrative proceeding by the Department of Labor to issue citations and fines against the plaintiff coal company. Plaintiff petitioned the court requesting an order declaring that the reliance on the grand jury material to issue a citation was unlawful and that the citation was invalid, null and void. Id. at 158.
The court refused to grant plaintiff's request stating that sufficient evidence was developed to show that the Department of Labor may have "sterilized the basis of the citation" through other evidence so that the citation would still be valid despite the subsequent illegal use of grand jury material. Id. at 159.
Merely because the plaintiff is in possession of grand jury materials does not mandate that the complaint be dismissed. Defendants must prove (1) that this information was used by the government, and (2) that it was essential evidence to aid them in stating a claim. Our own observation is that this information was not necessary nor would it have affected the legal results of any of the motions decided by this court to date.
The court will issue an appropriate order enjoining the government from any further use of this material, however, the order is not to be interpreted to preclude the government from using the discovery mechanisms available to it to secure this same information. Both parties are entitled to discovery of all evidence relevant in assisting them in the presentation of their claims.
II. FBI Interviews With Potential Grand Jury Witnesses.
At issue within the FBI report are the purportedly prepared statements drafted by three grand jury witnesses that state they (1) were drafted in contemplation of being read to the grand jury and (2) summarized the information provided to the FBI agents who interviewed them. The court will address each statement individually.
Witness A was interviewed by FBI agents three times. The first interview was on November 13, 1979, the second January 10, 1980 and the last was on January 15, 1980. This person was represented by counsel
at each interview. The summary of these interviews are not the by product of any grand jury process but the result of an independent investigation by the FBI. As the holding in Catania indicates, independent investigation, even if undertaken with a view toward presenting the information to a grand jury, does not make it grand jury material.
The FBI report also contains a statement prepared by witness A that states it was done so with the intent of reading it to the jury. Defendants believe this prepared statement is grand jury material. The court disagrees for these reasons.
First, the statement is not signed or dated so the government has no insight into whether it was ever presented to a grand jury. Second, the statement summarizes the same information provided to the FBI during its interviews with the person. No additional information on the defendants is included in this statement. It's inclusion within the FBI report does not aid the plaintiffs nor provide a detriment to the defendants since the information was available from the investigative summaries derived from the previous interviews.
This unsigned and undated statement is not grand jury material, it was not derived from the grand jury process and even if it were, in light of the fact that the same information was already in the possession of the government, it is but harmless error that it was included in the report.
Witness B was interviewed on February 6, 1980 by the FBI. A detailed summary of the interview was prepared by the agent. It appears from a notation within the FBI report that this witness testified to the grand jury approximately six months later on June 19, 1980. The information derived from the February 6, 1980 interview is the product of an independent investigation and not grand jury material. This witness also prepared a statement to be read to the grand jury summarizing the information provided in the February 6, 1980 interview. The statement according to the FBI was signed on June 19, 1980 and the original is on file in a local FBI office. The information in the unsigned and undated document is the same as provided the FBI on February 6, 1980. For the same reasons as stated for Witness A, the court finds that this information is not grand jury material.
As with the previous two witnesses, the circumstances surrounding the FBI investigation are similar. Witness C was interviewed twice, the first time being January 10, 1980 and the last time was on January 15, 1980. The FBI report indicates that an original of the unsigned and undated prepared statement summarizing the information from the two interviews is on file in a local FBI office. It is signed by the witness and dated June 19, 1980. As with the previous two witnesses interviews and statements, the court finds that the interviews are the product of an independent investigation and that the unsigned and undated statement is not grand jury material.
For these reasons, we will uphold the Magistrate's findings in the Report and Recommendation that the material derived from the FBI investigation is not grand jury material and that this civil action is not based on the unsigned and undated statements.