D. Reagoso, Esquire, who was counsel for Charles R. Peck, one of the Nardini defendants who assisted the plaintiff with its investigation. The plaintiff also states that after the Nardini defendants were sentenced, an F.B.I. agent turned over to the plaintiff copies of certain payment records of Vincent J. Salla, which had been reviewed by the grand jury.
The defendants in this case principally argue that they are entitled to injunctive relief because the plaintiff's possession and use of the grand jury testimony and exhibit of Salla's payment records constitute a violation of Fed.R.Crim.P. 6(e), which concerns the recording and disclosure of grand jury proceedings.
Rule 6(e)(2) provides a general rule of secrecy, which mandates that no obligation of secrecy may be imposed on any person other than a grand juror, a stenographer, an interpreter, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the Government, or Government personnel deemed necessary to assist an attorney for the Government. Rule 6(e)(3)(C) provides that disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made when so directed by a court in connection with a judicial proceeding and that if a court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in the manner the Court directs.
The plaintiff contends that no violation of Fed.R.Crim.P. 6(e) has occurred; that Rule 6(e) expressly states that no obligation of secrecy may be imposed except in accordance with this rule; that the defendants have not cited a case that holds, or even suggests, that a violation of Rule 6(e) has occurred under the circumstances presented by this case in which the issue is whether having properly received Salla's grand jury testimony, one of the Nardini defendants was free to do with it as he pleased; and that the cases cited by the defendants are inapplicable to the instant case because they refer generally to the principles of grand jury secrecy.
The Court observes that this case does not present a typical motion for production of grand jury material in accordance with Rule 6(e). Salla's grand jury testimony and his payment records are not in the possession of the Government, as is usually the case. See Fed.R.Crim.P. 6(e)(i); United States v. Procter & Gamble Co., 356 U.S. 677, 2 L. Ed. 2d 1077, 78 S. Ct. 983 (1958). Moreover, the defendants' argument regarding the secrecy of grand jury testimony is not persuasive since the transcript and payment records are already out of the Government's custody and in the plaintiff's possession and parts of this material have been referred to in the Nardini indictment, in open court at the Nardini defendants' change of plea hearings, and in the Government's sentencing memorandum of the Nardini defendants, which are all now a matter of public record. Whatever secrecy would usually attach to grand jury materials has in effect already been abrogated. Accordingly, the Court concludes that this case does not fit within the pattern of the traditional rule requiring a showing of particularized need pursuant to Fed.R.Crim.P. 6(e) and that legal authority regarding policy considerations of grand jury secrecy and disclosure of grand jury materials is inapplicable.
The Court believes that the defendants have not shown that the plaintiff's possession and use of Vincent J. Salla's grand jury testimony and payment records are improper. Moreover, the Court believes that the defendants have not shown that they will suffer irreparable harm if the Court does not enjoin the plaintiff's possession and use of Salla's testimony and records, that there is a likelihood that they will ultimately prevail on the merits, and that there is a lack of substantial harm to the plaintiff and to the public interest if the Court grants their application for injunctive relief. The Court concludes therefore that the defendants have not met their burden with respect to their application for a preliminary injunction and it is denied.
B. Plaintiff's motion for partial summary judgment
The plaintiff seeks partial summary judgment against the defendants as to liability with respect to Count I, II, III, and VI, which involve RICO, and Counts VIII, X, and XI, which concern common law fraud, tortious interference with contractual and agency relations, and unjust enrichment. In support of its motion for partial summary judgment, the plaintiff submitted an appendix, which includes the following: (1) the indictment in United States v. John J. Nardini, Criminal No. 84-00150-01; (2) the transcript of the July 9, 1984 change of plea hearing of the Nardini defendants; (3) the Judgment and Probation/Commitment Orders of the Nardini defendants; (4) the testimony of Vincent J. Salla before the grand jury; (5) the affidavit of Rodney D. Johnson, the Vice President for Financial Affairs and Treasurer in charge of the physical plant, purchasing, and accounting of the plaintiff; (6) the affidavit of C. Robert Harrington, the plaintiff's Associate Vice President for Personnel Administration; (7) the affidavit of John J. Nardini, a former purchasing agent in the plaintiff's purchasing department who entered a guilty plea in United States v. John J. Nardini ; (8) the statement of William T. Street, a former employee in the plaintiff's physical plant and purchasing department who entered a guilty plea in United States v. John J. Nardini ; and (9) Vincent J. Salla's payment records that were reviewed by the grand jury.
A motion for summary judgment should be granted only if the pleadings and depositions, answers to interrogatories, admissions on file, together with the affidavits show that there is no genuine issue as to any material fault and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The Court may consider any material which would be admissible at trial.
The defendants have filed a response to the plaintiff's motion for partial summary judgment in which they contend that the plaintiff's motion should be denied as premature and in the alternative, argue that the motion should be continued pursuant to Fed.R.Civ.P. 56(f) until twenty days after discovery is completed.
Rule 56(f) provides relief to a party unable to respond to a motion for summary judgment because of insufficient opportunity for discovery. The purpose of the rule is to prevent premature grants of summary judgment in cases where, given adequate time to obtain discoverable material from the movant, the party opposing the motion might be able to establish genuine issues of fact which would preclude summary judgment. McVan v. Bolco Athletic Co., 600 F. Supp. 375, 378 (E.D.Pa. 1984). See Ward v. United States, 471 F.2d 667, 670-71 (3d Cir. 1973). Moreover, courts have held that a continuance of the motion for purpose of discovery should be granted as a matter of course when Rule 56(f) affidavits have been filed setting forth specific reasons why the moving party's affidavits in support of a motion for summary judgment cannot be responded to, and the facts are in the possession of the moving party. Mid-South Grizzlies v. National Football League, 720 F.2d 772, 779 (3d Cir. 1983), cert. denied, 467 U.S. 1215, 104 S. Ct. 2657, 81 L. Ed. 2d 364 (1984). See Costlow v. United States, 552 F.2d 560, 564 (3d Cir. 1977).
In an affidavit submitted on behalf of all of the defendants, Vincent J. Salla states that the defendants seek to depose the plaintiff's former and current employees whose affidavits and statements are contained in an appendix which the plaintiff submitted with its motion for partial summary judgment.
The Court believes that the defendants have shown their need for discovery and the Court will therefore order a continuance of the plaintiff's motion until twenty days after discovery is completed. The Court also notes that it did not find the plaintiff's memorandum of law in support of its motion for partial summary judgment to be very helpful. The Court suggests that if the plaintiff does not withdraw its motion for partial summary judgment, the plaintiff should submit another memorandum in which it identifies those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.
III. Plaintiff's motion to compel discovery
Pursuant to Rules 30 and 34 of the Federal Rules of Civil Procedure, the plaintiff served the defendants with notices of depositions of Vincent J. Salla and Joseph A. Salla, and with its first request for production of documents. With respect to the depositions, the defendants assert that the noticed depositions were adjourned and never rescheduled and that the depositions of any defendant prior to the Court's ruling on their application for a preliminary injunction will be wasteful and duplicative. In addition, the defendants have refused to produce documents in response to three requests because they contend that document production will undermine their rights if they ultimately prevail on their application for a preliminary injunction regarding the grand jury materials. They also object on the grounds of relevancy, privilege, undue burden, and insufficient identification of information sought.
Concerning the depositions of Vincent and Joseph Salla, the Court believes that the defendants' argument is now moot because in the Order accompanying this Memorandum, the Court has denied the defendants' application for preliminary injunction.
With respect to the document request, the defendants object to all eight requests, which provide:
1. All documents which refer, relate or otherwise pertain to any business or personal dealings of any nature with or payments to:
a. Temple University;