In Re Sealed Case No. 98-3077

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued July 21, 1998 Decided August 3, 1998

In re: Sealed Case No. 98-3077

Consolidated with

98-3078, 98-3079, 98-3081

---------

On Petition for Writ of Mandamus

Kenneth W. Starr, Independent Counsel, argued the cause

for petitioner, with whom Donald T. Bucklin, Scott T. Kragie,

and Andrew W. Cohen were on the petition and reply.

David E. Kendall argued the cause for respondent William

J. Clinton, with whom Nicole K. Seligman, Max Stier, Robert

S. Bennett, Carl S. Rauh, Amy Sabrin, Katharine S. Sexton,

W. Neil Eggleston, William J. Murphy, and William Alden

McDaniel, Jr., were on the response.

Before: Wald, Silberman, and Henderson, Circuit Judges.

Opinion for the Court filed Per Curiam.

Per Curiam: The Independent Counsel (IC) petitions for a

writ of mandamus directing the district court to vacate its

orders authorizing [

] * to subpoena documents from the IC,

conduct limited depositions of the IC and his staff, and

subpoena the IC and his staff for similarly limited testimony

at a show cause hearing relating to alleged violations of the

grand jury secrecy rule. We conclude that we have power to

determine the issues presented by the petition; resolving

those issues in a substantially different way than the district

court did, we issue the writ.

I.

[

]1 filed motions in the district court requesting that

the court order Independent Counsel Kenneth W. Starr to

show cause why he, and/or his staff, should not be held in

contempt for violation of Federal Rule of Criminal Procedure

6(e)(2), which prohibits attorneys for the government from

disclosing confidential grand jury information.2 The movants

alleged that the IC and his staff had divulged such informa-

tion to the press, and provided the court with several news

reports about the investigation wherein a reporter describes

the source of the information as, to quote one illustrative

example, "a source close to Starr." Appendix to Opposition

to Emergency Motion to Stay the District Court's Orders, at

Tab 1 (Thomas Galvin, Monica Keeping Mum--For Now

Fends Off Query On Internal Affairs, Daily News, Jan. 23,

1998, at 26). The district court held that such news reports

established a prima facie case of a violation of Rule 6(e)(2)

because the "media reports disclosed information about 'mat-

ters occurring before the grand jury' and indicated that the

sources of the information included attorneys and agents of

__________

* Bold brackets signify sealed material.

1 [

]

2 Rule 6(e) provides in relevant part: "[A]n attorney for the

government ... shall not disclose matters occurring before the

grand jury, except as otherwise provided in these rules.... A

knowing violation of Rule 6 may be punished as a contempt of

court." Fed. R. Crim. P. 6(e)(2). The IC, as an "attorney for the

government," is subject to the secrecy requirements of Rule 6(e)(2).

In re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994).

the Government." Order to Show Cause, Misc. No. 98-55

(June 19, 1998), at 2 (quoting Barry v. United States, 865

F.2d 1317, 1321 (D.C. Cir. 1989)).

The district court read our decision in Barry as holding

that once a prima facie violation of Rule 6(e)(2) is established,

the court is required to conduct an adversarial hearing at

which the prosecutor must show cause why he should not be

held in contempt. Order to Show Cause at 9, (citing Barry,

865 F.2d at 1321). Accordingly, the district court issued the

two procedural orders at issue in this petition. The court

first scheduled a show cause hearing. Order to Show Cause

at 10. In the second order, it clarified the nature of the show

cause hearing. The IC was ordered to produce, on July 11,

the documents requested by movants, with any Rule 6(e)

material redacted.3 The court ruled that movants would be

permitted to depose the IC and several of his staff, prior to

the adversarial hearing, on three subject areas: (1) the IC's

policy regarding press contacts, (2) actual contacts with the

press by the IC or his staff, and (3) specific representations

made by the IC about the first two subject areas. The court

further ruled that movants could subpoena the IC and several

of his staff for testimony at the show cause hearing, with the

subject matter of the questioning to be limited in the same

manner as during the depositions. Mem. Order, Misc. No.

98-55 (June 26, 1998), at 2. Finally, the court set forth the

procedure to be followed at the show cause hearing: the

hearing would begin with an ex parte presentation by the IC

of any Rule 6(e) material the IC deems necessary to rebut the

prima facie case; after the IC's presentation, movants' coun-

sel would join the hearing, cross-examine the IC and his

witnesses, and present their evidence. See id. at 4.

The IC filed a notice of appeal, followed by a motion for

stay pending appeal. The district court subsequently de-

clined to stay its orders, reasoning that the factors for

granting a stay pending appeal were not met. Order, Misc.

__________

3 Discovery of documents from the IC was initially scheduled to

begin on June 30, 1998. At the request of the IC, the district court

stayed the discovery order until July 11.

No. 98-55 (July 9, 1998). Specifically, the court found that

the IC's likelihood of prevailing on the merits of its appeal

was low given the court's conclusion that the orders are not

even appealable; that the IC would not be irreparably

harmed by the orders because the orders allowed him to

redact any Rule 6(e) material and thus he would not be

required to provide any confidential investigative material to

movants; that the harm to movants of granting a stay was

substantial because without an immediate show cause hear-

ing, there would be no deterrence of future leaks in the

interim before the appeal; and that the public interest in

stopping leaks and in preserving respect for the judiciary's

orders sealing grand jury proceedings outweighed any delay

that might be caused by the show cause hearing and its

associated discovery process.

On July 9, 1998, the same day the district court denied the

IC's motion for a stay pending appeal, the IC petitioned us

for mandamus relief.4 Because discovery was set to begin on

__________

4 Petitioner styles his petition a "Petition for Writ of Prohibi-

tion" rather than a "Petition for Writ of Mandamus." Because "the

grounds for issuing the writs are virtually identical," In re Halkin,

598 F.2d 176, 179-80 n.1 (D.C. Cir. 1979), and because "mandamus"

is the more familiar term, we prefer to use it.

Petitioner simultaneously filed an emergency motion to stay the

district court's orders pending appeal. Petitioner argues in that

motion that we have jurisdiction to review the district court's

orders--which he concedes are interlocutory--under the collateral

order doctrine. Emergency Motion of the United States of Amer-

ica at 7 (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541, 546-47 (1949)). We have recently described the criteria for the

collateral order doctrine and the writ of mandamus as "similar." In

re Minister Papandreou, 139 F.3d 247, 250 (D.C. Cir. 1998); see

also In re Kessler, 100 F.3d 1015, 1016 (D.C. Cir. 1997) ("In

practical terms, the difference between the two, at least in this

context [of review of a discovery order], is mainly semantic.").

Ease of analysis, as will become clear in Part II.B. infra, dictates

that we discuss petitioner's arguments using the framework for

mandamus relief. Cf. Papandreou, 139 F.3d at 250 (discussing the

criteria for both mandamus relief and the collateral order doctrine,

July 11, we ordered an administrative stay of the district

court's procedural orders so that we would have sufficient

opportunity to consider the merits of the petition for writ of

mandamus. Order, No. 98-3077 (July 10, 1998). We now

conclude that we have power to determine the issues present-

ed in the petition; based on our analysis of those issues, we

issue the writ.

II.

The writ of mandamus has been described as "an extraordi-

nary remedy, to be reserved for extraordinary situations."

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S.

271, 289 (1988) (citing Kerr v. United States Dist. Court, 426

U.S. 394, 402 (1976)).5 As we recently observed, liberal use of

the writ would "undercut the general rule that courts of

appeals have jurisdiction only over 'final decisions of the

district courts,' 28 U.S.C. s 1291, and would lead to piecemeal

appellate litigation." In re Minister Papandreou, 139 F.3d

247, 249 (D.C. Cir. 1998). Not surprisingly, the extraordinary

nature of mandamus relief is reflected in the strict criteria for

its issuance: Mandamus will issue only if the petitioner bears

his "burden of showing that the petitioner's right to issuance

of the writ is clear and indisputable," Gulfstream, 485 U.S. at

289 (citation and internal quotation marks omitted), and that

"no other adequate means to attain the relief" exist, Allied

Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). See

Papandreou, 139 F.3d at 250.

A.

We take the latter requirement first. Respondent, refer-

ring us to our opinion in In re Kessler, 100 F.3d 1015 (1997),

__________

and then embarking on an analysis framed solely in terms of

mandamus without articulating a reason for preferring one frame-

work over the other).

5 Statutory authority for issuing the writ of mandamus is

provided by 28 U.S.C. s 1651 (1994): "The Supreme Court and all

courts established by Act of Congress may issue all writs necessary

or appropriate in aid of their respective jurisdictions and agreeable

to the usages and principles of law."

urges that petitioner has an adequate alternative means to

challenge the district court's discovery orders. As respon-

dent correctly observes, we stated in Kessler that "in the

ordinary case, a litigant dissatisfied with a district court's

discovery order must disobey the order, be held in contempt

of court, and then appeal that [final] order on the ground that

the discovery order was an abuse of discretion." Kessler, 100

F.3d at 1015; see also Papandreou, 139 F.3d at 250 ("If held

in contempt, a litigant then has a final order from which he

may appeal, asserting any legal flaws in the underlying

discovery order."); In re: Sealed Case, 141 F.3d 337, 339

(D.C. Cir. 1998). Respondent argues that the disobedience

and contempt path to appeal is an adequate means to relief,

and that petitioner must therefore pursue it rather than

seeking the extraordinary writ of mandamus.

Unfortunately, in Kessler, Papandreou, and In re: Sealed

Case, the parties did not bring to our attention a longstanding

distinction between civil and criminal contempt orders issued

against a party to a litigation. While a criminal contempt

order issued against a party is considered a final order and

thus appealable forthwith under 28 U.S.C. s 1291, Bray v.

United States, 423 U.S. 73, 76 (1975); Matter of Christensen

Eng'g Co., 194 U.S. 458, 461 (1904); SEC v. Simpson, 885

F.2d 390, 395 n.7 (7th Cir. 1989), a civil contempt order issued

against a party is typically deemed interlocutory and thus not

appealable under 28 U.S.C. s 1291, Fox v. Capital Co., 299

U.S. 105, 107 (1936); Doyle v. London Guar. & Accident Co.,

204 U.S. 599 (1907); International Ass'n of Machinists &

Aerospace Workers v. Eastern Airlines, Inc., 849 F.2d 1481,

1484 (D.C. Cir. 1988); Duell v. Duell, 178 F.2d 683, 687 (D.C.

Cir. 1949) (describing the rule as "thoroughly settled"); In re

Joint E. & S. Dists. Asbestos Litig., 22 F.3d 755, 765 (7th Cir.

1994). Indeed, we reaffirmed the rule that a civil contempt

order issued against a party is not appealable as recently as

SEC v. Finnegan, No. 97-5272, 1998 WL 65530, at *1 (D.C.

Cir. Jan. 13, 1998).

The confusion in our caselaw may be a product of several

factors. For one, the authoritative Supreme Court cases on

these issues are rather old and are not frequently cited. For

another, the distinction between civil and criminal contempt

orders for purposes of appealability by a party has been

criticized, see Powers v. Chicago Transit Auth., 846 F.2d

1139, 1141 (7th Cir. 1988) (noting that although "many mod-

ern commentators believe that the rule postponing review [of

a civil contempt order issued against a party] is unduly harsh,

... the rule is too well established to be changed by us.");

15B Charles Alan Wright, Arthur R. Miller, & Edward H.

Cooper, Federal Practice and Procedure s 3917, at 399-404

(2d ed. 1992) (reviewing the policy debate on the merits of the

distinction), especially in light of the different regime for non-

parties that allows immediate appeals from orders of either

civil or criminal contempt, Petroleos Mexicanos v. Crawford

Enters., Inc., 826 F.2d 392, 398 (5th Cir. 1989); United States

v. Columbia Broad. Sys., 666 F.2d 364, 367 n.2 (9th Cir. 1982)

(citing cases). Most likely, our questionable assumption in

Kessler, Papandreou, and In re: Sealed Case can be traced to

an imprecise footnote from which we quoted: "As a general

rule, a district court's order enforcing a discovery request is

not a 'final order' subject to appellate review. A party that

seeks to present an objection to a discovery order immediate-

ly to a court of appeals must refuse compliance, be held in

contempt, and then appeal the contempt order." Church of

Scientology of Calif. v. United States, 506 U.S. 9, 18 n.11

(1992) (citing United States v. Ryan, 402 U.S. 530 (1971)).

On its face, this passage suggests that any contempt order

issued against a party, whether civil or criminal, is an appeal-

able final order. But it is rather implausible that the Su-

preme Court, in dicta--not to mention in a footnote--meant

to overrule sub silentio the holdings in Fox and Doyle.

Moreover, the case relied on by the Supreme Court, United

States v. Ryan, 402 U.S. 530 (1971), is inapposite. Ryan

involved a recipient of a subpoena duces tecum issued by a

grand jury, who sought to appeal from the district court's

denial of a motion to quash the subpoena. The Court held

that such an order is not appealable, and that appeal could

only be taken from a contempt order that would follow from a

refusal to produce the documents requested in the subpoena.

Id. at 552. It did not distinguish civil from criminal con-

tempt, for there was no need to do so. The case involved a

recipient of a grand jury subpoena, not a party-litigant, and

so did not implicate the Doyle rule.

In any event, we need not definitively resolve the apparent

conflict in our cases as to whether a civil contempt order

issued in the context of an ongoing civil litigation is appeal-

able as a final order. It is enough for us to observe that

there is substantial doubt whether, if squarely presented with

the issue, we would deem such a civil contempt order appeal-

able. Given a district court's discretion whether to hold a

party who refuses to comply with a discovery order in civil or

criminal contempt, "a party who wishes to pursue the disobe-

dience and contempt path to appeal cannot know whether the

resulting contempt order will be appealable." Wright, Mil-

ler & Cooper s 3914.23, at 146. The implication, of course,

is that the disobedience and contempt route to appeal cannot

be labeled an adequate means of relief for a party-litigant.

So too here. The discovery order addressed to petitioner

arises out of a civil proceeding ancillary to a grand jury

investigation, Barry, 865 F.2d at 1321-22, and petitioner is

properly characterized as a party in that civil proceeding.

Petitioner cannot know, ex ante, whether refusal to comply

with the discovery order will result in a civil contempt order

or a criminal contempt order. The uncertainty of this means

to relief bespeaks its inadequacy in this case.

Our conclusion that the disobedience and contempt path to

appeal is inadequate does not answer whether some other

means to relief--besides the writ of mandamus--is adequate

for petitioner. Presumably, a civil contempt order, if issued

against petitioner at the conclusion of the ancillary civil

proceeding, would constitute a final order, appealable under

28 U.S.C. s 1291; it would not be like the civil contempt

orders we discussed above that arise in the course of an

ongoing litigation. The Rule 6(e)(2) ancillary civil proceeding

we established in Barry is a peculiar creature in this regard;

the raison d'etre of the proceeding is a determination by the

district court whether or not to hold the prosecutor in civil

contempt. Respondent argues, therefore, that petitioner

must wait until the conclusion of this ancillary civil proceed-

ing and, if found in civil contempt at that point, seek to appeal

the discovery orders.

The inadequacy of this alternative is apparent upon consid-

eration of the nature of the harm that petitioner alleges will

occur if we allow the procedural orders to stand. Petitioner

contends that if he discloses [

] the grand jury's investigation

may be irreparably harmed. In this respect, petitioner is

asserting something akin to a privilege insofar as "once [the]

putatively protected material is disclosed, the very right

sought to be protected has been destroyed." In re Ford

Motor Co., 110 F.3d 954, 963 (3d Cir. 1997) (citation omitted);

see also Papandreou, 139 F.3d at 251 ("Disclosure followed

by appeal after final judgment is obviously not adequate in

such cases--the cat is out of the bag."). Although we have

not had occasion to address the issue of irreparable harm to

law enforcement from disclosure of arguably "privileged"

material in the context of a mandamus petition, our sister

circuits have concluded that such harm renders appeal after

final judgment an inadequate means to relief from the discov-

ery order. See In re Department of Justice, 999 F.2d 1302,

1305 (8th Cir. 1993) (district court had ordered the FBI to

turn over documents compiled for law enforcement purposes

and assertedly privileged under FOIA, which, if released,

would have irreparably harmed ongoing law enforcement

proceedings); In re Attorney Gen. of the United States, 596

F.2d 58, 60 (2d Cir. 1979) (district court had ordered the

Attorney General to release files disclosing the names of

confidential government informants, arguably protected un-

der the informant's privilege and which, if released, might

have had immediate adverse effects on law enforcement and

intelligence-gathering).

Petitioner submits, moreover, that the district court's pro-

cedural orders, because they involve discovery and an adver-

sarial hearing, will cause significant delay to petitioner's

grand jury investigation as compared to the proposed alter-

nate procedure of an ex parte presentation to the district

court or a special master. In this respect, too, the type of

harm petitioner alleges is irreparable: the burden of discov-

ery and of the adversarial hearing is immediate and could not

be recompensed were petitioner successful in appealing the

procedural orders as part of an appeal from a final judgment

of civil contempt. Petitioner, in effect, is claiming an immuni-

ty from discovery and adversarial process while the grand

jury investigation is in progress. Thus, this case is similar to

Papandreou, 139 F.3d at 250, in which we observed, in the

course of issuing a writ of mandamus to vacate discovery

orders implicating sovereign immunity, that the infliction of

the "burdens" of discovery might cause irreparable harm to

one who asserts an immunity from those very burdens.

Finally, respondent contends, relying on our decision in In

re United States, 872 F.2d 472 (D.C. Cir. 1989), that the IC

has the alternative remedy of seeking relief from the district

court from discovery that the IC is able to demonstrate will

disclose grand jury or investigative secrets. In In re United

States, the district court had expressed a willingness to

determine in camera, item-by-item, whether the state secrets

privilege protected from discovery certain materials request-

ed by a plaintiff suing the government under the Federal

Tort Claims Act, and to allow the government to redact

names from certain documents. We denied the government's

petition for mandamus, in part because "[t]he district court

did not reject the Government's assertion of privilege; on the

contrary, ... the court demonstrated a perceptive under-

standing of and wholesome respect for the state secrets

privilege." Id. at 478. Respondent argues that the district

court here has demonstrated a similar willingness to accom-

modate petitioner's concerns about the confidentiality of the

grand jury investigation: the district court has ordered that

"discovery [is] restricted to matters not covered by Rule

6(e)," Mem. Order (June 26, 1998), at 2, and that "[i]f it

becomes necessary for the OIC to present material covered

by Rule 6(e) during the [show cause] hearing, the OIC may

submit it to the Court at a bench conference or by other

appropriate means," id. at 4.

We think, however, that unlike the district court's proce-

dural protections in In re United States, the district court's

safeguards here do not go far enough to assure us that the

district court will protect the confidentiality interests of the

IC. For example, even if the IC redacted the content of

communications with members of the press to omit grand

jury material, the residual information regarding the identity

of the contact and the time such contact was made would give

rise to inferences about the substance of "matters occurring

before the grand jury." Furthermore, the IC is not troubled

solely by the possibility that Rule 6(e) material might be

disclosed, but also by the prospect of disclosing even the

identities of members of the press with whom the IC and his

staff have spoken[ ]. The district

court's order does not accommodate this concern. Rather, it

explicitly designates "actual contacts with the press by OIC

employees," Mem. Order (June 26, 1998), at 2, as one of the

subject areas on which respondent will be permitted to ques-

tion petitioner and his staff by deposition and at the show

cause hearing. And the district court's order does not as-

suage petitioner's fear that discovery and an adversarial

hearing will divert petitioner's focus--significantly more so

than would an ex parte presentation--from directing the

grand jury investigation at a crucial juncture.

B.

That petitioner has no adequate means of relief besides

mandamus does not conclude our inquiry into whether we

have power to address the merits presented by the petition.

We must further determine whether petitioner has carried his

"burden of showing that [his] right to issuance of the writ is

clear and indisputable." Gulfstream, 485 U.S. at 289 (cita-

tions omitted); see also Papandreou, 139 F.3d at 250. On its

face, this criterion is somewhat circular. The right to issu-

ance of the writ must be "clear and indisputable," but criteria

for determining whether a petitioner has a right to issuance

of the writ at all--let alone one that is clear and indisputa-

ble--are conspicuously absent from this formulation.

The Supreme Court in Schlagenhauf v. Holder, 379 U.S.

104 (1964), described one category of cases for which manda-

mus is appropriate, a category into which we think the case at

bar fits exactly. In Schlagenhauf, the district court, pursuant

to Federal Rule of Civil Procedure 35, ordered a defendant in

litigation arising out of a bus accident to submit to mental and

physical examinations by several doctors. The defendant

petitioned the Seventh Circuit to issue a writ of mandamus

vacating the district court's order, claiming that Rule 35

authorized mental and physical examinations only of plain-

tiffs, not defendants. Whether Rule 35 could be applied to a

defendant was a "basic, undecided question"; only one federal

case had touched on the issue, and only one state case had

ever ordered the mental or physical examination of a defen-

dant. Id. at 110. The Seventh Circuit thought it had power

to review the question presented by the petition. The Su-

preme Court agreed, holding that "the petition was properly

before [the Seventh Circuit] on a substantial allegation of

usurpation of power in ordering any examination of a defen-

dant, an issue of first impression that called for the construc-

tion and application of Rule 35 in a new context." Id. at 111

(emphasis added). We have described Schlagenhauf as au-

thorizing consideration of a petition for writ of mandamus

"when the appellate court is convinced that resolution of an

important, undecided issue will forestall future error in trial

courts, eliminate uncertainty and add importantly to the

efficient administration of justice." Colonial Times, Inc. v.

Gasch, 509 F.2d 517, 524 (D.C. Cir. 1975).6

The appropriate procedural framework for the Rule 6(e)(2)

ancillary civil proceeding we recognized in Barry is as "im-

portant" and "undecided" today as was the proper interpreta-

tion of Rule 35 at the time Schlagenhauf arose in 1964. We

provided scant guidance in Barry on the proper conduct of

the Rule 6(e)(2) proceeding. And although the Eleventh

Circuit has set forth in significant detail a procedural frame-

work for a Rule 6(e)(2) proceeding akin to the one we

recognized in Barry, see United States v. Eisenberg, 711 F.2d

__________

6 See also In re Department of Justice, 999 F.2d at 1305

(holding that power to determine the issues presented in a writ of

mandamus is conferred when a "case presents a unique situation");

In re Attorney Gen., 596 F.2d at 64 (issuing the writ of mandamus

in part because of "the underlying issues of first impression"

presented in the petition).

959, 964 (11th Cir. 1983), it is the only case we could find that

has done so. The importance of the grand jury to the

enforcement of the federal criminal law is well documented,

and the impact on an ongoing grand jury investigation of a

burdensome discovery process and adversarial hearing,

through which [ ] learn of confidential investigative

material--even if not Rule 6(e) material--could be profound.

Accordingly, we have power "to determine ... the issues

presented by the petition for mandamus," Schlagenhauf, 379

U.S. at 111, and we turn to the merits to evaluate whether

petitioner has a clear right to the issuance of the writ.

III.

A. The Nature of the Proceeding

In this circuit, the scope and nature of proceedings to

enforce Rule 6(e)(2) are governed by our opinion in Barry.

In Barry, we outlined the basic framework governing actions

brought under Rule 6(e)(2):

It is generally understood that a prima facie case of a

violation of Rule 6(e)(2) is made when the media reports

disclosed information about "matters occurring before

the grand jury" and indicated that the sources of the

information included attorneys and agents of the Govern-

ment. Once a prima facie case is shown, the district

court must conduct a "show cause" hearing to determine

whether the Government was responsible for the pre-

indictment publicity and whether any information dis-

closed by the Government concerned matters occurring

before the grand jury. At this hearing, the burden shifts

to the Government to come forward with evidence to

negate the prima facie case. If after such a hearing the

trial court determines that remedial action is warranted,

it may order the Government to take steps to stop any

publicity emanating from its employees.

Barry, 865 F.2d at 1321 (citations, footnote, and internal

quotation omitted). Barry thus envisions that a two-step

analysis will be employed to determine whether a violation of

Rule 6(e)(2) has occurred. First, the district court must

determine whether the plaintiff has established a prima facie

case. This determination will typically be based solely on an

assessment of news articles submitted by the plaintiff; in-

deed, we acknowledged in Barry that a Rule 6(e)(2) plaintiff

could not be "expected to do more at this juncture of the

litigation" given that he or she would "almost never have

access to anything beyond the words of the [news] report."

Id. at 1326 (internal quotation omitted) (alteration in the

original).7 Second, if the court determines that a prima facie

case has been established, the burden shifts to the govern-

ment to "attempt to explain its actions" in a show cause

hearing. Id. at 1325. If the government fails to rebut the

prima facie case, a violation of Rule 6(e)(2) is deemed to have

occurred. Cf., e.g., Duplan Corp. v. Deering Milliken, Inc.,

540 F.2d 1215, 1220 (4th Cir. 1976) (noting that a prima facie

showing "subject[s] the opposing party to the risk of non-

persuasion if the evidence as to the disputed fact is left

unrebutted"). The court then determines what remedy will

be sufficient to deter further leaks. The remedy may be the

imposition of civil contempt sanctions or equitable relief or

both, "depending upon the nature of the violation and what

the trial court deems necessary to prevent further unlawful

disclosures of matters before the grand jury." Barry, 865

F.2d at 1323. Significantly, in establishing this two-step

framework, Barry said nothing about the burden shifting

back to the plaintiff after the government's presentation or

about the plaintiff retaining the burden of persuasion after a

__________

7 To be sure, the plaintiff's burden in a Rule 6(e)(2) proceeding

is relatively light. The articles submitted need only be susceptible

to an interpretation that the information reported was furnished by

an attorney or agent of the government; in fact, "[i]t is not

necessary for [an] article to expressly implicate [the government] as

the source of the disclosures if the nature of the information

disclosed furnishes the connection." Barry, 865 F.2d at 1325

(internal quotation omitted). Of course, should a Rule 6(e)(2)

plaintiff be in possession of evidence of a violation other than the

articles themselves, that evidence should be submitted as part of

the prima facie case.

prima facie case has been established. See id. (noting that

purpose of show cause hearing is to permit the government to

respond; "if the Government fails in its defense," the trial

court should consider appropriate relief); cf. Combs v. Ryan's

Coal Co., Inc., 785 F.2d 970, 984 (11th Cir. 1986) ("The party

seeking the contempt citation retains the ultimate burden of

proof...."). Under Barry, then, the plaintiff's burden is

minimal; the responsibility of coming forward with evidence

to rebut the accusation of unauthorized disclosure lies square-

ly with the government, the party in "the best position to

know whether [it is] responsible for a violation of the Rule."

Barry, 865 F.2d at 1326 (internal quotation omitted). If, of

course, the government convinces the trial judge that no

violation of Rule 6(e)(2) has occurred, that is the end of the

proceeding.

Here, the IC does not contest the district court's finding

that the movants have satisfied their burden to establish a

prima facie case through the submission of various news

articles indicating that information relating to grand jury

proceedings or witnesses was obtained from sources associat-

ed with the IC or that a show cause hearing is now required

under Barry. The IC does, however, object strenuously to

the discovery procedures set forth by the district court in its

order governing the conduct of the show cause hearing--in

particular, the requirement that the IC be required to pro-

duce documents sought by the movants, submit to depositions

of employees listed by the movants, and respond to subpoenas

for live testimony at the hearing. (The IC has stated his

willingness, however, to submit any information or testimony

in any form required to the district court in an in camera

proceeding.) The only issue before us, it is worth emphasiz-

ing, is not whether a show cause hearing will go forward in

the district court as to whether the IC or members of his

staff have made unauthorized disclosures to the press but

rather the manner in which the hearing will be conducted: as

a full-scale adversarial evidentiary proceeding or as an in

camera inquiry by the trial judge and/or any special master

or counsel it might appoint to assist the court in the task.

Our review of the district court's orders is a fairly deferential

one. In general, district courts are accorded a wide degree of

latitude in the oversight of discovery-related proceedings, and

we review orders pertaining to discovery only for abuse of

discretion. See, e.g., Laborers' Int'l Union of N. Am. v.

Department of Justice, 772 F.2d 919, 921 (D.C. Cir. 1984)

("Control of discovery is a matter entrusted to the sound

discretion of the trial courts."). We are acutely aware that in

this matter in particular the job of supervising the grand jury

has been an arduous one requiring many interventions by the

trial court, which has met its duties with admirable dedication

and expedition. Nonetheless, the appropriate procedure for a

Rule 6(e)(2) hearing is a matter of grave importance, not only

for this proceeding but for future ones, involving the need to

protect the secrecy of the grand jury itself as well as the need

to efficaciously remedy violations of that secrecy prohibited

by Rule 6(e)(2). Accordingly, in this opinion we will lay down

what we conclude is the appropriate way to conduct such a

show cause proceeding.

Barry itself provided little in the way of a roadmap to

assist the district court in proceeding once a prima facie case

is made, that is, it did not address the specifics of how the

show cause hearing should be conducted. It did not, for

example, indicate whether the hearing should be open to the

public or sealed, whether or to what extent discovery should

be permitted and by whom, whether the hearing should

include live testimony or rely solely on documentary evidence,

or how to minimize any risk that the hearing will result in the

disclosure of Rule 6(e) material to unauthorized recipients.

In order to resolve these critical questions, we must balance

two somewhat competing concerns, both of which lie just

beneath Barry's surface. We begin with the recognition that

Barry held that a proceeding to enforce the secrecy mandate

of Rule 6(e)(2) is civil in nature and may be initiated by a

private plaintiff.8 The movants in this proceeding have,

however, seized on this "civil" characterization to argue that,

pursuant to the Federal Rules of Civil Procedure, which

__________

8 In this respect, we are aligned with the Fifth and Eleventh

Circuits, see In re Grand Jury Investigation (Lance), 610 F.2d 202

(5th Cir. 1980); Eisenberg, 711 F.2d 959, and have taken a different

view from that later reached by other courts, see Finn v. Schiller,

generally govern civil actions for civil contempt, see 3

Charles Alan Wright, Federal Practice and Procedure

s 705 (1982),9 they are entitled to broad discovery against the

IC, including the opportunity to require production of and to

review documents from the IC and to subpoena and question

the IC and members of his staff about the alleged unautho-

rized disclosures involved in the news articles that formed the

basis of the prima facie case.10 See, e.g., Degen v. United

States, 517 U.S. 820, 825-26 (1996) (noting that in a civil case,

"a party is entitled as a general matter to discovery of any

information sought if it appears 'reasonably calculated to lead

to the discovery of admissible evidence' ") (quoting Fed. R.

Civ. P. 26(b)(1)).11 In most proceedings characterized as

__________

72 F.3d 1182 (4th Cir. 1996) (Rule 6(e)(2) provides for civil or

criminal contempt remedy but may not be initiated by private

plaintiff); In re Grand Jury Investigation (90-3-2), 748 F. Supp.

1188 (E.D. Mich. 1990) (Rule 6(e)(2) provides only for criminal

contempt remedy).

9 Because the Federal Rules of Civil Procedure generally gov-

ern civil contempt proceedings, it is arguable that a Rule 6(e)(2)

proceeding must be initiated by complaint and not by motion, see

Fed. R. Civ. P. 3 ("A civil action is commenced by filing a complaint

with the court"), and must first request injunctive relief before

seeking contempt sanctions, see Blalock v. United States, 844 F.2d

1546, 1550 (11th Cir. 1988) ("[T]here is no such thing as an

independent cause of action for civil contempt; civil contempt is a

device used to coerce compliance with an in personam order of the

court which has been entered in a pending case."); but see Barry,

865 F.2d at 1324 n.7 ("[A] civil contempt sanction may include

appropriate equitable relief."). Because the IC has not raised

either of these concerns below or before this court, we will not

consider them further here.

10 Indeed, the movants' motion to the district court requesting

discovery asserted that it was unnecessary for them to secure the

court's permission to commence civil discovery. See Memorandum

in Support of Motion for Production of Documents and Testimony

(June 19, 1998), at 2.

11 Of course, a district court retains the discretion "to control

any discovery process which may be instituted so as to balance [the

"civil," this would certainly be the case: An overriding inter-

est in the revelation of truth creates a need for free and open

access to evidence; indeed, we have called it a "hallmark of

our adversary system that we safeguard party access to the

evidence tendered in support of a requested court judgment"

and noted that the "firmly held main rule" is that "a court

may not dispose of the merits of a case on the basis of ex

parte, in camera submissions." Abourezk v. Reagan, 785

F.2d 1043, 1060-61 (D.C. Cir. 1986), aff'd by an equally

divided court, 484 U.S. 1 (1987) (citations omitted). Excep-

tions to this rule are few and narrow. Id.

We ultimately conclude, however, that the unique nature of

a Rule 6(e)(2) show cause hearing requires such an exception.

This is not a typical civil proceeding between two disputants;

rather, it resembles more clearly an ancillary proceeding to a

criminal grand jury inquest. To the extent that sanctions are

requested to deter future leaks (and the remedy is thus

prospective and prophylactic, rather than retrospective and

punitive), a Rule 6(e)(2) action is indeed civil in nature. See

Barry, 865 F.2d at 1324; see also Gompers v. Buck's Stove &

Range Co., 221 U.S. 418, 441 (1911) (civil contempt sanctions

are "remedial, and for the benefit of the complainant," while

criminal contempt sanctions are "punitive, to vindicate the

authority of the court"). But the way in which the proceed-

ing is conducted must acknowledge the essential nature of the

proceeding as one designed to guard the sanctity of the grand

jury process itself. Thus, Barry describes a Rule 6(e)(2)

plaintiff as having only "a very limited right to seek injunctive

relief or civil contempt of court through the district court

supervising the grand jury." McQueen v. United States,

1998 WL 217538, at *7 (S.D. Tex. Mar. 30, 1998) (citing

Barry). The plaintiff in a Rule 6(e)(2) suit would not, of

course, be entitled to seek monetary damages or attorneys'

fees and costs from an errant prosecutor, even though such

damages are commonly awarded in civil contempt actions.

__________

plaintiff's] need for access to proof ... against the extraordinary

needs of [the government] for confidentiality." Webster v. Doe, 486

U.S. 592, 604 (1988).

See, e.g., Clark v. Library of Congress, 750 F.2d 89, 103 (D.C.

Cir. 1984) (holding that sovereign immunity "bar[s] suits for

money damages against officials in their official capacity

absent a specific waiver by the government") (emphasis omit-

ted); see also Barry, 865 F.2d at 1321-22 (noting only that

Rule 6(e)(2) permits "equitable relief, either in addition to, in

conjunction with or in lieu of contempt sanctions"); McQueen,

1998 WL 217538, at *8 (monetary damages unavailable under

Rule 6(e)(2)); cf. United States v. Waksberg, 112 F.3d 1225,

1226 (D.C. Cir. 1997) ("One of the permissible purposes of

civil contempt sanctions is to compensate the complainant for

losses sustained, through a fine payable to the complainant.")

(internal quotation omitted); Food Lion, Inc. v. United Food

& Commercial Workers Int'l Union, 103 F.3d 1007, 1017 n.14

(D.C. Cir. 1997) (same as to fees and costs). In truth, like a

habeas corpus proceeding, a Rule 6(e)(2) civil action is some-

thing of a hybrid: although initiated by a private plaintiff, it

is designed to be a supplementary means of enforcing the

rules of a criminal proceeding. Cf. Santana v. United States,

98 F.3d 752, 754 (3d Cir. 1996) (noting that the nature of

habeas corpus cases is "not adequately captured by the

phrase 'civil action'; they are independent civil dispositions of

completed criminal proceedings"). A Rule 6(e)(2) proceeding,

dealing as it does with the substance of an ongoing criminal

grand jury investigation, must be fully cognizant of the

interests underlying that concurrent criminal proceeding.

The Supreme Court "consistently ha[s] recognized that the

proper functioning of our grand jury system depends upon

the secrecy of grand jury proceedings," Douglas Oil Co. of

Calif. v. Petrol Stops N.W., 441 U.S. 211, 218 (1979), "a long-

established policy ... older than our Nation itself," Pitts-

burgh Plate Glass Co. v. United States, 360 U.S. 395, 399

(1959) (internal quotation omitted). Rule 6(e)(2), by reinforc-

ing this need for secrecy, protects several interests of the

criminal justice system:

First, if preindictment proceedings were made public,

many prospective witnesses would be hesitant to come

forward voluntarily, knowing that those against whom

they testify would be aware of that testimony. More-

over, witnesses who appeared before the grand jury

would be less likely to testify fully and frankly, as they

would be open to retribution as well as to inducements.

There also would be the risk that those about to be

indicted would flee, or would try to influence individual

grand jurors to vote against indictment. Finally, by

preserving the secrecy of the proceedings, we assure that

persons who are accused but exonerated by the grand

jury will not be held up to public ridicule.

Douglas Oil, 441 U.S. at 219. Thus, there are obvious risks

of disclosure of grand jury material posed by translating

normal discovery techniques or routine cross-examination of

witnesses by all participating parties into Rule 6(e)(2) pro-

ceedings. Because a violation of Rule 6(e)(2) requires that

the disclosure concern "matters occurring before the grand

jury," 12 see Barry, 865 F.2d at 1321; Fed. R. Crim. P. 6(e)(2),

the IC may defend against an allegation of an unauthorized

disclosure in the press by asserting that the information

reported is, in fact, not a matter before the grand jury. In

order to do so, however, he may well need to explain what

material was before the grand jury.13 Even the fact that the

__________

12 Although we have recently noted in a case involving the

rights of the media to gain access to district court hearings and

pleadings related to the grand jury's investigation that the phrase

"matters occurring before the grand jury" encompasses "not only

what has occurred and what is occurring, but also what is likely to

occur," including "the identities of witnesses or jurors, the sub-

stance of testimony as well as actual transcripts, the strategy or

direction of the investigation, the deliberations or questions or

jurors, and the like," In re Motions of Dow Jones & Co., Inc., 142

F.3d 496, 500 (D.C. Cir. 1998), petition for cert. filed, 66 U.S.L.W.

3790 (U.S. June 3, 1998) (No. 97-1959) (internal quotation omitted),

we note here the problematic nature of applying so broad a

definition, especially as it relates to the "strategy or direction of the

investigation," to the inquiry as to whether a government attorney

has made unauthorized disclosures.

13 We recognize that the district court's orders restricted dis-

covery to "matters not covered by Rule 6(e)," but given that the

disclosure of Rule 6(e) material is at the heart of this case, we find

"leaked" material was not relevant to the investigation could

itself be quite revealing, and certainly admissions that grand

jury material was disclosed would be useful to witnesses who

might be recalled. The possibility that document production,

depositions, and cross-examination of government prosecutors

would result in a disclosure of Rule 6(e) material clearly

increases the risk of "[a greater] number of persons to whom

the information is available (thereby increasing the risk of

inadvertent or illegal release to others), [and thus] renders

considerably more concrete the threat to the willingness of

witnesses to come forward and testify fully and candidly."

United States v. Sells Eng'g, Inc., 463 U.S. 418, 432 (1983)

(rejecting automatic disclosure of grand jury materials to

government civil attorneys). Moreover, if discovery and ex-

amination of government witnesses through depositions and

in court were routinely available in Rule 6(e)(2) suits, targets

and witnesses would surely be encouraged to bring such

proceedings in the hope of obtaining information as to the

course of the grand jury's investigation whenever the rela-

tively low threshold of a prima facie case attributing the

source of a "leak" to the prosecutor was met. Cf. id. at 432

("If prosecutors in a given case knew that their colleagues

would be free to use the materials generated by the grand

jury for a civil case, they might be tempted to ... start or

continue a grand jury inquiry where no criminal prosecution

seemed likely."). The advantage of cross-examining govern-

ment agents involved in an ongoing investigation about

whether a "leak" of grand jury information has occurred

cannot be overstated, particularly in cases of large-scale

public interest. At the very least, if discovery or cross-

examination in a Rule 6(e)(2) proceeding were allowed to

proceed along its usual course, it would almost certainly

result in the release of the names of the government agents

involved in the investigation as well as the names of members

of the press with whom they have been in contact

[ ]. Short of a

blanket denial of any press contacts at all, it would seem to us

__________

it impossible to imagine how any meaningful discovery regarding

leaks could take place that would not involve the disclosure of some

Rule 6(e) material.

to be virtually impossible for IC personnel to answer mov-

ants' questions about whom they talked to, where, and about

what without disclosing details of the investigation that tread

perilously near to or in fact step over the line into areas of

grand jury secrecy. Even if the specifics of information

discussed with members of the press were redacted to omit

grand jury material (and it is hard to see what use the

questioning would be if the answers were so limited), the fact

that the redaction was made at all would give rise to infer-

ences about the substance of grand jury material when put

together with the context of the answer and the identity of

the media representative who authored it. Moreover, even if

certain information discussed with members of the press

regarding the course of the investigation, such as investiga-

tive leads ultimately not pursued, was considered not to be

"matters occurring before the grand jury" and thus would not

be subject to redaction, its revelation would still provide

useful clues as to the direction of the prosecutors' efforts. In

sum, we cannot envision how a useful inquiry could be

conducted about what the IC or members of his staff told the

press about certain matters relevant to the grand jury's

investigation without disclosing the focus of the investigation

(or, minimally, the areas or individuals not being focused

on).14 We must conclude, therefore, that the drafters of Rule

6(e)(2) intended that proceedings to ferret out violations of

the grand jury secrecy rule should not themselves present an

undue risk of compromising that very secrecy. See, e.g.,

McQueen, 1998 WL 217538, at *9 ("[L]iberal discovery rules

in civil suits ... would expose grand jury deliberations, the

identity of grand jurors, and other grand jury members to

the public. This would not only inhibit the grand jury's

deliberative process, it would potentially expose grand jury

members, government lawyers and agents, and witnesses to

outside pressures and possible danger. In short, it would

eviscerate the very protections to the grand jury process Rule

__________

14 While we cannot permit the IC's assertions of risk to the

grand jury to act as an impenetrable shield against the progress of

a Rule 6(e)(2) investigation, we must give some credence to his

assertions, since we are not privy to the status or the substance of

the grand jury's investigation.

6 was intended to provide."); Blalock, 844 F.2d at 1559 n.19

(Tjoflat, J., specially concurring) (inquiry into status of grand

jury's investigation, "especially when conducted in the context

of an adversarial civil contempt proceeding, would inevitably

lead to the disclosure of grand jury matters, the very vice

Rule 6(e)(2) was designed to avoid"); Donovan v. Smith, 552

F. Supp. 389, 390 (E.D. Pa. 1982) (denying defendants' re-

quest to depose lead government attorney and thereby "in-

trud[e] into his knowledge regarding the prosecution of this

action").

There is a further impediment to treating a Rule 6(e)(2)

proceeding in all respects like a typical civil adversarial

proceeding. It would almost certainly engage the district

court and the prosecutor in lengthy collateral proceedings

and in so doing divert the grand jury from its investigation.

How, for instance, could counsel for a Rule 6(e)(2) plaintiff be

permitted to engage in discovery and in-court examination of

government witnesses without granting the government's at-

torney a similar opportunity to depose movants' counsel,

movants' associates, and, indeed, the movants themselves if

they could be shown to have relevant information about how

the leaks really occurred? After all, if the government seeks

to prove that it is not the source of the information reported,

it has an interest in identifying the true source. By setting

forth a simple, two-step framework, we believe Barry sought

to achieve a swift resolution of an alleged Rule 6(e)(2) viola-

tion and to put an immediate stop to any leaks while not

unduly interfering with the work of the grand jury with a full-

blown sidebar trial on the Rule 6(e)(2) issue. See Barry, 865

F.2d at 1326 (show cause hearing "carries little threat of

conflict with the grand jury proceedings") (internal quotation

omitted); cf. United States v. Dionisio, 410 U.S. 1, 17 (1973)

("Any holding that would saddle a grand jury with minitrials

... would assuredly impede its investigation and frustrate

the public's interest in fair and expeditious administration of

the criminal laws."); Eisenberg, 711 F.2d at 966 (targets

should not be permitted access to information that "would

permit them to embark upon a broad scale investigation of

their own").

Given the lack of guidance in Barry on how to conduct the

rebuttal phase of a Rule 6(e)(2) inquiry, it is not surprising

that the district court proceeded as it did. Nevertheless, we

believe that the risks of even inadvertent disclosure of grand

jury matters and the specter of unnecessary detraction from

the main business of the grand jury's investigation are simply

too serious to allow the movants[

]full access to all relevant materials produced

by the government or to let them conduct direct or cross-

examination of government investigative personnel during

ongoing grand jury proceedings. In our view, Barry did not

contemplate such an adversarial evidentiary hearing as the

next stage following a prima facie case. Indeed, we have

been hard pressed to find any case in which a Rule 6(e)(2)

proceeding has been conducted in such a manner; in all

reported cases brought to our attention, in camera and/or ex

parte proceedings have been the norm. See, e.g., Eisenberg,

711 F.2d at 966 (prohibiting preindictment participation by

targets); Barry v. United States, 740 F. Supp. at 888, 894

(D.D.C. 1990) (district court holds government's documentary

submission sufficient to rebut prima facie case); Donovan,

552 F. Supp. at 390 (court holds in camera proceeding in

which government responded to questions submitted to court

by defense counsel and by court); see also Paul S. Diamond,

Federal Grand Jury Practice and Procedure s 10.02 (3d ed.

1997) ("It is rare indeed for a court to require that the

government meet its burden under Rule 6 by presenting the

testimony of its attorneys and agents, thus subjecting them to

cross-examination. There is obvious potential for defense

abuse of the government and interference with the grand jury

were the courts to require live rebuttal testimony in all

cases.") (footnote omitted); cf. Barry, 865 F.2d at 1326 (char-

acterizing request to disclose grand jury matters as "extraor-

dinary"). In balancing the movants' right to discovery and

direct participation in questioning the IC or his prosecutors

against the interest in maintaining grand jury secrecy, we

must inevitably give priority to ensuring that a proceeding to

enforce the protections of Rule 6(e)(2) does not ultimately

subvert the rule itself.15

B. The Appropriate Procedure

We will now endeavor to set forth the contours of how a

show cause hearing may proceed once a prima facie case has

been established, recognizing that within these boundaries,

the district court should have sufficient leeway to establish

procedures it believes will assist it best in discovering the

truth of the matter while at the same time not causing undue

interference with either the work of the grand jury or that of

the district court itself.

We find the Eleventh Circuit's decision in Eisenberg to be

the most useful precedent on the direction the show cause

hearings should take. In Eisenberg, the targets of two grand

juries filed motions in district court alleging violations of Rule

6(e)(2) and submitting as proof various newspaper articles

that reported government agents and attorneys as the source

of the information disclosed. The district court, after finding

the articles conclusively established the existence of a Rule

6(e)(2) violation, ordered counsel for the government to iden-

tify to counsel for the targets "each government attorney,

officer, agent, or employee with access to the aforedescribed

__________

15 Our decision to limit direct movant participation at this

second stage of the show cause hearing is further fueled by the

immediacy of the potential harm to the grand jury. As we under-

stand it, this grand jury is still hearing testimony, and while the

interest in grand jury secrecy does not disappear altogether after

the investigation is concluded, see Douglas Oil, 441 U.S. at 222, it is

at its most intense while the investigation is ongoing. See, e.g., In

re Grand Jury Subpoena, 72 F.3d 271, 275 (2d Cir. 1995) ("The

government represents that the grand jury investigation here is

very much ongoing, thereby heightening the government's interest

in secrecy."). Indeed, it would obviously be futile to invoke civil

contempt sanctions, which are intended to be forward-looking and

prophylactic, if grand jury proceedings were already concluded.

This requires that extra care be taken in structuring appropriate

Rule 6(e)(2) proceedings to ensure that the course of the grand

jury's investigation is not diverted.

grand jury matters" as well as to furnish affidavits executed

by each such person that included the identity of any news

media representative with which they had communicated and

the circumstances and substance of each communication. Id.

at 962 (internal quotation omitted). As in our case, the

government in Eisenberg did not contest the district court's

conclusion that the news articles submitted established a

prima facie case or that it was required to provide the

designated information to the court for its consideration.

The government did challenge, however, just as the IC does

here, any requirement that it furnish that information directly

to the targets at a time before any indictments had yet

issued. Id. at 963-64.

The Eleventh Circuit reversed the district court's order to

produce information about the press disclosure to the targets

before indictments had been issued or the grand jury's inves-

tigation had ended. Ruling that the articles established only

a prima facie case, the Court of Appeals nonetheless found it

appropriate for the district court to have ordered the govern-

ment "to take steps to stop any publicity emanating from its

employees" before moving to a consideration of whether the

government had in fact violated Rule 6(e)(2) by past disclo-

sures. Id. at 964. The court stated decisively, however, that

the targets should not be allowed to participate directly in

this inquiry as to the government's culpability. Rather, the

district court should first have conducted an in camera

review of the government's proffer of evidence as to its

conduct:

[W]e do not think the court properly balanced the tar-

gets' interest in the information with the harmful effects

that could follow the disclosure to targets' counsel of

names of all the government employees involved in the

investigation.... Such information could lead counsel to

call upon those government agents and attempt to inter-

view them; news would spread that the attorneys for the

targets were invading the province of the grand jury;

and prospective witnesses could be intimidated from

testifying.

Id. at 965. As a result, the Eisenberg court held that the

information identified by the district court "should first be

furnished to the district court in camera"; after reviewing

this material, the district court could then determine whether

further proceedings were necessary as well as the extent of

the targets' involvement in those proceedings. Id. at 966.

Admittedly, Eisenberg does not provide all the answers. It

is not entirely clear, for example, whether the Eisenberg

court contemplated that the in camera review of the govern-

ment's rebuttal evidence might, if it failed to satisfy the judge

as to the government's innocence or guilt, be followed by a

hearing in which the targets' counsel would be allowed to

participate in order to determine the existence of a violation,

see id. ("The court may subsequently determine whether a

hearing should be held on the alleged government violations

of Rule 6(e) and whether counsel for targets should be

present at the hearing."), or whether the court would make

the decision on the existence of a violation by itself and invite

the presence of the targets' counsel only at the remedy stage,

see id. at 965 ("Once the court determines that Rule 6(e) has

been violated, the court may properly inform the targets'

counsel of the names of the violators. Targets' counsel may

then play a proper role in hearings involving imposition of

contempt sanctions on government employees."). To the

extent Eisenberg can be read to suggest that counsel for Rule

6(e)(2) plaintiffs should be permitted to play an adversarial

role in the show cause hearing, we cannot agree. We do find

persuasive, however, the Eisenberg court's conclusion that in

camera review of the government's ex parte proffer is the

most appropriate way to conduct proceedings in Rule 6(e)(2)

cases and protect grand jury secrecy.

The use of in camera review in proceedings collateral to a

grand jury investigation is by no means novel. District

courts are often required to conduct an in camera review of

grand jury material requested under Rule 6(e)(3)(C)(i) 16 to

__________

16 Rule 6(e)(3)(C)(i) permits disclosure of "matters occurring

before the grand jury" when "so directed by a court preliminary to

or in connection with a judicial proceeding." Fed. R. Crim. P.

6(e)(3)(C)(i). Parties seeking such material must show "that the

material they seek is needed to avoid a possible injustice in another

determine what material, if any, is responsive to the need

asserted by the requesting party; this in camera review "is

necessary due to the paramount concern of all courts for the

sanctity and secrecy of grand jury proceedings." Lucas v.

Turner, 725 F.2d 1095, 1109 (7th Cir. 1984); see also In re

Special Grand Jury 89-2, 143 F.3d 565, 572 (10th Cir. 1998);

S. Rep. No. 95-354, at 8 (1977), reprinted in 1977

U.S.C.C.A.N. 527, 532 ("It is contemplated that the judicial

hearing in connection with an application for a court order by

the government under subparagraph (3)(C)(i) should be ex

parte so as to preserve, to the maximum extent possible,

grand jury secrecy."). Similarly, courts often use in camera,

ex parte proceedings to determine the propriety of a grand

jury subpoena or the existence of a crime-fraud exception to

the attorney-client privilege when such proceedings are nec-

essary to ensure the secrecy of ongoing grand jury proceed-

ings. See, e.g., In re Grand Jury Nos. 95-7354, 96-7529 and

96-7530, 103 F.3d 1140, 1145 (3d Cir.), cert. denied sub nom.

Roe v. United States, 117 S. Ct. 2412 (1997) ("Ex parte in

camera hearings have been held proper in order to preserve

the ongoing interest in grand jury secrecy."); In re Grand

Jury Proceedings, Thursday Special Grand Jury Sep. Term,

1991, 33 F.3d 342, 353 (4th Cir. 1994) ("[T]he government's

proffer [as to the existence of the crime-fraud exception] was

made in camera because it concerned matters subject to an

on-going investigation before the grand jury."). Although in

camera, ex parte submissions "generally deprive one party to

a proceeding of a full opportunity to be heard on an issue," In

re John Doe Corp., 675 F.2d 482, 490 (2d Cir. 1982), and thus

should only be used where a compelling interest exists, see,

e.g., In re John Doe, Inc., 13 F.3d 633, 636 (2d Cir. 1994), we

find that the nature of a Rule 6(e)(2) hearing, particularly

when conducted during an ongoing grand jury investigation,

involves such a compelling interest. See, e.g., In re Grand

Jury Proceedings, 33 F.3d at 353 (holding that "in camera

proceedings in the context of grand jury proceedings and on-

__________

judicial proceeding, that the need for disclosure is greater than the

need for continued secrecy, and that their request is structured to

cover only material so needed." Douglas Oil, 441 U.S. at 222.

going investigations requiring secrecy are not violative of due

process" despite lack of opportunity to rebut government's

proffer); In re John Doe, 13 F.3d at 636 ("[W]here an in

camera submission is the only way to resolve an issue without

compromising a legitimate need to preserve the secrecy of the

grand jury, it is an appropriate procedure."); In re John Doe

Corp., 675 F.2d at 490 ("We recognize that appellants cannot

make factual arguments about materials they have not seen

and to that degree they are hampered in presenting their

case. The alternatives, however, are sacrificing the secrecy

of the grand jury or leaving the issue unresolved at this

critical juncture.").

In light of these concerns, we conclude that the show cause

hearing in this instance should not proceed in a fully adver-

sarial manner when only a prima facie case has been made.

We emphasize, however, that the burden of rebutting the

prima facie case will lie with the IC, who must now come

forward with evidence, in whatever form the district court

requires (including affidavits, depositions, production of docu-

ments, or live testimony) to rebut the inferences drawn from

the news articles that established the prima facie case of a

Rule 6(e) leak to the press by personnel in or "close to" the

IC's office. This evidence should be submitted ex parte and

in camera for the district court's review. Because the gov-

ernment must negate at least one of the two prongs of the

prima facie case--by showing either that the information

disclosed in the media reports did not constitute "matters

occurring before the grand jury" or that the source of the

information was not the government--relevant evidence

might include "what actually occurred before the grand jury,

whether the purported grand jury disclosures are accurate,

the identities of its employees with access to any of the grand

jury information disclosed, and whether these individuals in

turn provided any such information to the media," Barry, 740

F. Supp. at 890, as well as evidence as to the IC's general

policies concerning press contacts, evidence as to the actual

source of information reported by the press, or evidence

describing any actual exchanges between a member of the

IC's staff and a member of the press associated with one of

the identified reports. The district court's task at this stage

is to review the IC's evidentiary submissions and determine

whether they are sufficient to rebut the movants' prima facie

case--in other words, whether the evidence presented by the

government is sufficient to render the identified press re-

ports 17 inaccurate either in their characterization of material

as grand jury related or in their identification of the source of

the information. If the district court determines that the

IC's submission is insufficient to rebut the prima facie case,

or, indeed, if the IC or a member of his staff admit to

violations, no further proceedings are necessary, and the

district court may proceed to find that a Rule 6(e)(2) violation

has occurred and determine the appropriate remedy. The

announcement of the court's finding should be available to the

movants and their participation in any remedy hearing pre-

sumptively allowed. If, on the other hand, the district court

determines that the IC's submission conclusively rebuts the

prima facie case, the show cause order should be dis-

charged.18 In either event, this first stage should be ex parte

__________

17 Although Barry makes reference to a determination of

whether there has been a "pattern or practice of impermissible

disclosures of grand jury material," see Barry, 865 F.2d at 1325,

this should not be construed as requiring the district court to

extend the Rule 6(e)(2) inquiry beyond the news articles submitted

by the movants. Indeed, in order to limit the district court's

function to adjudication rather than investigation, we find it entirely

appropriate to limit any findings to those articles.

18 Because it is unlikely that a news report will attribute the

disclosure of purported grand jury material to a specific individual,

it is possible that a showing as to each individual associated with the

IC who has access to certain material will be required to constitute

sufficient rebuttal. Cf. Lance, 610 F.2d at 219 ("The inability to

show a definite source for some of the information contained in the

articles might cause a prima facie case to fail if a responsive

affidavit denying the allegations is made."). We note that pursuant

to Rule 6(e)(3)(B) of the Federal Rules of Criminal Procedure, the

IC is required to provide to the district court the names of any

government personnel who have been made privy to grand jury

material in order to assist the IC in his investigation.

and in camera in order to minimize the intrusion on the

interests protected by Rule 6(e)(2).

If, however, after review of the government's rebuttal case

the district court finds that it cannot make an adequate

determination as to whether a violation of the rule has

occurred, or if the district court cannot identify with certainty

the individual or individuals responsible, further proceedings

may be appropriate. Although the district court should take

care to protect the secrecy of the grand jury investigation by

continuing to conduct the proceedings in camera and ex

parte, we do not wish unnecessarily to cabin the district

court's discretion as to the type of factfinding tools it may

use. The court may, for example, request further affidavits

or other types of documentary evidence from either the

government or the movants; it may request that a member of

the IC's staff or another witness answer questions of the

court or questions submitted by the movants upon the court's

invitation; the court may, if it so chooses, appoint a special

master or other individual to collect evidence and submit a

report to the district court for its review and adjudication.

See, e.g., Eisenberg, 711 F.2d at 966 ("We can conceive of

circumstances where a district court could seek the appoint-

ment of a special counsel to assist the court in determining

whether Rule 6(e) violations had occurred.").19

If at the end of the day the district court determines that a

violation of Rule 6(e)(2) has occurred, it may report this

finding to the movants and identify the government agent or

attorney responsible for the disclosure.20 See Eisenberg, 711

F.2d at 965. The movants may then participate in determin-

ing the appropriate remedy, which, as we have noted, may

include equitable relief, contempt sanctions, or both, see

__________

19 The movants acknowledged before the district court, and the

IC stated in oral argument before this court, that the involvement

of such an individual might be appropriate. See Prehearing Memo-

randum of President Clinton (March 10, 1998), at 3.

20 Ordinarily, the court should not reveal the precise substance

of the disclosure to the movants, as this would tend to reveal

"matters occurring before the grand jury."

Barry, 865 F.2d at 1321-22, keeping in mind that the relief

granted should be "carefully tailored to avoid unnecessary

interference with grand jury proceedings," id. at 1323. Final-

ly, the district court must keep a transcribed record of what

transpired in any in camera proceeding; should the grand

jury ultimately issue indictments, the indicted party or par-

ties may request the transcript of the Rule 6(e)(2) proceed-

ings in order to determine whether to contest any indictment

on the basis of the violation. See Eisenberg, 711 F.2d at 965;

Fed R. Crim. P. 6(e)(3)(C)(ii) (disclosure of grand jury matters

permitted "at the request of the defendant, upon a showing

that grounds may exist for a motion to dismiss the indictment

because of matters occurring before the grand jury").21

IV.

We are keenly aware that allegations that a government

official has violated Rule 6(e)(2) are not to be taken lightly.

As Justice Frankfurter noted, "[t]o have the prosecutor him-

self feed the press with evidence ... is to make the State

itself through the prosecutor, who wields its power, a con-

scious participant in trial by newspaper, instead of by those

methods which centuries of experience have shown to be

indispensable to the fair administration of justice." Stroble v.

California, 343 U.S. 181, 201 (1952) (Frankfurter, J., dissent-

ing). It is the very interests in protecting grand jury secrecy

underlying the rule, however, that call for the utmost discre-

tion on the part of the courts to ensure that the rule is not

breached in the very act of rooting out violations. We believe

the intent of Barry in characterizing the inquiry into Rule

6(e)(2) violations as civil is honored by allowing the movants

to identify any violations of the rule and, if necessary, to

participate in crafting a remedy designed to stop further

violations. Any direct participation in deciding whether a

__________

21 At this stage an adversarial presentation may be appropriate,

since "[w]hat appears to be harmless to a district judge may be

prejudicial if seen in light of a defense counsel's special familiarity

with a given prosecution." United States v. Fowlie, 24 F.3d 1059,

1066 (9th Cir. 1994).

violation has occurred and by whom should be allowed by the

district court only in extraordinary circumstances and as a

last resort. The procedure we have outlined is designed to

"allow the court to focus on the culpable individual rather

than granting a [discovery] windfall" to the movants. Bank

of Nova Scotia v. United States, 487 U.S. 250, 263 (1988).

We have decided the merits of the IC's challenge to the

district court orders by granting its petition for writ of

mandamus. Accordingly, we dismiss the appeal in No.

98-3077 et al., vacate the procedural aspects of the district

court's orders of June 19 and June 26, and remand for further

proceedings consistent with this opinion.

It is so ordered.