explaining that the “indispensable secrecy of grand jury proceedings ... must not be broken except where there is a compelling necessity. There are instances when that need will outweigh the countervailing policy. But they must be shown with particularity.”
How later courts described this case
- explaining that the “indispensable secrecy of grand jury proceedings ... must not be broken except where there is a compelling necessity. There are instances when that need will outweigh the countervailing policy. But they must be shown with particularity.”
- stating that the “ ‘indispensable secrecy of grand jury proceedings’ must not be broken except where there is a compelling necessity,” and that instances where the need outweighs the countervailing policy must “be shown with particularity”
- explaining that the liberal discovery provisions of the Federal Rules are designed to make “trial less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”
- explaining that liberal discovery provisions of Federal Rules are designed to make “trial less a game of blind man’s bluff and more a fair context with the basic issues and facts disclosed to the fullest practical extent.”
Written by the judges who cited it.
The opinion
Me. Justice Hablan,
whom
Mr. Justice Frankfurter and Mr. Justice Burton join, dissenting.
The Court reverses the judgment below without so much as adverting to what seems to me the real and only question in the case: Did the District Court abuse its discretion by ordering the Government to furnish the appellees with the transcript of the grand jury proceedings?
*686 I do not believe this question can be avoided or obscured by casting the issue in terms of whether the appellees made an adequate showing of “good cause” under Rule 34 for the discovery which they sought and gained. What constitutes “good cause” under Rule 34 necessarily turns on the facts and circumstances of each particular case, and in the last analysis rests within the sound discretion of the trial court. 4 Moore’s Federal Practice (2d ed. 1950) §34.08.
Viewing the matter in this light, I do not think it can be said that the lower court was guilty of an abuse of discretion. A cursory statement of the setting in which appellees were accorded access to the grand jury transcript should suffice to make this clear. By any standards this antitrust litigation was of great magnitude and complexity. In 1956, when discovery was ordered, the litigation had been pending for over three years, and despite the assiduous efforts of the court to bring the issues within manageable compass, the case seems still to have been far removed from a posture where trial was in sight. The discovery order was the subject of elaborate briefing and oral argument, during the course of which the court found itself handicapped by the refusal of the Government to indicate the exact use it had made, and intended to make, of the grand jury transcript in conection with its preparation and trial of the case. 1
*687 In granting discovery the District Court wrote a reasoned opinion in which it found: (1) that the Government had filed its complaint in this civil suit following an eighteen-month grand jury investigation, which had ended some four years before the discovery order without an indictment being returned; 2 (2) that the Government had made continuing use of the grand jury transcript in its preparation of the civil case; (3) that “the ends of justice” required that appellees be given reciprocal access to such transcript in aid of the preparation of their defense; 3 and (4) that disclosure would not in the circumstances violate the traditional reasons for safeguarding the secrecy of grand jury proceedings. 4
*688 The following quotation from the District Court's opinion reveals its alert and sensitive concern over unnecessary disclosure of grand jury proceedings:
“I realize there is a strong caveat against the needless intrusion upon the indispensable secrecy of grand jury proceedings. The reasons therefor were indelibly impressed upon me when I served as Assistant Prosecutor of my home county for ten years where I spent the greater part of the time presenting cases to the grand jury. I realize further that a strong and positive showing should be required of persons seeking to break the seal of secrecy, which never should be done except in extreme instances to prevent clear injustice or an abuse of judicial processes. Which policy should be served here to bring about justice — the policy requiring secrecy, or the policy permitting disclosure for discovery purposes only in the interest of justice? I believe the requirement of secrecy in this case can be safely waived and the minutes of the grand jury divulged within the limits prescribed by the law, and that the failure to do so would be an abuse of discretion and not in the furtherance of justice. Under Rule 6 (e) of the Federal Rules of Criminal Procedure our courts have, by way of interpretation, extended their jurisdiction so as to remove ‘the veil of secrecy’ around grand jury proceedings where, in the court’s discretion, the furtherance of justice requires it. If it can be done on the criminal side, I can see no compelling reason why it cannot be safely done on the civil side in this case. I would not grant these motions if I thought they were prejudicial to the public interest, useless or unnecessary, would not reveal the information sought, or defendants already possessed all the necessary information or could obtain it by pursuing a different remedy.”
*689 The findings of the District Court as to what the procedural situation in this complicated case fairly required, made as they were by a judge who had been in charge of this case from the beginning, should not be disturbed by this Court any more lightly than findings made after a trial on the merits. Cf. United States v. Yellow Cab Co., 338 U. S. 338 ; United States v. Oregon State Medical Society, 343 U. S. 326 .
The Court recognizes that had the Government’s grand jury investigation been instituted solely in aid of a civil suit — that is without any thought of obtaining an indictment — the appellees would then have been entitled to see the entire grand jury transcript. Although it may be true that no finding has been made here of such misuse of the grand jury process, I am unable to see why the case where a grand jury investigation has aborted and the Government thereafter uses the transcript solely in aid of its civil case should be treated differently. The only distinction relates to the Government’s motive in instituting the grand jury proceedings. For in both instances the effect on the litigation is precisely the same, and in both instances the Government’s conduct disrespects the policy underlying 37 Stat. 731 , 15 U. S. C. § 30 , 5 requiring the testimony of witnesses in government Sherman Act equity suits to be taken in public. In neither type of case should the Court undertake to lay down a fixed rule concerning disclosure of grand jury transcripts, but instead should leave the matter to the sound discretion of the *690 trial judge, to be dealt with by him in light of the particular circumstances of each case.
I fully subscribe to the view that the strong public policy of preserving the secrecy of grand jury proceedings should prevent the general disclosure of a grand jury transcript except in the rarest cases. But the inflexible rule announced today, which allows that policy to be overcome only in instances where it can be shown that the Government has “subverted” the grand jury process in the manner suggested by the Court, seems to me an unwise and unnecessary curbing of trial judges in the efficient and fair handling of the difficult problems presented by a unique type of litigation. See the Prettyman Report on Procedure in Anti-Trust and other Protracted Cases, 13 F. R. D. 62, which has been adopted by the Judicial Conference of the United States. This is particularly so in cases like the one before us, where the grand jury’s functions have long since ended. See United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 233-234 ; 8 Wigmore, Evidence (3d ed. 1940), § 2362. Here as elsewhere in the realm of discretionary power appellate review should be the safeguard against abuse in particular instances, rather than the a priori imposition of rigid restrictions upon trial judges which leave them powerless to act in appropriate cases. Under the facts shown by this record, I am unable to say that the District Court abused its discretion in ordering the grand jury transcript to be made available to the appellees.
The following is taken from the District Court’s opinion:
“. . . during the oral argument of these motions the court asked Mr. McDowell, plaintiff’s attorney, the following questions:
“ ‘Mr. McDowell, do you object to submitting a detailed affidavit stating exactly (a) what use, if any, plaintiff has made in the past of the grand jury transcripts while preparing for the trial of this ease; (b) what use, if any, plaintiff intends to make of the transcripts during its future preparation for the trial; (c) what use, if any, plaintiff intends to make of the transcripts during the trial.’ “He wished to confer with his superiors in the Department of Justice *687 before deciding if he would answer the questions. The court awaited candid answers — but in vain. For Mr. McDowell wrote:
“ ‘The questions which you put to me at the hearing on December 12th relating to the use by the government of transcripts of grand jury testimony have been given serious consideration within the Department of Justice. I am instructed respectfully to inform you that we do not wish to add to the statement which I made at the hearing.’
“His ‘statement’ at the hearing did not answer the questions. Because the plaintiff arbitrarily has refused to answer the court’s questions relating to any use of these transcripts, the court has been denied helpful information and as a result has been forced to seek its answers elsewhere.”
In response to questions put at oral argument, government counsel informed us that the Government had not requested the grand jury to return an indictment.
In the Appendix to its opinion, which reviews some of the prior proceedings, the District Court refers to the following comment made by it at an earlier stage of the case:
“ ‘One of my concerns is that since plaintiff has been preparing its case for probably three years, or longer, how long must we wait for defendants to prepare their case? The sooner defendants are informed of plaintiff’s factual contentions, the sooner defense preparation can commence — -and not before, obviously.’ ”
See United States v. Hose, 215 F. 2d 617, 628-629 , quoted from in footnote 6 of the Court’s opinion.
“[In] the taking of depositions of witnesses for use in any suit in equity brought by the United States under the [Sherman Act], and in the hearings before any examiner or special master appointed to take testimony therein, the proceedings shall be open to the public as freely as are trials in open court; and no order excluding the public from attendance on any such proceedings shall be valid or enforceable.”