Petition — J. L. Simmons Co. v. Illinois

Court, U. $

™m FILED =

r

Iu the

Supreme Court pf the Rnited MICHAEL RODAK, JR., CLERK

Ocroner Term, 1976 —

MAY 25 1977

No. 76-1661

— =

J. L. SIMMONS COMPANY, INC., et al.,

Petitioners,

vs.

STATE OF ILLINOIS and JOHN E. SARBAUGH, Chief,

Midwest Office, Antitrust Division of the United States

Department of Justice,

Respondents.

—_-_— + + 7 —-—™

— -_— —

PETITION FOR A WRIT OF CERTIORARI TC THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

RICHARD A. MAKARSKIT

STANLEY B. BLOCK

ALLAN E. LAPIDUS

Suite 1600

111 W. Monroe Street

Chicago, Illinois 60603

Attorneys for Petitioners

Of Counsel:

MARK P. COHEN

CHAPMAN and CUTLER

Suite 1600

VEDDER, PRICE, KAUFMAN & KAMMHOLZ

Suite 3000

Harris Bank Building

111 W. Monroe Street

Chicago, Illinois 60603

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

INDEX TO PETITION

PAGE

NE IE ivricncitestdin ddbsbnceisienenbbbnnneabinniitbiasiniocatip 2

I Nici cicinsininnpenatsciniglineaninspteidsiptaiennty eonenie 2

Se III ccccesinecinanetsnomnstansionniplbltsindacenedtnctenealee 2

Rules and Statute Involved .....0........cccccccsecsesesscecssensenseneees 3

AE, Fe GI i ceteitictiintinaticien scitimnsiitinbiaailiiamniini 4

Reasons for Granting the Writ. .............cccccccccecccesesseeeeeeeee 10

i ed Des 23

Appendix A—Opinion of thé Court of Appeals for

the Seventh Circuit ...............cccscceseeeee Al

Order Staying Mandate 000000... A19

Appendix B—Opinion of the District Court for the

Eastern District of Illinois _................ Bl

TABLE OF AUTHORITIES

CasEs:

Alexander v. United States, 201 U.S. 117, 50 L.ed. 686

EE CES SAME RN ker cai ene Raa Oe 20)

Baker v. United States Steel Corporation, 492 F.2d

IN CU | cecticdeicicrctrnsstseierstpcnimsntictiaoniaes 11, 12, 13, 22

Carter Products, Inc. v. Eversharp, Inc., 360 F.2d 868

AERTS ESE eager iene e em 21

ii

PAGE

Caswell v. The Manhattan Fire & Marine Insurance

Co., 399 F.2d 417 (Sth Cir, 1968) .............cceescsccssssesenees 20

Cobbledick v. United States, 309 U.S, 323, 84 L.ed. 783

PUI — secieathtsingibedldtitecen aeeliiagiadcetdeiilen sti dinitaa tint ttadaaasy 19, 20

Dennis v. United States, 384 U.S. 855, 16 L.ed. 2d

ERE Seer eae ee ee SN ae 16

Hancock Brothers, Inc. v. Jones, 293 F.Supp. 1229

SEs. SNE “TEUIIED .. ciertinecespceneonnbiessienscineshediileibibeigiadhlipstyiitivads 18

Horizons Titanium Corporation v. Norten Company,

pe fg Ls | Se 21

Pittsburgh Plate Glass Co, v. United States, 360 U.S.

895, 3 Led. 2d 13823 (1959) ...............ccccsssessessoreoeere 15, 16, 17

Premium Service Corp. v. Sperry & Hutchinson Co.,

be FF 8 Ee eer aenmnie 21

Republic Gear Company v. Borg-Warner Corporation,

EE EL ED TG NED nicchescumcaveisttdndecsacoitiinsbesbsbi 21

Ryan v. Commissioner, 517 F.2d 13 (7th Cir.), cert.

denied 428 U.S. 802 (1975) ...u...c.cccccccccccescesceccececseses 20, 21

Shattuck v. Hoegl, 523 F.2d 509 (2d Cir, 1975) 2... 21

Texas v. United States Steel Corp., 546 F.2d 626

RNR ee ee NO ee 10

United States v. Jackson, 390 U.S, 570, 20 L.ed. 2d 138

IIE satetebieseaeteeelinasintseentsunctegltbsininblantaiinipatiatietintiindteaioneniicinann 17

United States v. Procter & Gamble Co., 356 U.S. 677,

ST ES __—_ SE Sean rene 17

em

_ - a

iii

PAGE

SraruTes:

Section 1 of the Sherman Act, 15 U.S.C, §1 ..0.0.0.0000... 4

CS a ne ee 2

I a eeneitieninel 2, 4,18

I ii tala +. 2

RRS Eee ne a 2

Ru tes:

Federal Rule of Civil Procedure 45 o........ccccccccccecccsesesneee i8

Federal Rule of Criminal Procedure 6(@) .............:00

Federal Rule of Criminal Procedure 16(a)(1)(A).... 2,3,

11,17

In the

Supreme Court of the United States

Octoser Term, 1976

No.

J. L. SIMMONS COMPANY, INC., et al.

Petitioners,

vs.

_ STATE OF ILLINOIS and JOHN E. SARBAUGH, Chief,

Midwest Office, Antitrust Division of the United States

Department of Justice,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The Petitioners, J. L. Simmons Company, Inc., et al.,*

* This Petition for a Writ of Certiorari is joined in and sub-

mitted on behalf of the following Petitioners in addition to the J. L.

Simmons Company, Inc., who, with the exception of Franklin-

Cress Construction Company, are all of the Intervenors-Appellees

in the Court of Appeals below: Shappert Engineering Company ;

A. J. Walker Construction Company; Champaign Asphalt Com-

pany; Howell Asphalt Company; Huckaba & Sons Construction

Company; Neal Lentz Construction, Inc.; Sangamo Construction

Company; and Shoemaker Bridge Company.

2

respectfully pray that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Seventh Circuit entered in this proceeding

on April 8, 1977.

OPINIONS BELOW

The opinion of the Court of Appeals, not yet reported,

appears in Appendix A hereto at pages Al-Al9. The

unreported opinion of the District Court, which was re-

versed by the Court of Appcais, appears in Appendix B

hereto at pages B1-B21.

JURISDICTION

The judgment of the Court of Appeals for the Seventh

Circuit was entered on April 8, 1977, and an order staying

the Court’s mandate was entered on April 26, 1977. No

petition for a rehearing was filed, and this petition for

certiorari was timely filed pursuant to 28 U.S.C. §2101(c)

within 99 days of the entry of judgment. This Court’s

jurisdiction is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether grand jury transcripts should be disclosed

for purposes of discovery in a civil antitrust action mere-

ly because a corporate employer of the grand jury witness

whose transcript is sought had obtained a copy of that

transcript pursuant to Federal Rule of Criminal Procedure

16(a)(1)(A) in the preparation of that corporation’s de-

fense in a prior criminal anti-trust proceeding, and where

there has been no demonstration of compelling need?

2. Whether an order of the United States District Court

for the Eastern District of Illinois denying discovery of

transcripts of a grand jury empanelled in that district for

use in connection with a civil antitrust proceeding pending

in the District Court for the Southern District of Illinois

is a final appealable order under 28 U.S.C. §1291?

RULES AND STATUTE INVOLVED

Federal Rule of Criminal Procedure 6(e):

Disclosure of matters occurring before the grand

jury other than its deliberations and the vote of any

juror may be inade to the attorneys for the government

for use in the performance of their duties. Otherwise

a juror, attorney, interpreter, stenographer, operator

of a recording device, or any typist who transcribes

recorded testimony may disclose matters occurring

before the grand jury only when so directed by the

court preliminarily to or in connection with a judicial

proceeding or when permitted by the court at the re-

quest of the defendant upon a showing that grounds

may exist for a motion to dismiss the indictment be-

cause of matters occurring before the grand jury. No

obligation of secrecy may be imposed upon any person

except in accordance with this rule. The court may

direct that an indictment shall be kept secret until the

defendant is in custody or has given bail, and in that

event the clerk shal] seal the indictment and no person

shall disclose the finding of the indictment except

when necessary for the issuance and execution of a

warrant or summons.

Federal Rule of Criminal Procedure 16(a)(1)(A):

Upon request of a defendant the government shall

permit the defendant to inspect and copy or photo-

graph: any relevant written or recorded statements

made by the defendant, or copies thereof, within the

possession, custody or control of the government, the

existence of which is known, or by the exercise of due

diligence may become known, to the attorney for the

government; the substance of any oral statement

which the government intends to offer in evidence at

the trial made by the defendant whether before or

after arrest in response to interrogation by any per-

son then known to the defendant to be a government

agent; and recorded testimony of the defendant before

OOOO ea.

4

a grand jury which relates to the offense charged.

Where the defendant is a corporation, partnership,

association or iabor union, the court may grant the de-

fendant, upon its motion, discovery of relevant re-

corded testimony of any witness before a grand jury

who (1) was, at the time of his testimony, so situated

as an officer or employee as to have been able legally

to bind the defendant in respect to conduct constitut-

ing the offense, or (2) was, at the time of the offense,

personally involved in the alleged conduct constituting

the offense and so situated as an officer or employee

as to have been able legally to bind the defendant in

respect to that alleged conduct in which he was in-

volved.

28 U.S.C. $1291:

The courts of appeals shall have jurisdiction of ap-

peals from all final decisions of the district courts of

the United States, the United States District Court

for the District of the Canal Zone, the District Court

of Guam, and the District Court of the Virgin Is-

lands, except where a direct review may be had in

the Supreme Court.

STATEMENT OF THE CASE

On December 19, 1972, a grand jury which had been em-

panelled in the Eastern District of Illinois to investigate

possible violations of the antitrust laws in the highway con-

struction industry in Illinois returned a one-count crim-

inal indictment charging nine companies and four indi-

viduals with violation of Section 1 of the Sherman Act

(15 U.S.C. $1), resulting in an action entitled United States

v. Champaign Asphalt Company et al., CR 72-67-D (E.D.

Ill. 1972). In connection with this criminal action, on

January 22, 1973, Chief Judge Henry S. Wise, pursuant

to Federal Rule of Criminal Procedure 16(a)(1)(A),

5

ordered the Department of Justice to permit the attorneys

for each of the corporate defendants to inspect and copy

the transcripts of the grand jury testimony of present or

former employees of each corporation who had power to

bind the corporation with respect to business activity which

was the subject of the indictment, and some disclosure was

made pursuant to this order. Subsequently, all the defen-

dants entered pleas of nolo contendere which were accepted,

and judgments were entered and sentences imposed. The

grand jury has long since been discharged.

On November 7, 1973, the State of Illinois filed in the

Southern District of Illinois a civil treble damage anti-

trust action entitled Illinois v. Champaign Asphalt Co., et

al., S-CIV-73-216 (S.D. Ill. 1973) and which is currently

still pending before that Court. The civil antitrust action

charges the same nine companies that had been defendants

in the criminal action plus five additional highway con-

struction companies with the same combination, con-

spiracy and activity alleged in the criminal indictment.*

In order to facilitate general discovery in its civil anti-

trust case, the State on July 26, 1974 petitioned the Dis-

trict Court for the Southern District of Illinois for an

* The following nine companies were defendants in the criminal

action and are now defendants in the civil antitrust action: Cham-

paign Asphalt Company; Culbertson Construction Company, Inc.;

LaNeil Construction Company, Inc.; Neal Lentz Construction, Inc. ;

O’Neil Brothers Construction Company; Shappert Enginecring

Company, Inc.; Shoemaker Bridge Company; J. L. Simmons Com-

pany, Inc.; and A. J. Walker Construction Company.

The following five additional companies are defendants only in

the civil antitrust action; Franklin-Cress Construction Company ;

Howell Asphalt Company; Huckaba & Sons Construction Com-

pany; Sangamo Construction Company; and The Standard Paving

Company.

6

order requiring John E. Sarbaugh, Chief of the Midwest

Office of the Antitrust Division of the Department of

Justice, whose office had conducted the prior grand jury

proceedings and criminal action, to produce for inspection

and copying grand jury transcripts which had been dis-

closed to any defendant in the criminal proceeding in the

Eastern District, to any defendant in the civil case, or to

any person not an attorney or staff member of the Depart-

ment of Justice. The State also served a request to produce

copies of the transcripts on each of the defendants in the

civil case and subsequently sought an order compelling

production of the copies. The District Court for the South-

ern District of Illinois denied the State of Illinois’ petition,

holding that the transcripts were outside the jurisdiction of

that Court because they related to a grand jury proceeding

in another district. The Court added:

No expression is intended by this Order on the

merits of those requests, only on the matter of the

jurisdiction of this Court.

The State of Illinois then petitioned the District Court

for the Eastern District of Illinois to require John E.

Sarbaugh to produce the grand jury transcripts, and to

also produce grand jury subpoenas and documents which

had been collected by the Eastern District grand jury in

connection with its highway industry investigation. John

E. Sarbaugh, on behalf of the Antitrust Division, filed a

response raising no objection to the requested production.

Consequently, on January 14, 1976, Chief Judge Wise en-

tered an order which in pertinent part provided as follows:

NOTICE IS HEREBY GIVEN and IT IS ORDERED

that all corporate and individual defendants in the

7

above-entitled cause file responses, if any, if they so

desire, to said petitions and memoranda in support

thereof on or before February 4, 1976... .

In response to Chief Judge Wise’s order, J. L. Simmons

Company and Shappert Engineering Company, defendants

in both the prior criminal proceeding and the pending civil

action, filed memoranda in opposition to the production

of the grand jury transcripts and the production of the

other grand jury materials. At the hearing on the State’s

petition held before Chief Judge Wise on February 26,

1976, other defendants in the criminal and civil cases

joined J. L. Simmons Company and Shappert Engineer-

ing Company during oral argument before the Court in

opposing the production of the grand jury transcripts. No

objection was made by the State to the intervention by the

defendants.

On May 7, 1976, Chief Judge Wise entered his Memoran-

dum Opinion and Order (Appendix B at B1) which denied

in all respects the State’s request for grand jury materials.

(Although the Memorandum Opinion bears the date April

7, 1976, it was in fact filed on May 7, 1976.) With re-

spect to the disclosure of the grand jury transcripts, the

District Court held:

None of this is to say, however, that where the rea-

sons for secrecy are minimal the civil litigant has a

right to the disclosure of grand jury minutes. Such a

practice would detract from the efficacy of the grand

jury. proceedings .... (Mein. Op., Appendix B at

B13.)

This Court will therefore decline to exercise its dis-

cretion in favor of releasing grand jury transcripts

ou the basis of an anticipated need for use in the dis-

covery stage of the proceedings. (Mem. Op., Appen-

*x B at B17-B18.)

On June 4, 1976, the State filed a Notice of Appeal from

only that part of the order of Chief Judge Wise which

denied to the State of Illinois access to the grand jury

transcripts. Subsequently, the defendants in the civil case

filed Motions to Dismiss the Appeal on the ground that

the order of the District Court for the Eastern District of

Illinois was not a final appealable order, and the State

moved to strike the appearances of the civil defendants as

not proper parties to the appeal. The Court of Appeals

then directed that the Motions to Dismiss the Appeal and

the Motion to Strike Appearances of the defendants in the

civil case be taken with the merits.

On April 8, 1977, the Court of Appeals reversed the order

of the District Court for the Eastern District of Illinois

that had refused to permit inspection and copying of grand

jury transcripts, and remanded the case to the District

Court for further proceedings consistent with its opinion.

In so deciding, the Court of Appeals held:

1. That the defendants in the civil antitrust case pending

in the Southern District of Illinois were properly inter-

venors in the proceedings in the Eastern District of Illi-

nois and therefore were proper parties-appellees to the

appeal (Appendix A at A8);

2. That the order of the District Court for the Eastern

District of Illinois denying disclosure of the grand jury

transcripts was a final appealable order (Appendix A at

AY);

3. That the grand jury transcripts may be disclosed for

use in the civil antitrust case, and the requisite need to

impinge on grand jury secrecy has been demonstrated, ‘‘if

the corporate employer of the grand jury witness whose

transcript is sought has obtained a copy of that transcript,

—— o---

and the witness is scheduled to be called to give testimony

either at trial or by deposition on the matters about which

he testified before the grand jury.’’ (Appendix A at A16).

On April 26, 1977, as the result of motions filed by Inter-

venors-Appellees J. L. Simmons Company, Inc. and Shap-

pert Engineering Company, the Court of Appeals stayed

the issuance of its mandate, pursuant to Federal Rule of

Appellate Procedure 41(b), pending the timely filing of

this Petition for a Writ of Certiorari (Appendix A at

Al9).

10

REASONS FOR GRANTING THE WRIT

I,

THE DECISION BELOW CONFLICTS WITH THE DE.

CISIONS OF OTHER COURTS OF APPEALS AS TO

WHETHER GRAND JURY TRANSCRIPTS SHOULD

BE DISCLOSED FOR PURPOSES OF GENERAL DIS-

COVERY IN CIVIL PROCEEDINGS.

The Court of Appeals for the Seventh Circuit recog-

nized that its opinion was in conflict with decisions of other

Courts of Appeals. At page 16n.15 of its slip Opinion, the

Court stated (Appendix A at A18):

In view of the inconsistency between our views on

the issues on intervention and appealability and on

the merits and those expressed in certain opinions of

other circuits, this opinion has been circulated among

all judges of this court in regular active service.

Judge Wood disqualified himself from any considera-

tion of this case. No judge favored a rehearing in

bane on any issue,

The Court below held that a particularized need for the

disclosure of the grand jury transcripts for use in the

civil antitrust case has been sufficiently shown ‘‘if the cor-

porate employer of the grand jury witness whose tran-

script is sought has obtained a copy of that transcript,

and the witness is scheduled to be called to give testimony

either at trial or by deposition on the matters about which

he testified before the grand jury. (Appendix A at A16).

The Court of Appeals reached this result despite the fact

that the grand jury transcripts were sought by the State

in connection with pretrial discovery proceedings and with-

out any showing whatsoever that the transcripts were

needed to impeach a witness or to refresh the recollection

of a witness, or that other avenues of discovery were closed.

The Court of Appeals believed its holding to be in line with

what it felt to be the minimal reasons for maintaining grand

jury secrecy in the case before it.

11

In so holding, the Seventh Circuit adopted a position in

direct conflict with that taken by the Fifth Circuit in Texas

v. United States Steel Corporation, 546 F.2d 626 (5th Cir.

1977). In that case, each corporate defendant in the prior

criminal action had obtained transcripts of grand jury

testimony of its own employees pursuant to a motion filed

in the criminal action under Federal Rule of Criminal

Procedure 16(a)(1)(A). As part of its discovery pro-

gram in its civil antitrust case, the State of Texas moved

to discover those transcripts. The Fifth Circuit reversed

the District Court’s order granting disclosure, holding that

‘‘(t}he general circumstance that another party has his

own or his employees’ transcript in his possession does

not, standing alone, establish particularized need sufli-

cient to overcome the need for grand jury secrecy.’’ 546

F.2d at 631. The Fifth Circuit based its holding on the

policy reasons behind grand jury secrecy, stating that

‘*“he one most pertinent to this case is the desire to create

a sanctuary, inviolate to any intrusion except on proof of

some special and overriding need, where a witness may

testify, free and unfettered by fear of retaliation.’’ 546

F.2d at 629. Thus, the conflict between the Seventh Cir-

euit and Fifth Circuit is complete.

The opinion of the Court of Appeals below is also in

conflict with the decision of the Second Circuit in Baker

v. United States Steel Corporation, 492 F.2d 1074 (2d Cir.

1974), although its holding with respect to the disclosure

of grand jury transcripts may technically be labeled as

dicta. In Baker, a private civil antitrust suit was filed in

the District of Connecticut. This civil suit resulted from

a criminal indictment against the same defendants which

had been filed in the Southern District of New York and

which was terminated by pleas of nolo contendere. The

plaintiffs in the civil action in Connecticut sought tran-

scripts of testimony given by witnesses before the grand

12

jury in the New York District, who at the time of testify-

ing were officials of the defendants, but who at the time

of the civil action were deceased.

Although the plaintiffs were unable to demonstrate a

compelling need for the transcripts, they succeeded in per-

suading the Connecticut District Court that the compelling

need test should not be applied. Lacking custody or con-

trol over the New York District’s grand jury minutes, the

Connecticut District Court requested the New York Dis-

trict Court to forward the grand jury transcripts to it.

After a hearing on the request before the New York Dis-

trict Court, that Court agreed to honor the request. The

defendants then appealed both the New York District

Court’s decision to honor the request, and the Connecticut

District Court’s decision to release the grand jury tran-

scripts.

In a 2-1 decision, the Second Circuit dismissed the ap-

peals, holding that neither decision was a final appealable

order. The Second Circuit, however, did not want the

dismissal of the appeals to be construed as approval of

the Connecticut District Court’s reasons for releasing the

transcripts, and the majority requested that District Court

to reconsider its ruling. The Court stated at 492 F.2d at

1079:

Having in mind that disclosure of grand jury pro-

ceedings may substantially inhibit the deliberations

of other grand juries and the willingness of witnesses

to appear and testify freely in the future, we would

not want our dismissal of these appeals to be con-

strued as approval of the standard of ‘‘slight need’’

formulated by the district court. ... [I]t seems to us

that where plaintiffs’ predicament is to such a large

extent of their own making and the use to which they

could put the transcripts so speculative, greater weight

should be given to the fact that, while some of the rea-

sons for maintaining secrecy no longer exist in this

13

case, other traditional reasons survive. As the Su-

preme Court stated in United States v. Procter &

Gamble Co., swpra, for instance, the institution of the

grand jury ‘‘might suffer if those testifying today

knew that... their testimony would be lifted tomor-

row,’’ 356 U.S. at 682, 78 S.Ct. 986. For the most

part the decisions relied upon by the district court in

support of its new ‘‘slight need’’ standard reveal the

existence of more specific, forceful and persuasive

exigencies than those shown here, which were de-

scribed by the courts in terms of compelling or par-

ticularized need. For instance, disclosure has been

permitted to enable counsel to perform the vital func-

tion of cross-examining a witness who is obligated

for other reasons to testify publicly with respect to

the same matters which were the subject of his grand

jury testimony. ... No such situation exists here. Nor

do these authorities support the proposition that

grand jury transcripts should be released to permit

general discovery in a civil case, as distinguished from

satisfying the compelling need for impeachment or

refreshment of a witness’ recollection, without any

showing that other possible sources have been exhaust-

ed or that the transcripts, if disclosed, would not be

publicized.

While dissenting Judge Lumbard disagreed with the ma-

jority and believed that the order of the District Courts

were final and appealable, he was in full agreement with

the majority that it was improper for the Connecticut Dis-

trict Court to order release of the grand jury testimony.

Judge Lumbard stated at 492 F.2d at 1080:

The majority agrees that it was improper for Judge

Newman to order the release of secret grand jury

testimony here simply on the showing of a ‘‘slight

need” for such testimony by the plaintiffs. While the

‘*narticularized need’’ test of Pittsburgh Plate Glass

Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237,

3 L.ed. 2d 1323 (1959) and United States v. Procter

& Gamble Co., 356 U.S. 677, 682-683, 78 S. Ct. 983,

14

2 L.ed. 2d 1077 (1958), has been eroded to some ex-

tent, no previous decision of this court has endorsed

a standard which would permit the breach of grand

jury secrecy merely for general discovery purposes.

Such a lenient standard would seriously jeopardize

the effective functioning of grand juries. Ready ac-

cess to grand jury minutes would likely have the effect

in the future of substantially inhibiting the delibera-

tions of the grand jury, and, perhaps more significant,

the willingness of witnesses to appear and testify free-

ly. With these consequences in mind, this court has

required a showing of exigent circumstances before

overriding the strong policy in favor of grand jury

confidentiality. See, eg., United States v. Young-

blood, 379 F.2d 365, 367 (2d Cir. 1967), Atlantic City

Electrical Co. v. A. B. Chance Co., 313 F.2d 431, 434

(2d Cir. 1963).

The plaintiffs have failed to point to such exigent

circumstances here in support of disclosure. They

seek to use secret grand jury testimony to obtain

‘‘leads’’ to competent evidence that could then be

used in this civil suit against the defendants. No show-

ing, however, has been made that the usual channels

of discovery have proved fruitless or have even been

diligently pursued. As the majority notes, plaintiffs

have yet to exhaust ‘‘the deposing of other live and

available witnesses who might provide the ‘leads’

plaintiffs seek to gain from disclosure of the grand

jury testimony of the deceased officials.’’

Since the plaintiffs sought the grand jury transcripts

of witnesses who were deceased, under the Seventh Cir-

cuit’s reasoning, the policy reasons behind grand jury

secrecy would not be applicable, and thus, the gran? jury

transcripts would be discoverable. Nonetheless, ‘1 Sec

ond Circuit concluded that the transcripts should not be

15

disclosed. Its decision, therefore, is in conflict with the

decision of the Court of Appeals below and in agreement

with the decision for the Fifth Circuit.

These conflicts justify the grant of certiorari to review

the judgment below.

Il.

THE DECISION BELOW HOLDING THAT GRAND

JURY TRANSCRIPTS SHOULD BE DISCLOSED FOR

PURPOSES OF DISCOVERY IN CIVIL PROCEEDINGS

INVOLVES IMPORTANT AND RECURRING QUES-

TIONS CONCERNING THE SECRECY OF GRAND

JURY PROCEEDINGS AND CONCERNING THE ROLE

OF THE GRAND JURY WHICH THIS COURT SHOULD

RESOLVE.

The decision below fails to follow the policy of grand

jury secrecy and the role set out for the grand jury by

this Court’s decision in Pittsburgh Plate Glass Company

v. United States, 360 U.S. 395, 3 L.ed. 2d 1323 (1959). In

that case, the defendants, who were convicted on a single-

count indictment charging a conspiracy under §1 of the

Sherman Act, contended that the trial court erred in re-

fusing to permit them to inspect the grand jury minutes

covering the testimony before that body of a key govern-

ment witness at the trial.

The defendants contended that they had a right to the

grand jury testimony, but this Court affirmed their convic-

tion, concluding that there was no right to the grand jury

transcript in the absence of a showing of a compelling

need, because to grant such a right would ‘‘inevitably de-

tract from [the grand jury’s] efficacy.’’ 360 U.S. at 400,

3 L.ed. 2d at 1327.

16

The Court reached this result over the dissent of four

members of the Court led by Mr. Justice Brennan, who

argued that because the witness whose grand jury testi-

mony was sought had testified in open court at the trial

of the defendants, none of the policy reasons behind grand

jury secrecy was applicable in that particular instance,

and therefore the grand jury transcripts shouid be dis-

closed. The majority of the Court, however, gave more

concern to the effective functioning of future grand juries.

The Court of Appeals below and other courts believe

that this Court’s decision in Pittsburgh Plate Glass has

been eroded by language in Dennis v. United States, 384

U.S. 855, 16 L.ed. 2d 973 (1966) and by decisions of lower

federal courts. While this Court’s decision in Pittsburgh

Plate Glass should have controlled the decision below, this

Court has not had occasion to address the precise issue

presented in this case, and has not since 1966 had occasion

to address itself to the disclosure of grand jury tran-

scripts in general. As a result, in addition to the conflict

between the Circuits referred to in Part I above, the issue

of disclosure of grand jury transcripts often arises in the

lower courts.

It is a common occurrence for private civil antitrust ac-

tions to follow on the heels of criminal antitrust actions. As

a result, the issue of disclosure of grand jury transcripts

poses a recurring problem which has not been, but should

be, settled by this Court. The case below raises the fol-

lowing significant questions of federal law:

1. To what extent does the disclosure of grand jury

transcripts for discovery purposes and without a demon-

stration of a compelling necessity impair the effective func-

tioning of future grand juries and lead to an abuse of the

grand jury function?

17

As this Court has recognized in Pittsburgh Plate Glass,

supra, and United States v. Procter & Gamble Co., 356

U.S. 677, 2 L.ed. 2d 1077 (1958), one of the purposes be-

hind grand jury secrecy is to encourage witnesses to step

forward and testify freely, and the grand jury is free from

technical rules and may return indictments based on hear-

say. The decision of the Court of Appeals for the Seventh

Circuit undermines the effective functioning of future

grand juries because testimony of witnesses will be par-

simonious and curtailed when they know that their testi-

mony will be in the hands of civil antitrust plaintiffs with-

out any showing of need.

2. Does the disclosure of grand jury transcripts im-

permissibly hinder a criminal corporate defendant’s right

to employ the discovery procedures of Federal Rule of

Criminal Procedure 16(a)(1)(A) and also unconstitution-

ally hinder a criminal corporate defendant’s right to coun-

sel?

Under Federal Rule of Criminal Procedure 16(a)1(A),

a corporate defendant is entitled to inspect the grand

jury testimony of any witness who was, at the time of his

testimony, so situated as an officer or employee as to have

been able to legally bind the corporation with respect to

the business activity which is the subject of the indictment.

The decision of the Court below abrogates this right grant-

ed to the corporation by Congress because to look at the

transcripts in preparation of a criminal defense is to turn

the transcripts over to civil antitrust plaintiffs. And by

so denying the criminal corporate defendant the right to

inspect the grand jury transcripts in preparation for its

defense, the decision of the Court of Appeals also imper-

missibly burdens the criminal corporate defendant’s con-

stitutional right to effective assistance of counsel. See

United States v. Jackson, 390 U.S. 570, 20 L.ed.2d 138

(1968) ; Hancock Brothers, Inc. v. Jones, 293 F.Supp. 1229

(N.D. Cal. 1968).

18

These reasons further justify the issuance of a writ of

certiorari to review the judgment below.

Tir.

THE DECISION BELOW THAT THE ORDER OF THE

DISTRICT COURT FOR THE EASTERN DISTRICT

OF ILLINOIS IS A FINAL APPEALABLE ORDER IS

AN ERRONEOUS DECISION OF AN IMPORTANT

QUESTION OF FEDERAL LAW CONCERNING THE

JURISDICTION OF FEDERAL COURTS OF APPEALS

AND THE FEDERAL POLICY AGAINST PIECEMEAL

REVIEW.

The decision below has held that the order of the Dis-

trict Court for the Eastern District of Illinois denying dis-

covery of the grand jury transcripts for use in connection

with the civil proceeding pending in the Southern District

of Illinois is a final order, and therefore appealable as a

final decision under 28 U.S.C. §1291. Under the Seventh

Circuit’s decision, therefore, an order denying discovery

entered by a district court which is in a different district

from that in which the main action is pending, but which is

nevertheless within the same appellate circuit, is a final

appealable order, even though review of the order may be

had by the appellate court at the conclusion of the pro-

ceedings in the district where the main action is pending.

It is often the case that discovery is sought from a wit-

ness or other person who resides, transacts business or

is employed in a district different from the one in which

the main proceeding is pending, and therefore under Fed-

eral Rule of Civil Procedure 45 outside the jurisdiction

for discovery purposes of the district court where the main

proceeding is pending. Under the decision below, every

19

order denying discovery entered by a district court within

the same appellate circuit as the district in which the main

proceeding is pending will be appealable as a final order

even though the main action has not been concluded. As

a result, the effective conduct of litigation will be impaired

by piecemeal appeals and the Court of Appeals will be fur-

ther overburdened.

Accordingly, the decision of the Court of Appeals for

the Seventh Circuit involves recurring and important ques-

tions of federal law concerning the jurisdiction of federal

Courts of Appeals and the Congressional policy against

piecemeal review. In Cobbledick v. United States, 309

U.S. 323, 324-25, 84 L.ed. 783, 785 (1940), this Court stated:

Finality as a condition of review is an historic charac-

teristic of federal appellate procedure. It was written

into the first Judiciary Act and has been departed

from only when observance of it would practically de-

feat the right to any review at all... . [CJjongress

from the very beginning has, by forbidding piecemeal

disposition on appeal of what for practical purposes

is a single controversy, set itself against enfeebling

judicial administration.

This Court has not had occasion to address itself to the

issue of appealability presented by this Petition, but prior

decisions of this Court and of the federal Courts of Appeals

demonstrate that the opinion below erroneously decided

an important question of federal law.

The general rule is that the Courts of Appeals have juris-

diction to review orders or rulings by a district court made

in connection with litigation pending before it only after

the district court has made a final decision—that is, a de-

cision that has disposed of the entire litigation pending

20

before the court. The reason behind this policy of finality

is to achieve the effective conduct of litigation by avoid-

ing piecemeal review. Cobbledick v. United States, supra,

at 324-26, 84 L.ed. at 785.

Accordingly, if an order of a district court can be re-

viewed at the conclusion of the entire litigation, the policy

behind the final decision rule requires that review wait

until that time, and the order is therefore not considered

to be a final appealable order. An order compelling or

denying discovery of a party can be reviewed at the con-

clusion of the main litigation, and thus, it has been re-

peatedly held that such orders are interlocutory and not

appealable. Cobbledick v. United States, supra; Ryan v.

Commissioner, 517 F.2d 13, 18 (7th Cir.), cert. denied

423 U.S. 892 (1975); Caswell v. The Manhattan Fire &

Marine Insurance Co., 399 F.2d 417, 422 (5th Cir. 1968).

This federal policy against fragmentary review is a

strong policy that is not easily overcome. For example, if

a district court compels discovery of a non-party witness,

no review of the order would be available at the conelu-

sion of the main litigation because the witness would not

be a party to the appeal. Nonetheless, the policy behind

the final decision rule does not permit the non-party wit-

ness to take an immediate appeal. Rather, in order to

overcome the policy against fragmentary appeals, the non-

party witness must subject himself to a finding of con-

tempt in order to obtain review of the discovery order

through appeal of the contempt citation. Alexander v.

United States, 201 U.S. 117, 50 L.ed. 686 (1906); Ryan v.

Commissioner, supra, 517 F.2d at 19-20.

Orders denying discovery of non-party witnesses which

have been entered by a district court of a district differ-

21

ent from the one in which the main proceeding is pending

have been held to be final decisions for purposes of appeal.

Premium Service Corp. v. The Sperry & Hutchinson Co.,

511 F.2d 225 (9th Cir. 1975); Republic Gear Company v.

Borg-Warner Corporation, 381 F.2d 551 (2d Cir. 1967);

Carter Products, Inc. v. Eversharp, Inc., 360 F.2d 868 (7th

Cir. 1966); Horizons Titanium Corporation v. Norton

Company, 290 F.2d 421 (1st Cir. 1961). That holding, how-

ever, has arisen in the situation where the district of the

district court denying discovery is outside the appellate

circuit containing the district of the district court where

the main proceeding is pending. In that situation, unless

an appeal from the denial of discovery is allowed, the

party seeking discovery would be precluded from obtaining

any review because the appellate court which would re-

view the main proceedings at their termination would be

unable to review the order of that district court or to in-

struct that court because that district court would not

be within the appellate court’s jurisdiction. The above

eases which have held an order denying discovery to be

appealable in such a situation have been careful to clearly

state that their opinions were limited to the situations

where the district court denying discovery and the persons

and materials sought were beyond the jurisdictional reach

of the appellate circuit where the main proceeding was

pending. See also Shattuck v. Hoegl, 523 F.2d 509, 514-15

(2d Cir. 1975); Ryan v. Commissioner, supra, 517 F.2d at

18.

In contrast to the situation described in the cases above,

the situation presented to this Court is one in which both

the district in which the main proceeding is pending and

the district containing the district court in which the dis-

covery was denied are within the same appellate circuit.

Consequently, there is no jurisdictional barrier which

would have prevented the Court of Appeals below from re-

viewing the denial of discovery at the conclusion of the

main litigation. Since review would be available at the

conclusion of the main litigation in the Southern District,

and the Court of Appeals would be able to instruct and

direct the District Court for the Eastern District, the policy

behind the final decision rule mandates that review wait

until that time and that the order of the District Court

for the Eastern District of Illinois be found not to be a

final appealable decision. Baker v. United States Steel

Corp., supra, 492 F.2d at 1078. As the Seventh Circuit

itself noted at page 8 n.7 of its slip Opinion, the rationale of

Baker on the issue of appealability ‘‘does not appear to

be in harmony with the view we have adopted.’’ (Appendix

A at A9.)

The decision below fails to distinguish whether the dis-

trict of the district court denying discovery is within or

without the appellate circuit containing the district where

the main proceeding is pending. The decision, therefore,

raises the anomalous situation that where both district

courts involved are within the same appellate circuit, in

order to obtain review of an order granting disclosure, a

non-party witness must bear the pain of contempt, but if

disclosure is denied, the party seeking disclosure may with-

out further burden immediately appeal. The final decision

rule should not be interpreted to have such an inequitable

impact, especially in light of the fact that certification of

the denial of discovery could have been sought, but was

not, pursuant to 28 U.S.C. §1292(b).

The decision below will impede the effective conduct of

litigation and further burden an already overworked fed-

eral appellate court system. These are consequences the

23

final decision rule and the federal policy against piecemeal

review were designed to avoid.

This Court should grant certiorari to review the decision

of the Court below in order to correct and settle an im-

portant question of federal law.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Seventh Circuit.

Respectfully submitted,

Ricuarp A. Makarsk1

Srantgy B. Buiock

Autan E, Lapipus

Suite 1600

111 W. Monroe Street

Chicago, Illinois 60603

Of Counsel:

Mark P. Conen

CuapmMan & CuTLER

Suite 1600

Vepper, Price, Kaurman & Kammnouz

Suite 3000

Harris Bank Building

111 W. Monroe Street

Chicago, Illinois 60603

APPENDIX

—— — ee -

APPENDIX A

In the

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

No. 76-1690

Strate Or Iuirors,

Petitioner-A ppellant,

v.

- Joun E. Sarpavon, Chief, Midwest Office, Antitrust Divi-

sion of the United States Department of Justice,

Respondent-A ppellee,

J. L. Stmmons Company, Inc., et al.,

Intervenors-A ppellees.

Appeal from the United States District Court for the

Eastern District of Illinois, Danville Division.

an re Grand Jury Proceedings

No. CR-72-67-D—Henry 8S. Wisz, Judge.

Arcuep Decemser 1, 1976—Dectpep Apri. 8, 1977

Before Cumminos and Tone, Circuit Judges, and Grant,

Senior District Judge.*

Tong, Circuit Judge. This is an appeal from an order

of the District Court for the eastern District of Illinois

refusing to permit inspection and copying of grand jury

transcripts. Inspection is sought by the State of Illinois,

* The Honorable Robert A. Grant, Senior District Judge of

the United States District Court for the Northern District of

Indiana, is sitting by designation.

A2

plaintiff in a private treble-damage antitrust action pend-

ing in the Southern District of Illinois, for use in connec-

tion with that action. Among the defendants in that action

are nine corporations indicted by the EKastern District

grand jury who, during the pendency of the now-concluded

criminal action, obtained copies of the transcripts pur-

suant to Rule 16(a)(1)(A), Fed. R. Crim. P. We decide

that those corporations may intervene in the proceeding,

that the order denying inspection is appealable, and that

the state should have access to the transcripts subject to

certain conditions.

The Criminal Case in the Eastern District

The indictment in the Eastern District charged the

corporate defendants, highway construction contractors,

and four of their officers with violating § 1 of the Sher-

man Act, 15 U.S.C. § 1, by submitting rigged bids to the

State of Lllinois and allocating among the corporate de-

fendants projects let by the state in connection with the

construction of an interstate highway. The Eastern Dis-

trict court’s inspection order directed the Department of

Justice to permit the attorneys for each of the corporate

defendants to inspect and copy the transcripts of the grand

jury testimony of present or former employees of the cor-

poration who had power to bind it with respect to business

activity which was the subject of the indictment. Rule

16(a)(1)(A), Fed. R. Crim. P. Disclosure was made pur-

suant to the order. Subsequently all the defendants en-

tered pleas of nolo contendere, which were accepted, and

judgments were entered and sentences were imposed. The

grand jury has long since been discharged.

A3

The Civil Case in the Southern District

The state’s treble-damage action in the Southern Dis-

trict was based on the same facts and sought recovery of

overcharges resulting from the alleged conspiracy. In

addition to the nine companies charged in the Eastern

District indictment, five other highway construction com-

panies were named as defendants. The state moved for

an order requiring John E. Sarbaugh, Chief of the Anti-

trust Division’s Midwest Office, to produce for inspection

and copying grand jury transcripts which had been dis-

closed to any defendant in the criminal proceeding in the

Eastern District, to any defendant in the civil case, or to

any person not an attorney or staff member of the Depart-

ment of Justice. The state also served a request to pro-

duce copies of the transcripts on each of the defendants

in the civil case and subsequently sought an order com-

pelling production of the copies. The court denied relief,

holding that the transcripts were outside the jurisdiction

of that court because they related to a grand jury proceed-

ing in another district. The court added:

‘*No expression is intended by this Order on the merits

of those requests, only on the matter of the jurisdiction

of this Court.’’

The Proceeding Below

The state then petit’oned for the same relief against

respondent Sarbaugh in the Eastern District, pursuant

to Rule 6(e) of the Federal Rules of Criminal Procedure.

His response to the petition raised no objection. The state

served notice of this petition on the corporate defendants,

and, upon their objections to disclosure, the District Court

held a hearing at which the corporate defendants were

A4

allowed, without objection, to appear and be heard. The

District Court then, in the order appealed from, denied the

petition, holding that the requisite particularized showing

of compelling necessity had not been made. The court,

however, ordered the transcripts transferred to the South-

ern District so they would be available for disclosure by

that court if a sufficient showing of necessity were made

during the trial.’

The court also denied a motion by the state for produc-

tion of documents, in which it sought to inspect all sub-

poenas and documents in the custody of respondent Sar-

baugh which had been collected by the Eastern District

grand jury in connection with its highway industry investi-

gation. Respondent Sarbaugh was ordered, however, to

return all corporate documents in his possession to the

defendants, so those documents would be available for dis-

covery by the state.* The ruling on the motion to produce

documents is not challenged on appeal.

1 The District Court said:

“The Court believes that it would be entirely proper for

petitioner to move for production of the requested transcripts

at the time of the trial of the civil suit to use for purposes of

impeachment, refreshing recollection and challenging credibility

of these witnesses who had previously testified before the grand

jury. At that time petitioner would be in a position to establish

compelling need, for example, by pointing to a failure of memory

on the part of a witness, a showing of contradiction between

the testimony and reliable documentary evidence or perhaps

by prevailing upon the trial court for an in camera examination

of the transcripts to uncover any inconsistencies.”

* The policy of grand jury secrecy obviously had a much more

limited application to the subpoenaed documents than it did to grand

jury transcripts. See United States v. Interstate Dress Carriers,

Inc., 280 F.2d 52, 54 (2¢ Cir. 1960).

A5

The objectors, designating themselves intervenors and

appellees, have moved to dismiss the appeal, and the state

has moved to strike the appearances of the intervenors.

Both motions were ordered taken with the merits.

Consistent with his position before the District Court,

respondent Sarbaugh does not oppose the relief sought

by the state. Only the intervenors oppose that relief.

Il. Intervention’

The state contends that the corporations resisting dis-

closure of the transcripts should not be considered in-

tervenors because they did not comply with the require-

ments of Rule 24(c), Fed. R. Civ. P., when they appeared

in the District Court. Any right the state may otherwise

have had to rely on this failure was lost, however, when

it did not object on this ground in the District Court. Cf.

Klein v. Nu-Way Shoe Co., 136 F.2d 986, 989 (2d Cir. 1943) ;

see 3B Moore’s Federal Practice § 24.12{1] at 24-504

(1975). In fact, in the District Court the state asserted

no objection whatsoever to the intervenors’ appearance.

By notifying them of the petition, failing to object to the

order inviting them to appear, and never raising any ques-

tion of their right to appear, the state waived any objec-

tion to their intervention.

In any event, we think the objecting defendants were

entitled to intervene. The Third Circuit reached the op-

posite result in a per curiam opinion in United States v.

3 Normally we would consider first the issue of our jurisdiction.

Here, because the motion challenging the appealability of the Dis-

trict Court’s order was filed by the inte?venors, not the named defen-

dant, it is convenient to consider their status before ruling on their

motion. We would of course be required to consider the issue of

our jurisdiction whether or not it was raised by a party.

oe

A6

American Oil Co., 456 F.2d 1043, 1044 (1972), framing the

issue as one of standing and stating that the criminal pro-

ceeding had terminated, ‘‘the order to produce was not

directed to the defendants,’’ and ‘‘[t]he government’s

right in such a situation is not before us.’’ This court,

however, in Jn re Special February 1971 Grand Jury \v.

Conlisk, 490 F.2d 894 (7th Cir. 1973), decided on its merits

a challenge to a disclosure order by witnesses before the

grand jury who sought to prevent disclosure of their testi-

mony for use in proceedings against them before a board

of inquiry of the Chicago Police Department. The police-

men were of course not only parties to the board proceed-

ing but, unlike intervenors here, were themselves witnesses

before the grand jury.‘ Yet, if the Third Circuit’s reason-

ing had been applied, they would have lacked standing.

Similarly, in Jn re Holovachka, 317 F.2d 834 (7th Cir.

1963), a witness before the grand jury was given leave to

intervene in the district court for purposes of opposing

disclosure of his testimony and was heard in this court.

While the standing issue appears not to have been raised

in either Special February 1971 Grand Jury or Holovachka

and was not mentioned in either opinion, there would have

been no case before the court in the absence of standing,

so the failure to dismiss either appeal is not without sig-

nificance. Nevertheless, it is appropriate to state our rea-

sons for differing with the Third Circuit.

Under Rule 6(e), Fed. R. Crim. P., disclosure of occur-

rences before the grand jury by attorneys and other de-

scribed persons may be made ‘‘only when so directed by

the Court.’’ Although the rule does not say so specifically,

*Rule 16(a)(1)(A), however, treats grand jury testimony by

certain corporate employees as though the corporation itself had been

the witness.

A7

the reference must be to the court of the district in which

the grand jury was convened. See Gibson v. United States,

403 F.2d 166, 167 (D.C. Cir. 1968). It is that court that

has the responsibility for enforcing Rule 6(e) and main-

taining the secrecy of the grand jury proceedings.

Rule 6(e) also omits to state whether any one is en-

titled to object to disclosure. As respondent Sarbaugh

points out, however, the rule seems to contemplate a pro-

ceeding of some kind, judicial proceedings are not normal-

ly ex parte, and persons in the situation of the intervenors

are likely to be the only ones to object to an order for dis-

closure. If they are not allowed to appear, the advantages

of an adversary proceeding are lost.

Applying the standards governing intervention in civil

cases, the intervenors have an interest sufficient to satisfy

the requirement of standing and to entitle them to inter-

vene. See Rule 24(a)(2), Fed. R. Civ. P. It is true, as the

state points out, that the reasons underlying the policy

of secrecy do not include protection of indicted persons.

See United States v. Proctor & Gamble Co., 356 U.S. 677,

681-682 no.6 (1958); Pittsburgh Plate Glass Co. v. United

States, 360 U.S. 395, 400 (majority), 405 (Brennan, J.,

5 We do not imply disapproval of the procedure adopted by the

District Court in this case of transferring the transcripts to the Dis-

trict in which the trial was to be held, so that court can make

determinations of particiularized need during trial, which the trans-

feror court is not in a pesition to do. In a case in which the

secrecy of the transcripts had not already been partially breached,

see Part III, infra, and there is a likelihood that a particularized

need will arise during trial, that procedure would be eminently

sensible and, we believe, within the power of the court in which

the grand jury is convened. Cf. Baker v. United States Steel Corp.,

492 F.2d 1074, i076-1077, 1078 (2d Cir. 1974); Gibson v. United

States, 403 F.2d 166, 167-168 (D.C. Cir. 1968).

A8

dissenting) (1959); In re Special February 1971 Grand

Jury v. Conlisk, supra, 490 F.2d at 895-896. Indicted per-

sons now defending a civil action involving the same facts

are, however, among those who would be adversely affected

by disclosure of the information, and therefore should

have a right to be heard.

Finally, at least if the civil case is pending before the

court of the district in which the grand jury was con-

vened,® essentially the same issue of whether the tran-

scripts which were made available to defendants in the

criminal case are subject to discovery for use in the civil

case can alternatively be presented in the civil case itself,

as it was, for example, in Proctor @ Gamble, supra. See

also State of Texas v. United States Steel Corp., No.

76-2781 (5th Cir. Feb. 3, 1977), Slip Op. at 1333. The

right of the defendants in the criminal case to be heard

on the issue of disclosure should be the same in either pro-

ceeding.

The motion to strike intervenors’ appearances as appel-

lees is accordingly denied.

U. Appealability

As we have noted, Rule 6(e), Fed. R. Crim. P., vests

jurisdiction to release the grand jury transcripts in the

United States District Court for ihe Eastern District of

Illinois. The instant petition was filed there as an in-

dependent proceeding after the discharge of the grand

jury and the termination of the criminal action initiated

® See text at note 5, supra. Plaintiff at bar asked the court in the

civil case to order the defendants to produce copies but that court

declined to act on the ground that it lacked jurisdiction. See the

summary of the proceedings below, supra.

AQ

by the indictment. This subsequent independent proceed-

ing was terminated by the District Court’s order denying

the petition, which ‘‘disposes of the contentions of all the

parties, leaving nothing else to be decided,’’ ‘‘ends the

controversy before’’ the District Court, and is therefore

appealable under 28 U.S.C. § 1291. United States v. Byotr,

147 F.2d 336, 337 (5th Cir. 1945); Gibsen v. United States,

supra, 403 F.2d at 167. Compare, United States ex rel.

Hi-Way Electric Co. v. The Home Indemnity Co., No. 76-

1242 (7th Cir. Feb. 11, 1977), Slip Op. at 5. An order re-

fusing disclosure (as in Gibson) was distinguished for

purposes of appealability from one that grants disclosure

(as in Byoir) in dictum in Baker v. United States Steel

Corp., 492 F.2d 1074, 1078 (2d Cir. 1974). In that case

the court held unappealable both an order of disclosure

by the court to which grand jury transcripts had been

transferred and the transferor court’s order of transfer.

Compare, however, Judge Lumbard’s dissent in that case

and In re Biaggi, 478 F.2d 489 (2d Cir. 1973).7

Our conclusion that the order is final is not altered by

the transfer of the documents to the Southern District of

Illinois for possible future disclosure in the proceeding

pending there. That a court of another jurisdiction in

another case may ultimately grant part of the relief de-

nied by the order on the basis of a particularized need

appearing later does not render interlocutory an order

effectively terminating the proceeding in the Eastern Dis-

trict. We therefore deny the motions to dismiss the appeal.

* Our case is distinguishable from Baker on its facts, and the

majority there did imply that an order denying discovery may

be appealable even though one granting it is not. Neverthe-

less, the rationale of the majority does not appear to be in har-

mony with the view we have adopted.

A10

Ill. The Merits

Disclosure authority is granted the court in broad terms

in Rule 6(e): disclosure outside the criminal proceeding

may be made ‘‘preliminarily to or in connection with a

judicial proceeding.’? The Supreme Court has declared

that the secrecy protected by Rule 6(e) ‘‘must not be

broken except where there is a compelling necessity,”’

which ‘‘must be shown with particularity.’’ United States

v. Proctor & Gamble Co., supra, 356 U.S. at 682; Pittsburgh

Plate Glass Co. v. United States, supra, 360 U.S. at 399-

400. This standard may have ‘‘been eroded to some ex-

tent,’’ Baker v. United States Steel Corp., supra, 492 F.2d

at 1080 (Lumbard, J., dissenting), by language in Dennis

v. United States, 384 U.S. 855, 869-871 (1966), if not by

decisions of lower federal courts led by U.S. Industries,

Inc. v. United States District Court, 345 F.2d 18, 21 (9th

Cir.), cert. denied, 382 U.S. 814 (1965), which held that

when the reasons for the policy of secrecy ‘‘do not apply

at all in a given situation, or apply to only an insignificant

degree, the party seeking disclosure should not be required

to demonstrate a large compelling need.” *® Accord, In re

Cement-Concrete Block, Chicago Area, Grand Jury Pro-

ceedings, 381 F.Supp. 1108 (N.D. Ill. 1974); State of

SIn U.S. Industries the Ninth Circuit permitted discovery in

a civil antitrust action of a presentence memorandum containing

“information within the purview of the grand jury secrecy provision

of Rule 6(e) ....” The court found that only one of the policies

behind grand jury secrecy was applicable, “that of insuring un-

trammeled disclosure by future grand jury witnesses.” (Emphasis

in original.) Inasmuch as the witnesses’ employers had already

inspected the government report, however, the court found that

minor redactions in the document could avoid any adverse impact

on future grand jury witnesses. The court then permitted dis-

covery of the document, because of its view that it would be “highly

inequitable and averse to the principles of federal discovery to allow

one party access to a government document and not the other.”

Id., 345 F.2d at 23.

i

All

Connecticut v. General Motors Corp., 1974-2 Trade Cases

§ 75, 138 (N.D. Ill. 1974); In re Arizona Dairy Products

Litigation, 1976-1 Trade Cases §/ 60,910 (D. Ariz. 1975).

Compare also Jn re Special February 1971 Grand Jury

v. Conlisk, supra, 490 F.2d 894, with In re Holovachka,

supra, 317 F.2d 834. However this may be, there still

exists in civil cases and cases in which disclosure is not

provided for as a matter of right in 18 U.S.C. § 3500(e) (3)

and Rule 16(a)(1)(A), Fed. R. Crim. P., a requirement

that the party seeking disclosure show a need commen-

surate with the degree of secrecy remaining and the policy

reason that justifies protecting that secrecy. The state

concedes as much in the case before us.

The level of need has been said to diminish as the reason

for preserving secrecy becomes less compelling. U. S.

Industries, Inc. v. United States District Court, supra, 345

F.2d at 21; see also State of Illinois v. Harper & Row

Publishers, Inc., 50 F.R.D. 37, 41 (N.D. Ill. 1969). When

a grand jury has completed it work and the criminal pro-

ceedings initiated by its indictment have been concluded,

several of the reasons for secrecy, see United States v.

Proctor & Gamble Co., supra, 356 U.S. at 681 n.6, no longer

remain.’ The reason that survives the grand jury’s term

and the criminal proceeding is the need to protect the

grand jury witnesses from retaliation, lest witnesses be-

fore future grand juries be inhibited by the knowledge

‘‘that the secrecy of their testimony [may] be lifted to-

morrow.’’ United States v. Proctor € Gamble Co., supra,

356 U.S. at 682. That is what we are concerned with here.

®In United States v. Socony-Vacuum Oil Co., 310 U.S. 150,

234 (1940), the Court said that “after the grand jury’s functions

are ended, disclosure is wholly proper where the ends of justice

require it.” While this statement may appear to have been limited

by Proctor & Gamble and Pittsburgh Plate Glass, it was quoted with

approval in Dennis, 384 U.S. at 870.

_ ae

A12

In an antitrust context, the force of this reason is con-

siderably diminished by the disclosure pursuant to Rule

16(a)(1)(A) to the witness’ corporate employer, who has

greater incentive and power to retaliate than anyone else.

Once the employer has the transcript, all that remains of

the reason for secrecy is the need to protect the witness,

to the extent it is still possible to do so, from potential

adverse effects on his future relationships with members

of the industry other than his employer. This residual

need cannot be dismissed as unworthy of any consideration,

cf. Pittsburgh Plate Glass Co. v. United States, swpra, 360

U.S. at 400, but it can be adequately dealt with by a protec-

tive order.

One additional factor will sometimes narrow the remain-

ing zone of secrecy and further dilute what remains of the

reason for secrecy. As illustrated in this case by the dis-

closure of transcripts by at least one of the intervenors to

a co-defendant, the need of joint defendants to cooperate

in their common defense will often lead to further dis-

closures within the group of defendants in the criminal

case and sometimes to those who may be added in the

civil case. Such further disclosure may, of course, be

restricted by court order” or, as in State of Texas v.

United States Steel Corp., supra, No. 76-2781, Slip Op.

at 1334, by voluntary agreement among the defendants

not to share the transcripts. When transcripts are shared,

however, the group of potential retaliators who do not

We recognize that Rule 6(e) includes the provision, “No

obligation of secrecy may be imposed upon any person except in

accordance with this rule.” The rule also provides, however, thet

the court may permit disclosure “preliminarily to or in connection

with a judicial proceeding,” an authority which, we believe, in-

cludes the power to prohibit one receiving disclosure pursuant to

that authority from making any further disclosure that is not re-

quired in connection with that judicial proceeding.

A13

know of the grand jury testimony is reduced and so is the

importance of maintaining secrecy.

We are not persuaded, however, by the state’s argu-

ment, supported by State of Connecticut v. General Motors

Corp., supra, 174-2 Trade Cases {| 75,138, that all secrecy

was lost in the case at bar as a result of the unconditioned

orders for disclosure to the intervenors when they were

defendants in the criminal case. Even though those cor-

porations were not restrained by the terms of the orders

from disclosing the transcripts indiscriminately, they re-

ceived disclosure in the exercise of their rights under Rule

16(a)(1)(A) and for use in preparing the defense of the

criminal case. Given this and the unlikelihood that the

corporations would make further disclosures not related

to the defense of litigation, we think there remained a re-

sidual secrecy deserving of some protection.

Having considered what remains of the reason for

secrecy in the case at bar, we turn to the level of par-

ticularized need that must be shown to warrant disclosure.

Usually, if not invariably, a need for disclosure arises

from a litigant’s interest in seuring accurate and truthful

testimony from witnesses. E.g., Dennis v. United States,

supra, 384 U.S. at 872-873. Courts have generally recog-

nized, as the District Court did in the case at bar, that the

trial testimony of a witness may give rise to a particu-

larized need for a grand jury transcript of his testimony

for use in impeaching him or refreshing his recollection.”

11 Whatever Dennis left of the requirement that a defendant in a

federal criminal case show a particularized need to obtain the tran-

script of a prosecution witness’ grand jury testimony, see 384 U.S.

at 871-874, was swept away by the amendment of 18 U.S.C. §

3500(e), part of the Organized Crime Control Act of 1970, Pub.

L. No. 91-452, 84 Stat. 922, 926 (1970).

|

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Al4

United States v. Proctor & Gamble Co., supra, 356 U.S. at

683. Deposition testimony may also give rise to such a

need. Atlantic City Electric Co. v. A. B. Chance Co., 313

F.2d 431 (2d Cir. 1963), cited with approval in Dennis,

384 U.S. at 870 n.15; State of Illinois v. Harper & Row

Publishers, Inc., supra, 50 F.R.D. at 40-42. If a witness

is required to testify publicly about matters previously

dealt with in his grand jury testimony, there is little to be

said for not allowing the use of his earlier testimony to

assure the accuracy of his later testimony. See Baker v.

United States Steel Co., supra, 492 F.2d at 1079.

The unfairness of permitting one side ‘‘to have exclu-

sive access to a storehouse of relevant fact’’ was an-

other factor bearing on need which was given explicit

recognition in Dennis, 384 U.S. at 873. See also U.S. In-

dustries, Inc. v. United States District Court, supra, 345

F.2d at 23; In re Cement-Concrete Block, Chicago Area,

supra, 381 F.Supp. at 1111. While Proctor & Gamble and

Pittsburgh Plate Glass teach us this factor is not decisive,

it is to be weighed with the degree of secrecy remaining

and the possibility of guarding by protective order the

interests that secrecy serves to protect.”

12 Another factor enhancing the particularized need in the case

at bar, although we believe a sufficient showing has been made

without it, is the lapse of time between the events in issue and the

testimony the witnesses will give in depositions or trial. Cf. Dennis

v. United States, supra, 384 U.S. at 872. The grand jury testimony

was given during 1972. While some of the delays in pretrial pro-

ceedings in the civil case are chargeable to the plaintiff, it under-

standably would wish to postpone taking the deposition of a witness

until it had exhausted the possibility of obtaining his grand jury

transcript for use in connection with the deposition. The degree

of plaintiff's responsibility for delay is not comparable to that in

Baker v. United States Steel Corp., supra, 492 F.2d at 1079.

ee >

Al5

The remaining question is whether, in order to es-

tablish particularized need, it must also be shown that

the witness’ trial or deposition testimony is inconsistent

with his grand jury testimony or that his memory has

faltered or failed with respect to a matter he was able

to recall before the grand jury. If this is necessary, need

cannot be shown without the intervention of a judge to

read and compare, in camera, the earlier and later testi-

mony. This has been the traditional practice for both trial,

see Dennis v. United States, supra, 384 U.S. at 874, and

deposition, see Atlantic City Electric, supra, and Harper

é Row," supra, testimony and is the procedure for which

the government argued in Dennis. The Supreme Court,

however, found it inadequate in the following words:

‘‘Trial judges ought not to be burdened with the task

or the responsibility of examining sometimes volumi-

nous grand jury testimony in order to ascertain incon-

sistencies with trial testimony. In any event, ‘it will

be extremely difficult for even the most able and ex-

perienced trial judge under the pressures of conduct-

ing a trial to pick out all of the grand jury testimony

that would be useful in impeaching a witness.’ Pitts-

burgh Plate Glass, 360 U.S., at 410 (dissenting opin-

ion). Nor is it realistic to assume that the trial court’s

judgment as to the utility of material for impeachment

or other legitimate purposes, however conscientiously

made, would exhaust the possibilities. In our adversary

system, it is enough for judges to judge. The deter-

mination of what may be useful to the defense can

properly and effectively be made only by an advo-

eate.’’ 384 U.S. at 874-875.

18In Harper & Row the trial judge, having found discrepancies

and memory { jlures with respect to the depositions of a number oi

witnesses from his in camera inspection of their grand jury testi-

mony, ordered transcripts of other witnesses’ grand jury transcripts

disclosed to the plaintiffs. Jd., 50 F.R.D. at 42.

A16

Although Dennis was a criminal case, the quoted passage

seems equally applicable to civil cases. Moreover, when

the in camera procedure is invoked for deposition testi-

mony, an intolerable burden is often placed on district

judges, cf. State of Illinois v. Harper & Row Publishers,

Inc., supra, 50 F.R.D. at 40-42.

Given the residual reason for secrecy in a case such as

this, we believe that a particularized need for the limited

disclosure we prescribe below is sufficiently shown if the

corporate employer of the grand jury witness whose tran-

script is sought has obtained a copy of that transcript,

and the witness is scheduled to be called to give testimony

either at trial or by deposition on the matters about which

he testified before the grand jury.

The restrictions upon the disclosure which we adopt to

protect the remaining limited interest in secrecy are sug-

gested by Judge Robson’s opinion in Cement-Concrete

Block, supra, 381 F.Supp. at 1110:

‘*(Tjhis danger may be obviated by limiting the dis-

closure to the attorneys of record [in the treble-dam-

age case] for use in that litigation only for the pur-

poses of impeachment, refreshing the witness’ recol-

lection and testing credibility.’’

To aid in enforcing this condition, the District Court

should release the transcripts to a single attorney for

plaintiff and require him to keep and ultimately file with

the court a log showing to whom and when each transcript

or portion thereof has been shown. To these restrictions

should be added a prohibition against copying and a re-

quirement that the transcripts be returned when they are

no longer needed for the prescribed use. See State of Illi-

nots v. Harper & Row Publishers, Inc., supra, 50 F.R.D.

at 40. Compare Manual for Complex Litigation, Part II,

Appendix 2.20 (amended 1975). In addition, if a defendant

contends that a portion of any transcript has no bearing

on any issue in the private antitrust action, that conten-

Al7

tion may be presented to the District Court in a motion

to withhold that portion from disclosure.

Two recent cases in other circuits dealing with the pri-

vate antitrust plaintiff’s right to grand jury transcripts

deserve mention. The Second Circuit, in Baker v. United

States Steel Corp., supra, 492 F.2d at 1076 n.2, 1079 (ma-

jority), 1080-1081 (Lumbard, J., dissenting), has said that

grand jury secrecy should not be breached for general

discovery purposes. Yet the court recognized that dis-

closure is appropriate

**to enable counsel to perform the vital function of

cross-examining a witness who is obligated for other

reasons to testify publicly with respect to the same

matters which were the subject of his grand jury

testimony”’

492 F.2d at 1079, citing, among other authorities, State

of Illinois v. Harper & Row Publishers, Inc., supra, 50

F.R.D. at 37. Our decision is consistent with the limita-

tion and the quoted language.

The other case, State of Texas v. United States Steel

Corp., supra, No. 76-2781, Slip Op. at 1333, was decided

after oral argument of the case before us. There the Fifth

Circuit denied the State of Texas, as plaintiff in a treble-

damage antitrust action, unlimited access to copies of

transcripts from a related grand jury investigation which

were in the possession of the defendants themselves.** The

court’s conclusion appears to rest on an analogy between

The Fifth Circuit attached no significance to the fact that the

materials were sought from the defendants in the civil case rather

than the prosecutor in the criminal case. Nor do we. See notes 5

and 6, supra. We note, however, that in view of the continuing

public interest in maintaining the effective functioning of future

grand juries, the Attorney General, as the officer charged with pro-

tecting that interest, will be entitled to oppose disclosure and there-

fore should receive notice of motions for disclosure in civil cases to

which the government is not a party.

s

=p

A18

the situation in which ‘‘the witness obtains his own tran-

script,’’ and, that in which the corporation receives the

transcript of its spokesman. The fear-of-retaliation rea-

son for preserving secrecy, said the court, ‘‘remains un-

affected’’ in the first situation, a point which the state

conceded; and the rule should be the same in the second.

We are not sure the reason for secrecy does remain un-

affected when the individual witness is sued or sues in a

civil case, but, assuming that it does, we question the

analogy. As we have noted, when a corporation receives

disclosure of its employee’s grand jury testimony, dis-

closure has been made to the most likely source of retalia-

tion. Surely this affects the need for secrecy and, we be-

lieve, allows what remains of that need to be satisfied by

conditions in the disclosure order. The Fifth Circuit did

recognize that the state might well have some inspection

rights but required it to ‘‘draw a finer bead,’’ so the dis-

parity in the results that would be reached by that court

and ours may not be as great as it appears at first.

We therefore reverse the order of the District Court

and remand the case for further proceedings consistent

with this opinion.” The District Court for the Southern

District of Illinois should return the transcripts to the

District Court for the Eastern District of Illinois, upon

the latter’s request, to permit compliance with the man-

date of this court.

Reversep and REMANDED.

A true Copy: Clerk of the United States Court of

Aeste: Appeals for the Seventh Circuit

15Jn view of the inconsistency between our views on the issues

on intervention and appealability and on the merits and those ex-

pressed in certain opinions of other circuits, this opinion has been

circulated among all judges of this court in regular active service.

Judge Wood disqualified himself from any consideration of this

case. No judge favored a rehearing in banc on any issue.

A19

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

April 28, 1977

Before

Hon. Pumie W. Tone, Circuit Judge

STATE OF ILLINOIS,

Petitioner-Appellant,

No. 76-1690 vs.

JOHN E. SARBAUGH, Chief, Midwest Office, Antitrust

Division of the United States Department of Justice,

Respondent-Appellee,

J. L. SIMMONS COMPANY, INC., and LEE H.

SENTMAN, JR.,

Intervenors-Appellees.

Appeal from the United States District Court

for the Eastern District of Illinois,

Danville Division

No. CR-72-67-D

On April 26, 1977 this Court entered an order granting

a stay of mandate ‘‘... pending the filing of a timely ap-

plication to the Supreme Court of the United States for a

writ of certiorari.’’ Also on April 26, 1977, counsel for the

petitioner-appellant filed herein its ‘‘ MOTION IN OPPOSI-

TION TO MOTION TO STAY MANDATE.”’ On con-

sideration whereof, this Court being fully advised in the

premises,

IT IS ORDERED that this Court’s previous order of

April 26, 1977 be MODIFIED to the extent that the in-

tervenors-appellees’ motion for stay of mandate be grant-

ed only for a period of thirty days, nunc pro tune as of

April 26, 1977, pursuant to the provisions of Rule 41(b)

of the Federal Rules of Appel!«:- Procedure.

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alien teers Berea

o

Bl

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ILLINOIS

State Or Iuuvols,

Petitioner,

v8.

Joun E. Sarsavueu, Chief, Midwest Office, Antitrust

Division of the United States Department of Justice,

Respondent.

In Re Grand Jury Proceedings

(CR-72-67-D)

MEMORANDUM OPINION

Petitioner, the State Or I.urnois, is pursuing a civil

treble damage antitrust action on the heels of a Justice

Department criminal investigation of the highway con-

struction industry in Illinois. In that context, for use in

the civil litigation, petitioner seeks the production of ma-

terials currently in the possession of the Antitrust Divi-

sion, including grand jury transcripts of the investigation,

documents, copies of subpoenas and the names of witnesses

who appeared before the grand jury. This case speaks to

the propriety of an incursion into the traditionally secret

realm of grand jury proceedings. The issue of pretrial

access to such materials is one of first impression for this

Court.

On December 19, 1972, a federal grand jury empaneled

in this District returned a one count indictment naming

as defendants nine companies and four individuals. The

indictment charged the defendants with certain violations

of the Sherman Act, 15 U.S.C. § 1, in connection with the

nati

i eee

B2

construction of Interstate 74 in Illinois. The defendants,

it seems, had collusively allocated certain projects let by

the State of Illinois among, themselves in such a manner

as to render the bidding noncompetitive.

All of the criminal defendants named in the indictment

entered pleas of nolo contendere and fines were imposed.

United States v. Champaign Asphalt Co., et al., CR 72-67-D

(E.D. Ill.). The grand jury was discharged and all crim-

inal proceedings arising therefrom have been completed.

On November 7, 1973, however, the State of Illinois had

filed its treble damage suit in the Southern District of

Illinois. There is the expected similarity between parties

defendant; although the civil suit names five companies

not indicted in this District. State of Illinois v. Champaign

Asphalt Co., et al., S-CIV-73-216 (S.D. Ill.). To facilitate

discovery and presumably for later use in the trial, the

State presented a petition for production of the grand

jury materials before Judge Harlington Wood of the

Southern District, where the civil suit is pending. Judge

Wood denied the State’s request on the ground that it

should have been brought in this District, as the materials

sought were in connection with a grand jury impaneled

here.

The matter is now before this Court. The petitions are

general in form, seeking production for inspection and

copying of items identified exclusively by their member- -

ship in the following descriptive categories: (1) All docu-

menis produced pursuant to grand jury subpoenas; (2) All

documents voluntarily submitted to the Antitrust Divi-

sion; (3) Grand jury subpoenas issued; (4) The names of

all witnesses who appeared before the grand jury, and;

(5) Grand jury transcripts which were released and made

available to various persons, viz: defendants in the civil

B3

or criminal action, witnesses before the grand jury, or any

third person not an attorney for the U.S. Department of

Justice. By its terms the petitions limit the demand to

materials relevant to the criminal action in United States

v. Champaign Asphalt Co., et al., supra.

Based upon representations by the Antitrust Division,

what we are talking about here is approximately thirty-

eight thousand pages of documents received from twenty-

two owners, either voluntarily or pursuant to grand jury

subpoenas. In addition, seventeen subpoenas duces tecum

and forty-nine ad testificandum subpoenas were issued

during the grand jury investigation. The extent of the

volumes of transcripts has not been brought to the atten-

tion of the Court.

The Court has not assumed the burdensome task of re-

viewing the documents or the transcripts in camera. It

is not the task of this Court to determine the relevancy

of the material or to evaluate its potential usefulness in

discovery or trial. In considering the necessity of an in

camera review, the Supreme Court held in Dennis v. United

States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966) :

‘*... Trial judges ought not to be burdened with the

task or the responsibility of examining sometimes

voluminous grand jury testimony... . Nor is it realistic

to assume that the trial court’s judgment as to the

utility of material for impeachment or other legitimate

purposes, however conscientiously made, would ex-

haust the possibilities. In our adversary system, it is

enough for judges to judge’’ (at 874, 5).

Justice Fortas, speaking for the Court, reasoned that a

trial judge’s function in this regard is limited to deciding

whether a case has been made for production, and to

supervise the process.

a. |

B4

An opportunity was provided for all corporate and in-

dividual defendants, in the instant case, to file responses

and memoranda. One individual and two corporate de-

fendants have come forth asserting grand jury secrecy

as a bar to disclosure to one extent or another. The Gov-

ernment has filed a response interposing no substantial

objection.

Any disclosure of ‘‘matters occurring before the grand

jury’’ must conform to the general authorization con-

tained in Rule 6(e) of the Federal Rules of Criminal Pro-

cedure. The Rule, while by its language provides for

certain limited circumstances wherein the grand jury’s

veil of secrecy may be pierced; it is, in effect, a general

deference to the discretion of the trial judge. It will be

our task to determine which of the requested materials is

sheltered by the Rule’s penumbra and then to explore

questions such as the propriety, timeliness, and manner

of disclosure in the instant case. See Pittsburgh Plate

Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct.

1237, 3 L.Ed.2d 1323 (1959). Rule 6(e) reads in part:

‘‘Disclosure of matters occurring before the grand

jury other than its deliberations and the vote of any

juror may be made to the attorneys for the govern-

ment for use in the performance of their duties.

Otherwise ... only when so directed by the court pre-

liminarily to or in connection with a judicial proceed-

ing... No obligation of secrecy may be imposed upon

any person except in accordance with this rule... .’’

(emphasis supplied)

The first sentence of Rule 6(e) refers to attorneys for the

United States Government. It must not be read as an en-

trée for ‘government attorneys’ of the State of Illinois.

B5

i

In re Holovachka, 317 F.2d 834, 836 (7th Cir. 1963), Rule

54(c) Federal Rules of Criminal Procedure.

While Rule 6(e) provides an authorization for the dis-

closure of matters occurring before the grand jury, it

must be read in light of the long line of cases in which

the Supreme Court has affirmed the ‘‘long established

policy that maintains the secrecy of the grand jury pro-

ceedings in the federal courts,’’ United States v. Procter

& Gamble Co., 356 U.S. 677, 681 (1958). See e.g. Pittsburgh

Plate Glass Co., supra, Dennis v. United States, 384 U.S.

855 (1966), Smith v. United States, 423 U.S. 1303 (1975).

Such a shroud of secrecy is essential to the functioning

of the grand jury as a discrete and independent authority.

‘*While the grand jury is, in a sense, a part of our court

system, when exercising its traditional functions, it pos-

sesses an independence which is unique. Its authority is

derived from none of the three basic divisions of our gov-

ernment, but rather directly from the people themselves.’’

In re April 1956 Term Grand Jury, 239 F.2d 263 (7th Cir.

1956) Hence the court’s discretion has its limits and

boundaries. Disclosure may be appropriate in the given

case, but it will enter only through a narrow opening cre-

ated by judicial interpretation of Rule 6(e). Simply stated,

the petitioner must establish a compelling need, shown

with particularity. It is well to note that the development

of a body of law favoring disclosures has not yet super-

seded the rule of secrecy.

The Court will discuss each of the requested materials

seriatim.

Tue Documents

In the usual course of events, where the grand jury

proceedings have terminated and the entire criminal as-

pect of the case is complete and resolved, the Antitrust

B6

Division is bound to return the documents it has obtained

to the true owners thereof. Due to the intervention of

this petition such action on the part of the Government

has been forestalled, awaiting the decision of the Court.

Although it appears that some of the documents have al-

ready been returned, but for the fact, then, that the great

bulk of the documents, belonging to the criminal defen-

dants are still in the possession of the Antitrust Division,

they would be subject to normal discovery. Petitioner al-

leges this disability in paragraph number five, Petition

for Production of Documents. Notwithstanding, petitioner

hopes to take advantage of the fact that a significant

quantity of useful material has been assembled under the

auspices of the grand jury, and is being stored in a single,

convenient location. Petitioner’s paragraph six alleges:

‘‘[a] single inspection and copying of the herein described

documents by petitioner will contribute to the efficient ad-

ministration and simplification of pre-trial discovery and

will result in substantial economy of time and money to

the Court and to the parties.’’ Petitioner also asserts that

the documents are sought for their own sake rather than

to learn what occurred before the grand jury.

There are obvious economic advantages in the whole-

sale delivery of documents assembled by a grand jury for

the civil litigant. However, one of the reasons for the

rule of grand jury secrecy is to prevent the grand jury

‘‘from being used as an instrument for explorations in

aid of civil proceedings.’’ In re April 1956 Term Grand

Jury, 239 F.2d 263, 271 (7th Cir. 1956). However persua-

sive are the arguments of economy, mere avoidance of

monetary burden will not suffice to bring the Court’s dis-

cretion into play under Rule 6(e), Federal Rules of Crimi-

nal Procedure. United States v. Procter € Gamble Co.,

356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958), Corona

B7

Construction Co. v. Ampress Brick Co., Inc., 376 F. Supp.

598 (N.D. Ill. 1974), Smith v. United States, supra.

Tt is settled law that where a document sought in dis-

covery proceedings is sought for itself, independently,

rather than because it was displayed to a grand jury,

there is no bar of secrecy. Commonwealth Edison Com-

pany v. Allis-Chalmers Manufacturing Company, 211 F.

Supp. 729 (N.D. Ill. 1962), In re Hearings Before the Com-

mittee, Etc., 19 F.R.D. 410 (N.D. Ul. 1956). Petitioner

cites United States v. Interstate Dress Carriers, Inc., 280

F.2d 52 (2d Cir. 1960), as controlling authority. Therein

the Court affirmed an order permitting inspection of docu-

ments in the custody of the Justice Department pursuant

to grand jury subpoena:

‘*... it is not the purpose of the Rule [6(e)] to fore-

close from all future revelation to proper authorities

the same information or documents which were pre-

sented to the grand jury. Thus, when testimony or

data is sought for its own sake—for its intrinsic value

in the furtherance of a lawful investigation—rather

than to learn what took place before the grand jury,

it is not a valid defense to disclosure that the same

information was revealed to a grand jury or that the

same documents had been, or were presently being,

examined by a grand jury... .”’

‘*{ Petitioners] do not seek to learn what use the

grand jury has made of appellants’ records. They

wish only to inspect and copy the records, which hap-

pen to be in the control of the grand jury, for their

own lawfully authorized investigation.’’ (at 54)

The Court’s concern in Interstate, as with all of the

cases in which the direct disclosure has been authorized,

was that the civil litigant was not to be hamstrung in the

development of its case by placing certain material out

of its reach. Association with a grand jury proceeding

B8

then, cannot work a taint on discoverable matters. In a

different situation, however, where for some reason the

documents cannot be returned to the owners and would

be therefore otherwise unavailable, it may, upon the

proper showing, be appropriate to allow a direct disclosure

of documents, where sought with specificity. Davis v. Rom-

ney, 55 F.R.D. 337 (E.D. Pa. 1972).

Here petitioners have issued a blanket request which

encompasses virtually the entire investigatory file of the

Antitrust Division, including documents collected pursu-

ant to grand jury subpoenas and documents submitted

voluntarily, some of which were and some of which were

not presented to the grand jury. This goes beyond the

mere seeking of documents for their own sake. ‘‘The idea

that information obtained from the perusal of material

in the possession of a grand jury may be used for the

purpose of a civil proceeding is in direct conflict with the

policy of secrecy of grand jury proceedings.’’ Jn re April

1956 Term Grand Jury, supra, at 271. Corona Construc-

tion Co. v. Ampress Brick Co., Inc., supra. The danger

associated with a direct, wholesale disclosure, such as peti-

tioners request, is that the nature and extent of the docu.

ments assembled, by their association with the proceed-

ings, might reveal the focus of the inquiry, the identity

of witnesses (discussed below) or other protected mat-

ters. This danger can be avoided in the instant case. The

Court feels that to release the documents to their respec-

tive owners, freeing them for normal discovery, where

possible, is the most satisfactory method of safeguarding

both the sanctity of the grand jury and insuring the or-

dered availability of discoverable matters.

Petitioner places much reliance on the recent case of

In re Cement-Concrete Block, Chicago Area, 71 GJ 8001

(N.D. Ill. 1974) (petition for production of documents and

a Sell ct

BD ities ee wae

B9

grand jury subpoenas) ; 381 F. Supp. 1108 (N.D. Ill. 1974)

(petition for production of grand jury transcripts). The

case is remarkably on all fours with the case at hand. In-

deed, lest we proceed with caution, similar petitions will

be encouraged to sprout replacing the ‘old fashioned’ fed-

eral rules of discovery with a streamlined version of exped-

ient looting of the grand jury vaults. Admittedly there

has been some relaxation of the traditional rules of secrecy;

the Concrete Block decision would allow an unprecedent-

ed use of the grand jury.

The plaintiffs in Concrete Block, the State of Illinois

among them, had earlier petitioned the Court as plaintiffs

in Corona Construction Co. v. Ampress Brick Co., 376 F.

Supp. 598 (N.D. lil. 1974). Judge Bauer there issued a

strongly worded opinion in which he held against the peti-

tioners:

‘iv is clear to this Court that the policy of ...

secrecy established by this Court should not be cir-

cumvented by means of obtaining a Court order re-

quiring the Antitrust Division to produce and dis-

close the material requested. .. .’’ (at 602).

Judge Bauer held, however, that in accord with local crim-

inal rules only the Chief Judge had the authority to dis-

close matters occurring before the grand jury; and so,

properly deferred.

In two separate opinions, one published and the other

unpublished, the Chief Judge issued sweeping orders

allowing disclosures of documents and subpoenas issued

by the grand jury; and disclosure of grand jury tran-

scripts for use in the civil litigation. As regards the

documents and subpoenas, the Court found arguments

for utility and economy to outweigh any argument for

B10

grand jury secrecy. This Court declines to follow that

path.

The respondent, Chief of the Midwest Office, Antitrust

Division, is therefore ordered to return all documents in

his possession pertaining to the grand jury investigation

in United States of America v. Champaign Asphalt Co.,

et al., supra, to counsel for the respective owners so that

they may be available for discovery by the State.

TRANSCRIPTS

Petitioner proceeds on a theory of ‘fair play’, contending

that it is repugnant to the principles of federal discovery

to allow disclosure of prior statements to one party and

deny access to the other party on the ‘‘specious grounds’’

that the ‘secrecy’ of grand jury testimony already dis-

closed would be violated. Petitioner seeks disclosure of

those grand jury transcripts which were released and made

available to various persons.

The great bulk of the disclosure which has occurred

was made pursuant to this Court’s order of January 22,

1973. The Antitrust Division disclosed to each of the

several defendants who so requested, the grand jury testi-

mony of its own present or former corporate personnel,

who were so situated at the time of the unlawful acts, or

at the time of the grand jury proceedings, that they could

legally bind such corporation with matters that were the

subject of the criminal indictment. The government rep-

resents that several disclosures were made by the United

States Attorney’s office, pursuant to the court order,

however, no records exist which accurately reflect the ex-

tent of this disclosure. For the purposes of the instant

case we will have to assume that disclosure has been made

to each eligible defendant.

Oe) Mee + eat Me Ba ee

Bll

The only other persons who had access to the transcripts

other than those mentioned and attorneys for the United

States Department of Justice (and supportive staff), were

persons shown transcripts, in whole or in part, in connec-

tion with the trial preparation of seven subsequent crim-

inal cases filed on January 17, 1974, in the Southern Dis-

trict of Illinois. (Respondent, the Antitrust Division,

alleges these latter transcripts to be immaterial to State

of Illinois v. Champaign Asphalt Co., supra., thereby out-

side the scope of petitioner’s request.)

While grand jury testimony is ordinarily confidential,

after the grand jury’s functions are ended, limited dis-

closure is wholly proper where the ends of justice re-

quire it. United States v. Sacony Vacuum Oil Co., 310

U.S. 150, 233, 60 S.Ct. 811, 849 (1940). However, the in-

dispensable 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 par-

ticularity.’’ United States v. Procter & Gamble, 356 U.S.

677, 682 (1957). The Supreme Court recognized in Procter

& Gamble that impeaching a witness, refreshing his recol-

lection and testing his credibility were all instances of

particularized need.

The policy reasons favoring grand jury secrecy, which

are universally cited with approval (see Procter & Gam-

ble at 681, n.6) were first enumerated by J udge Coleman

in United States v. Amazon Industrial Chemical Corp.,

55 F.2d 254, 261 (D. Md. 1931):

**. . . (1) To prevent the escape of those whose in-

dictment may be contemplated; (2) to insure the ut-

most freedom to the grand jury in its deliberations,

B12

and to prevent persons subject to indictment or their

friends from importuning the grand jurors; (3) to

prevent subornation of perjury or tampering with the

witnesses who may testify before the grand jury and

later appear at the trial of those indicted by it; (4) to

encourage free and untrammeled disclosures by per-

sons who have information with respect to the com-

mission of crimes; (5) to protect the innocent accused

who is exonerated from disclosure of the fact that he

has been under investigation, and from the expense of

standing trial where there was no probability of

guilt.’’

None of the reasons traditionally advanced to justify

nondisclosure are significant here, with the possible ex-

ception of number four, above. This policy consideration

survives the conclusion of grand jury proceedings in any

one investigation and goes to the protection of the func-

tioning ot the grand jury system as a whole. If witnesses

know that what they reveal today will be part of the

public record tomorrow, they may be reluctant to come

forth with the complete candor that is essential to a

thorough inquiry. They may fear intimidation and re-

prisals by those against whom their testimony is directed.

In the instant case, however, this policy consideration loses

much of its significance since the transcripts which are

sought, the testimony of corporate employees, have pre-

sumably been released to the defendant employers, who

are the likely source of any reprisals. The possibility of

retaliation from other sources can be reduced to a mini-

mum by limiting disclosure to the attorneys of record in

State of Illinois v. Champaign Asphalt Co., et al., supra,

for use in that litigation only for the purposes of impeach-

ment, refreshing the witnesses’ recollection and challeng-

ing credibility. This is the conclusion which was properly

B13

reached in the published opinion of Jn re Cement-Concrete

Block, Chicago Area, 381 F. Supp. 1108 (N.D. Ill. 1974).

None of this is to say, however, that where the reasons

for secrecy are minimal the civil litigant has a right to

the disclosure of grand jury minutes. Such a practice

would detract from the efficacy of the grand jury proceed-

ings :

‘‘Grand jurors would not act with that independence

required of an accusatory and inquisitorial body.

Moreover, not only would the participation of the

jurors be curtailed, but testimony would be parsimon-

ious if each witness knew that his testimony would

soon be in the hands of the accused. Especially is this

true in antitrust proceedings where fear of business

reprisal might haunt both the grand juror and the

witness. And this ‘go slow’ sign would continue as

realistically at the time of trial as theretofore.’’

Pittsburgh Plate Glass Co. v. United States, supra,

at 400.

The Supreme Court held in Pittsburgh Plate Glass that

the burden is always on the petitioner to show that a ‘‘par-

ticularized need’’ exists for the transcripts which out-

weighs the policy of secrecy. This same balancing test was

announced in Dennis v. United States, 384 U.S. 855, 871

(1965), and followed in Allen v. United States, 390 F.2d

476 (D.C. Cir. 1968), and U. S. Industries Inc. v. United

States District Court, 345 F.2d 18, 21 (9th Cir. 1965),

inter alia:

sé

.

. a violation of grand jury secrecy should only

be permitted upon a showing of ‘particularized and

compelling need’. But we cannot treat this test in

vacuo. We must take recognition first of the fact that

Bl4

whether such a ‘need’ exists is a matter designedly

left initially to the discretion of the trial judge. .. .

Secondly, it must be kept in mind that, in making a

determination of when to permit a disclosure . . . we

are to examine not only the need of the party seeking

disclosure, but also the policy considerations for .. .

secrecy as they apply to the request. . . . In other

words, if the reasons for maintaining secrecy do not

apply at all in a given situation, or apply to only an

insignificant degree, the party seeking disclosure

should not be required to demonstrate a large com-

pelling need.’’

In cases involving the access of a criminal defendant to

critical information possessed by the government, the

‘‘need’’ of the petitioner becomes more relevant. ‘‘These

developments are entire consonant with the growing

realization that disclosure, rather than suppression, of

relevant materials ordinarily promotes the proper admin-

istration of criminal justice.’’ Dennis v. United States,

supra at 870. The D. C. Cireuit in Allen v. United States,

supra, has interpreted the Dennis decision, in the criminal

context, as actually reversing the burden of establishing

compelling need to the respondent:

‘‘The narrower question in Dennis and in the case

at bar, however, is whether the ‘clearest and most

compelling considerations’ dictate that the grand jury

testimony of a trial witness, . . . be kept from the de-

fendant.’’ (at 480).

The fact that disclosure of grand jury testimony is

sought in a private civil action rather than in a criminal

proceeding is no bar to the power of the Court to grant

an application for disclosure; but it does mean that the

petitioner will have to independently establish a ‘‘com-

oh ae ere ee. hail

B15

pelling necessity’? shown with ‘‘particularity.’’ It would

be erroneous to rely here on the liberal language of cases

which have dealt with the problem in a criminal context.

The petition, in the case at bar, by its terms, would

fall far short of establishing both particularity and the

lighter standard of compelling need required in a civil

action where the reasons for secrecy are de minimis. Para-

graph seven of the petition states:

‘*(7). A single inspection and copying of these tran-

scripts by Petitioner will contribute to an even-

handed and efficient administration of pretrial dis-

covery, and will result in substantial economy of time

and money to the Court and to the parties.’’

Again, arguments for economy are not dispositive in these

cases; but petitioner included in its brief ‘‘a more impor-

tant reason’’—‘‘prior statements of witnesses under oath

which may be used for the purposes of impeachment, re-

freshing recollection and testing credibility.’’ (p. 7). A

manifestly proper use of the transcripts; but the petitioner

has failed to establish compelling necessity shown with

particularity. In order to accomplish this, the proper use

must be placed into the proper contezt.

Petitioner seeks access to grand jury transcripts during

the discovery stages of the litigation. The Court recognizes

that while this practice is not without precedent, In re

Sellers, 32 F.R.D. 473 (N.D. Ill. 1962), Consolidated Edi-

son Co. of N.Y. v, Allis-Chalmers Mfg. Co., 217 F. Supp. 36

(S.D.N.Y. 1963), Atlantic City Electric Company v. A.B.

Chance Company, 313 F.2d 431 (2d Cir. 1963), State of

Illinois v. Harper & Row Publishers, Inc., 50 F.R.D. 37

(N.D. Ill. 1969), In the Matter of Grand Jury Investiga-

tions 69 GJ 2969 and 71 GJ 983, 378 F. Supp. 139 (N.D.

- — ao

B16

Il. 1974), Im re Cement-Concrete Block, Chicago Area,

supra, it is not appropriate for application to the case at

bar. Although the Supreme Court has not specifically

passed upon the release of grand jury testimony in connec-

tion with pre-trial discovery, this is not to say that the

exceptional case does not ex'st whereby such a discolsure

would be appropriate. Effec ive Court supervision would

be so difficult, in such a case, however, that the need of the

petitioner must be all the more compelling.

Regardless of whether the petitioner seeks access to the

the transcripts before or at the time of trial, the Procter

é Gamble showing of compelling necessity shown with

particularity cannot be avoided. Neither can it be as-

sumed. The first three cases cited above arose in the con-

text of a massive National Deposition Program connected

with a string of antitrust actions aimed at the electrical

industry. Honorable George H. Boldt, sitting by designa-

tion as Special Master of the program, heard two of the

cases at the trial level. In Sellers, Judge Boldt examined

the grand jury testimony of one Brenan R. Sellers, in

camera, and found it to contain ‘‘many facts of vital im-

portance to essential issues . . . which were not recalled or

were denied by deponent in his deposition testimony.’’

Finding that in the nature of the case the depositions would

almost certainly be evidentiary, Judge Boldt reasoned

that the need for the transcript for the purposes of re-

freshing the witness’s recollection or exposing inaccura-

cies in his deposition testimony ‘‘is as great now as it

might be at trial’’ (at 477). A protective order was issued

to prevent the use of the transcript for any other purpose.

It’s important to note in Sellers that Judge Boldt, therein,

released one transcript only upon a particularized showing

of need.

B17

In Atlantic City Electric, Judge Boldt made similar

findings on the basis of an im camera analysis of the

single transcript of one John T. Peters. The Second Cir-

cuit affirmed, finding no manifest abuse of discretion.

Based upon what it saw as authorization in Atlantic

City Electric, the District Court in Consolidated Edison

Company performed an im camera analysis of three tran-

scripts, found in the case of each witness either material

discrepancies on important factual issues between the

grand jury testimony and the deposition testimony or sig-

nificant facts that the witness failed to recall at the deposi-

tion. Accordingly, the judge released only the significant

portions of the transcripts.

In Harper & Row, the District Court for the Northern

District of Illinois, upon petition, performed an initial in

camera inspection of nine requested transcripts and found

material discrepancies on important factual issues or sig-

nificant facts that the witness failed to recollect. Judge

Decker held that any further transcripts would be re-

leased upon a mere showing of ‘‘similar recalcitrance and

unexplained failures to remember’’ (at 42), without the

necessity of an im camera analysis since the reasons for

secrecy were virtually non-existent. Judge Decker indi-

cated that he was willing to go even further in providing

transcripts of witnesses expected to be deposed, prior to

their being deposed, but that such a decision would be ap-

propriate for certification under 28 U.S.C. § 1292(b), and

would result in substantial delay. Chief Judge Robson

of the Northern District of Illinois, however, has gone

the ‘‘extra mile’’ in Concrete Block and In re Grand Jury

Investigations, etc.; but we are, to date, without the clear

authorization of the Seventh Circuit. This Court will

therefore decline to exercise its discretion in favor of re-

B18

leasing grand jury transcripts on the basis of an antici-

pated need for use in the discovery stage of ‘he proceed-

ings. Whether, upon the taking of depositions of persons

who previously testified before the grand jury, the peti-

tioner can make the appropriate showing of compelling

need for a limited pre-trial dsclosure of certain transcripts

to aid in the preparation of evidentiary depositions, the

Court expresses no opinion. That case is not now before

us. It should be repeated that if such a showing could be

made, it would be in the context of an exceptional set of

circumstances. The petition for production of grand jury

transcripts must, in accordance with the reasoning ex-

pressed above, be denied, with leave to file at a later date.

The Court believes that it would be entirely proper for

petitioner to move for production of the requested tran-

scripts at the time of the trial of the civil suit to use

for purposes of impeachment, refreshing recollection and

challenging credibility of those witnesses who had pre-

viously testified before the grand jury. At that time peti-

tioner would be in a position to establish compelling need,

for example, by pointing to a failure of memory on the

part of a witness, a showing of contradiction between the

testimony and reliable documentary evidence or perhaps

by prevailing upon the trial court for an im camera exami-

nation of the transcripts to uncover any inconsistencies.

This is entirely consistent with the Supreme Court’s posi-

tion in Dennis v. United States, supra and United States

v. Procter & Gamble, supra. See also, generally: In re

April 1956 Term Grand Jury, 239 F.2d 263 (7th Cir. 1956) ;

Baker v. United States Steel Corp., 492 F.2d 1074 (2d Cir.

1974); United States v. Parker, 469 F.2d 884 (10th Cir.

1972); Allen v. United States, 390 F.2d 476 (D.C. Cir.

1968).

B19

The Court is not unmindful of the fact that the trial of

the civil suit is being conducted in the Southern District

of Illinois and that it would be an impossible burden to

have the plaintiff therein direct its motions for production

to this Court. Considering that, and the fact that the

trial judge in the Southern District would be in a much

better position to evaluate the propriety of any future

motions, it is the judgment of this Court that all tran-

scripts of the testimony of witnesses before the grand

jury in United States v. Champaign Asphalt, et al., 72-

CR-67-D (E.D. Ill.), be transferred to that Court so that

they may be available for the use of counsel in State of

Illinois v. Champaign Asphalt, et al., supra, at the discre-

tion of the trial judge. It is hoped that such discretion

will be exercised in accordance with the views expressed

herein. The Chief, Midwest Office, Antitrust Division of the

Justice Department, is directed to comply. The petition-

er’s motion is hereby denied with respect to grand jury

transcripts, without prejudice to renewal thereof during

the course of trial.

SUBPOENAS AND NaMEs oF WITNESSES

The .petitioner requests the production for inspection

and copying of grand jury subpoenas issued and the names

of witnesses who appeared in the course of the investiga-

tion. It is clear that these constitute ‘‘matters occurring

before the grand jury’’ under Rule 6(e), Federal Rules

of Criminal Procedure, and the same views expressed

above, with reference to the transcripts and documents

would apply with equal force here. In fact, it might be

argued that the subpoenas and the identity of witnesses

go even closer to the heart of the grand jury proceedings

and should thereby be afforded a greater degree of pro-

tection. Nevertheless, the petitioner has failed at this

point in time to make any showing whatever, of compelling

need for such material.

In an effort to be consistent with the ruling on the tran-

scripts above, the names of grand jury witnesses would

have to be available to the civil liligant at some point early

in the trial to appraise the party of the identity of the

available transcripts. Upon a showing of compelling nec-

essity, as outlined above, the trial judge in the Southern

District, upon receipt of the transcripts, would be au-

thorized under Rule 6(e) to release the names of the

witnesses with an appropriate protective order.

It is unknown whether the petitioner will ever be able

to make the requisite showing with regard to the sub-

poenas issued; however, in an effort to centralize the su-

pervision of the litigation in Champaign Asphalt, the Jus-

tice Department is hereby ordered to transfer the subpoenas

in question to the United States District Court for the

Southern District of Illinois, so that they may be released

at the discretion of the trial judge therein, again, with

appropriate protective orders.

Ir Is Tuererore Ornverep that the State of Illinois’

Petition for Production of Grand Jury Transcripts be,

and is hereby denied, without prejudice to renewal there-

of during the course of trial.

Ir Is Furrner Orverep that the State of Illinois’ Peti-

tion for Production of Documents be, and is hereby denied,

with respect to the production of documents produced

pursuant to Grand Jury subpoenas, or voluntarily sub-

mitted.

te a an nm

B21

Ir Is Furrner Orperep that the State of Illinois’ Peti-

tion for Production of Documents be, and is hereby denied,

with respect to the production of the names of grand jury

witnesses, without prejudice to renewal thereof during

the course of trial.

Ir Is FurtHer Orperep that the State of Illinois’ Peti-

tion for Production of Documents be, and is hereby denied,

with respect to the grand jury subpoenas issued, without

prejudice to renewal thereof upon the showing of com-

pelling need.

Ir Is Furtner Onperep that the respondent, Chief of

the Midwest Office, Antitrust Division, is to return all

documents in his possession pertaining to the grand jury

investigation in United States v. Champaign Asphalt Co.,

et al., supra, to counsel for the respective owners so that

they may be available for discovery by the State.

Ir Is FurtHer Orperep that the respondent is to transfer

all copies of subpoenas issue and all transcripts of testi-

mony before the grand jury in United States v. Cham-

paign Asphalt Co., et al., supra, to the United States Dis-

trict Court for the Southern District of Illinois.

Ir Is Furtruer Orverep that all copies of transcripts

and subpoenas released pursuant to this order to the Unit-

ed States District Court for the Southern District of II-

linois be returned to respondent, the United States De-

partment of Justice, Midwest Office, Antitrust Division,

upon the termination of the proceedings in State of IIli-

nois v. Champaign Asphalt, et al., supra.

Ewnrerep this 7th day of April, 1976.

/s/ Henry S. Wise

Chief Judge