Petitioners Brief — United States v. John Doe, Inc. I

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UNITED STATES OF AMERICA, PETITIONER

Vv.

JOHN DOE, INC. I, ET AL.

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

CHARLES FRIED

Solicitor General

DOUGLAS H. GINSBURG

RICHARD K. WILLARD

Assistant Attorneys General

Lou!Is R. COHEN

Deputy Solicitor General

W. STEPHEN CANNON

Deputy Assistant Attorney General

? PAUL J. LARKIN, JR.

Assistant to the Solicitor General

ROBERT B. NICHOLSON

STEVE MAc ISAAC

DOUGLAS N. LETTER

ANNA SWERDEL

CAROLYN G. MARK

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

———————————— Os:

Pe A} A

QUESTIONS PRESENTED

1. Whether an attorney of the Antitrust Division

of the Department of Justice who has properly had

access to grand jury materials while conducting a

criminal investigation may use the same materials in

preparing for and litigating a related civil case with-

out obtaining a disclosure order pursuant to Rule

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

2. Whether the district court acted within its

discretion when it issued a Rule 6(e) order authoriz-

ing the Antitrust Division to disclose certain grand

jury materials to attorneys in the Civil Division and

the United States Attorney’s Office in order to obtain

their advice and ensure consistent federal enforce-

ment of the False Claims Act, a federal statute as to

which the Civil Division has the primary enforcement

responsibility.

(1)

PARTIES TO THE PROCEEDING

Respondents here include three corporations—John

Does, Inc. I, II, and III, respectively—that are de-

fendants in United States v. “A” Corp., Civ. No. 85-

2062 (S.D.N.Y.), filed under seal, and five individuals

—John Does I, Il, Ifl, IV, and V, respectively—who

are officers or employees of those corporations.*

* Because of the grand jury secrecy issues involved in this

case, both the district court and the court of appeals ordered

that the civil complaint filed by the government be kept under

seal. J.A. 40-42; Pet. App. 2a, 20a.

Cae

TABLE OF CONTENTS

Opinion below

Jurisdiction

Rule involved

Statement

ES ELE

B. The proceedings below

Summary of argument

Argument:

I. The continued use of grand jury materials, in

the civil phase of a dispute, by a government

attorney who participated in the grand jury

proceedings does not constitute a “disclosure” of

matters occurring before the grand jury within

the meaning of Fed. R. Crim. P. 6(e) —................

EO SE

B. The plain text of the Rule —..........................

C. The history of Rule 6{e) —...............................

D. The policies underlying Rule 6(e) —..............

EEE a ee

-2. Integrity of the grand jury .....................

II. The district court did not abuse its discretion by

authorizing the disclosure of grand jury mate-

rials for the limited purpose of ensuring con-

sistent enforcement of federal law -....................

ELE LEELA A ET ES

(m1)

Page

&®S888 5

TABLE OF AUTHORITIES

Cases: Page

Alvarez, In re, 351 F. Supp. 1089 26

American Tobacco Co. Vv. Patterson, 456 U.S. 68... 24

Associated Container Transp. (Australia), Ltd. v.

United States, 705 F.2d 53 85

Bast v. United States, 542 F.2d 893 26

Bianchi, In re, 542 F.2d 98 26

Board of Governors v. Dimension Financial Corp.,

No. 84-1274 (Jan. 22, 1986) 34

Bottari, In re, 453 F.2d 370 26

Burlington Industries v. Exxon Corp., 65 F.R.D.

26 33

Consumer Product Safety Commission v. GTE Syl-

vania, 447 U.S. 102 28

Dennis Vv. United States, 384 U.S. 855 81

Doe, In re, 587 F. Supp. 1038 87

Douglas Oil Co. v. Petrol Stops Northwest, 441

U.S. 211 16, 30, 38, 89, 40, 41

Executive Securities Corp. v. Doe, 702 F.2d 406,

cert. denied, 464 U.S. 818 26

Grand Jury Investigation No. 78-184 (Sells, Inc.),

In re, 642 F.2d 1184, aff’d, 463 U.S. 418 -.......... 25

Grand Jury Proceedings, In re, 73 F.R.D. 647........ 26

Grand Jury Witness Subpoenas, In re, 370 F.

Supp. 1282 26

Illinois vy. Abbott & Associates, Inc., 460 U.S. 557.. 30, 39

Millis Music, Inc. v. Synder, No. 83-1153 (Jan. 8,

1985) 24

Minkoff, In re, 349 F. Supp. 154 26

People v. Williams, 97 Ill. 2d 252, 454 N.E.2d 220.. 33

Pittsburgh Plate Glass Co. v. United States, 360

U.S. 395

Russo, In re, 58 F.R.D. 564

Schiavone v. Fortune, No. 84-1839 (June 18,

1986) ...... 22

Sedima, S.P.R.L. v. Imrex Co., No. 84-648 (July 1,

1985) 22

State v. Krich, 123 N.J.L. 519, 9 A.2d 808 ........... 83

Taylor v. Taylor, 179 Ga. 691, 177 S.E. 582 ............ 33

Cases—Continued : Page

United States v. Archer-Daniels-Midland Co., 785

F.2d 206, petition for cert. pending, No. 85-

ais TEED cncecinrnaidhancentnteteteninebaniteiibatahbtancmanmnannens ..21, 24, 27

United States v. Clavey, 565 F.2d 111, vacated, 578

F.2d 1219, cert. denied, 439 U.S. 954 ~................. 26

United States v. Fitch, 472 F.2d 548, cert. denied,

I I aici ei tte inh acitiseceneiamnies 26

United States v. James, No. 85-434 (July 2, 1986).. 28

United States v. Kovel, 296 F.2d 918 -_.................... 33

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

677 nite ....15, 28, 30

United States v. Rose, 215 F.2d 617 -_....................... 30

United States vy. Sells Engineering, Inc., 463 U.S.

SS ae Cee ote. ee ee Ree passim

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

SERA ee a ee ee $1, 39

United States v. Turkette, 452 U.S. 576 -.............. 22

Valenti v. United States Department of Justice,

SE a ee ee eb a ee 26

Zenith Radio Corp. vy. RCA, 121 F. Supp. 792........ 33

Statutes, regulations and rules:

Antitrust Civil Process Act, 15 U.S.C. 1811-1314... 4, 34,

35, 38

aetna rented 12, 36

15 U.S.C. 1812 (b) (2) ..... se 36

EE LTT AL 36

15 U.S.C. 1812 (b) (4) iteattneiee 36

a cee eeennatintinsil 36

TT ET 36

i EE RET ESTED 40

False Claims Act, 31 U.S.C. (& Supp. II) 8729-

BNE RN A PAS ho OE RS 4,9

31 U.S.C. (& Supp. 11) BP Ritthenichenitteddkpitinics 17

Foreign Assistance Act of 1961, § 640A, 22 U.S.C.

go Sitti eer a a OS ES 9

Jencks Act, 18 U.S.C. 8600 ...................................... 33

Sherman Act, 15 U.S.C. 1 et seq.........................-..0... 8

Statutes, regulations and rules—Continued : Page

15 U.S.C. 1 4,9,17

15 U.S.C. 2 17

15 U.S.C. 3 .... an 17

4g 9 MAE, mallee aaa 4

15 U.S.C. 6 aa 17

15 U.S.C. 8 nds 17

15 U.S.C. 9 ; 17

15 U.S.C. 15a ..... » 49

15 U.S.C. 1264 ‘ sl ‘ 17

15 U.S.C. 1266 ...... , ines 17

AR, OO __———————————————————— 17

15 U.S.C. 1899 (b) we 17

Re CY |)” 17

15 U.S.C. 1607 ne we 17

css irinerentnninemonennenceliih 17

15 U.S.C. 1990b. ie orsenilahicialicatin Macntetiatedl a 17

15 U.S.C. 1990c ..... 17

18 U.S.C. 287 -..... ‘as 17

18 U.S.C. 1001 et seq. EEE ee Ne Sr ae Fe 7

18 U.S.C. (Supp. I) App. at 446-448 _......................... 29

18 U.S.C. App. at 566 .................--.---------00--ceeceenesenens-e= 82

18 U.S.C. App. at 568 ..............-...-..----------0--ceeesserenene-e0- 29

18 US.C. App. at BED -..................--.-2-------------0-neeceeneeeeee 29

18 U.S.C. App. at 569-570 -.........-..------------------0eeceneeee-=+ 32

18 U.S.C. App. at 570-572 ................-..-- as 29

(5 tt ee EE 17

en . cceeenqmapbinpepeneineiapenpapepeapance 17

cece eeepesemmpaapapprergses 18

ETT reT 18

Donna creniarenncergngenesanpenpaperoannses 18

Ft hi le TT TT 17

PR a EE PE RAE dS EE 17

oan aren eeeen 18

P 8 4) ETE SHS ew ene o>ane Reaen 17

a. eteeneneanerennneniiete 18

ID erties ccccecenccesescececesenencencsenssncnsocnnsnetet 18

I ooo pe pserernccreremmerenecpecoorepacsoogaten 18

42 U.S.C. 1973j (c) .......... fae EP IIE AS A 18

a eceecneenposescemscartensterscenmmvesesesesets 18

vil

Statutes, regulations and rule—Continued: Page

42 U.S.C. 1973] (e) Pa 18

42 U.S.C. 3613 i 17

42 U.S.C. 3681 ........ L 17

28 C.F.R.:

FIA To FS 5

Section 0.45 (d) es 5

I I acc cecscntdiscchnstinesisesctncmmmamnebtnlifneat 22

Fed. R. Crim. P.:

Rule 6 . seithilalibaiiceiintianniekin 14, 27

EE Se eae a ee ee 23, 27

EE passim

ne ae 29

TTT TELA LOA REE ACTS 29

REE AS a 29

an rarncnpremmnnemsaiiintaasiitlins 29

TTT TIES TE 29

ss ccnccsnsentnnmneniniie 14, 23, 27, 40

I in sk ctsicclidunleiiibioenses 24, 26

TEESE TIE SIE EEE $1, 32

no ce anadenslieiaiabeaeiiines 38

I i ic cresniistplcieiienindiglsbgdomntnsnan 10

18 U.S.C.A. Rule 6, at 79-80 (West 1986) _.......... 29

Miscellaneous :

123 Cong. Rec. (1977):

ase ccenndaitéciansabbiininnetninensi 29

a eT 29

acter nsncmnteiilthlibetiicinteenae 29

D. Ginsburg, Antitrust Enforcement in the Second

Term (Nov. 8, 1985) (unpublished manuscript

19th New England Antitrust Conference) .......... 42

H.R. Rep. 95-195, 95th Cong. Ist Sess. (1977) ........ 29, 32

2 D. Louisell & C. Mueller, Federal Evidence

ane ee a 33

C. McCormick, Evidence (3d ed. 1984) ..................... 33

S. Rep. 95-354, 95th Cour., Ist Sess. (1977) -....... 29, 32

U.S. Dep’t of Justice, Antitrust Division Manual

I TI atiiintin “cictieeelisschCinldaansitnisente es 22

Vill

Miscellaneous—Continued : Page

Webster's New Collegiate Dictionary (1975) -.......

Webster’s Third New International Dictionary

(1976) .

2 J. Weinstein & M. Berger, Weinstein’s Evidence

(1985) . 33

8 J. Wigmore, Evidence in Trials at Common Lew

(J. McNaughton rev. ed. 1961) -..............------------- 30, 33

1 C. Wright, Federal Practice and Procedure:

Criminal (2d ed. 1982) ..........----------------------- 26, 30-31

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-1613

UNITED STATES OF AMERICA, PETITIONER

JOHN Dog, INC. I, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1la-

18a) is reported at 774 F.2d 34. The orders of the

district court (Pet. App. 21a-23a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered

on September 24, 1985. A petition for rehearing was

denied on December 2, 1985 (Pet. App. 24a). On

February 25, 1986, Justice Marshall extended the

time within which to file a petition for a writ of cer-

tiorari to and including April 1, 1986. The petition

was filed on March 31, 1986, and was granted on

(1)

May 27, 1986. The jurisdiction of this Court rests

on 28 T1.S.C. 1254(1).

RULE INVOLVED

Rule 6(e) of the Federal Rules of Criminal Proce-

dure provides, in pertinent part, as follows:

Recording and Disclosure of Proceedings.

* * * * *

(2) General Rule of Secrecy. A grand juror,

an interpreter, a stenographer, an operator of a

recording device, a typist who transcribes re-

corded testimony, an attorney for the govern-

ment, or any person to whom disclosure is made

under paragraph (3) (A) (ii) of this subdivision

shall not disclose matters occurring before the

grand jury, except as otherwise provided for in

these rules. No obligation of secrecy may be im-

posed on any person except in ae~-rdance with

this rule. * * *

(3) Exceptions.

(A) Disclosure otherwise prohibited by

this rule of matters occurring before the

grand jury, other than its deliberations and

the vote of any grand juror, may be made

to—

(i) an attorney for the government

for use in the performance of such at-

torney’s duty; and

(ii) such government personnel * * *

as are deemed necessary * * * to assist

an attorney for the government in the

performance of such attorney’s duty to

enforce federal criminal law.

(B) Any person to whom matters are dis-

closed under subparagraph (A) (ii) of this

paragraph shall not utilize that grand jury

material for any purpose other than assist-

ing the attorney for the government in the

performance of such attorney’s duty to en-

force federal criminal law. An attorney for

the government shall promptly provide the

district court, before which was impaneled

the grand jury * * * with the names of the

persons to whom such disclosure has been

made * * *,

this rule of matters occurring before the

grand jury may also be made—

(i) when so directed by a court pre-

liminarily to or in connection with a ju-

dicial proceeding;

(ii) when permitted by a court at

the request 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.

STATEMENT

A. Background

1. In November 1981, the Agency for Interna-

tional Development (AID) of the Department of

State notified the Antitrust Division of the Depart-

ment of Justice that the conduct of certain American

companies involved in AID-financed sales of tallow '

to a foreign government might warrant investigation

for possible violations of the Sherman Act, 15 U.S.C.

1 et seg. Attorneys from the Antitrust Division con-

1 Tallow is used in the manufacture of soap, animal feed,

and lubricants.

ducted an investigation from March 1982 through

June 1984. In the course of that investigation, a

grand jury in the Southern District of New York

heard testimony from several dozen witnesses and re-

viewed approximately 250,000 pages of subpoenaed

documents (Pet. App. 2a; J.A. 17-18).

Early in June 1984, the Antitrust Division tenta-

tively concluded that the respondents and at least one

other company had violated Section 1 of the Sherman

Act, 15 U.S.C. 1, but also decided that a criminal

prosecution was inappropriate. The grand jury in-

vestigation was therefore promptly terminated wiih-

out an indictment being sought (J.A. 10, 18). At the

same time, however, the Antitrust Division concluded

that a civil action against the corporate respondents

might be appropriate. Accordingly, the Assistant At-

torney General in charge of the Antitrust Division

instructed the attorneys who had conducted the grand

jury investigation to consider a possible suit for in-

junctive relief under the Sherman Act’ and damages

under the False Claims Act, 31 U.S.C. (& Supp. IT)

3729-3731 (Pet. App. 2a; J.A. 10, 16, 18).

Late in June 1984, pursuant to the Antitrust Civil

Process Act (ACPA), 15 U.S.C. 1311-1314, the gov-

ernment issued civil investigative demands (CIDs)

for documents to nearly two dozen persons who had

received grand jury subpoenas, including the corpo-

rate respondents here and approximately twenty other

persons. The scope of the CIDs overlapped that of

the earlier grand jury subpoenas, and the Antitrust

Division notified the CID recipients that they could

comply with the CIDs by certifying that they had

2The government may enforce the Sherman Act through

both criminal prosecutions and civil suits. See 15 U.S.C. 1,

4, 15a.

produced all requested documents pursuant to the

grand jury subpoenas. Nearly all of the CID recipi-

ents elected to comply in this manner. Two of the

corporate respondents here, however, declined to cer-

tify that they had previously produced the sought-

after documents, although they informally advised the

Division that they had in fact done so. In the course

of the civil investigation, the Antitrust Division at-

torneys also interviewed prospective witnesses and ob-

tained documents from persons on a voluntary basis.

Pet. App. 2a-3a; J.A. 16, 44.

2. The Antitrust Division ultimately concluded

that the conduct at issue violated the Sherman Act

and possibly the False Claims Act, and the Division

considered bringing suit under both statutes. Al-

though the Antitrust Division is authorized to prose-

cute False Claims Acts suits when the conduct in

question also violates the antitrust laws (28 C.F.R.

0.40(a)), the primary responsibility for the enforce-

ment of that statute rests with the Civil Division of

the Department of Justice (28 C.F.R. 0.45(d)). Ac-

cordingly, the Antitrust Division determined that in

order to ensure consistency in the government’s en-

forcement of the False Claims Act, it should seek

the advice of Civil Division attorneys as to the ap-

propriateness of a False Claims Act suit on the facts

of this case. The Antitrust Division also needed to

consult with attorneys in the United States Attor-

ney’s Office for the Southern District of New York,

where a civil suit would be filed. J.A. 11, 13, 14-15,

18.

The Antitrust and Civil Division attorneys entered

into preliminary discussions that did not involve any

disclosure of grand jury materials (Pet. App. 3a;

see J.A. 19). These discussions proved insufficient,

however, because the Civil Division attorneys were

unable fully to advise the Antitrust Division whether

a False Claims Act suit would be appropriate without

reviewing information compiled by the grand jury.

Accordingly, to take advantage of the Civil Division’s

experience, the Antitrust Division attorneys deemed

it necessary to disclose some grand jury materials to

the Civil Division attorneys.

On November 30, 1984, the Antitrust Division

sought an order, pursuant to Rule 6(e) of the Federal

Rules of Criminal Procedure, from the United States

District Court for the Southern District of New York

authorizing the disclosure of information contained

in the grand jury record to four named attorneys in

the Civil Division, two named attorneys in the United

States Attorney’s Office, and their designees. The

government informed the court that the proposed dis-

closure would “include[] a description and analysis

of the evidence * * * uncovered by the grand jury

and excerpts from documents and testimony of wit-

nesses who appeared before the grand jury” (J.A.

12). The Division assured the court that the proposed

disclosure was for consultation only and “not for pur-

poses of further inv-etigation” by the Civil Division

or the United States attorney (id. at 13). The gov-

ernment urged that the need for this limited disclo-

sure to ensure consistent enforcement of federal civil

law outweighed the need for continued secrecy (id.

at 14-15).°

3 As the government explained (J.A. 14-15):

The disclosure of information is necessary to ensure the

proper functioning of the decision-making process of the

U.S. Department of Justice. In order properly to exer-

cise its prosecutorial discretion, review of the memoranda

by the Civil Division is necessary to ensure that the De-

3. Following an ex parte hearing, the district court

granted the motion. The court entered a Rule 6(e)

order permitting the Antitrust Division to disclose

matters occurring before the grand jury to the six

specified attorneys (and their designees) in the Civil

Division and the United States Attorney’s Office in

order “to assist in the review of this matter provided

that this information will be treated as confidential

and its use will be limited solely to the purposes of

this order” (Pet. App. 23a).

In the following weeks, the Antitrust Division pro-

vided the specified attorneys with four memoranda

that analyzed and quoted from documents and testi-

mony presented to the grand jury. Some subpoenaed

documents were attached to these memoranda. After

analyzing this information and discussing it with at-

torneys from the Antitrust Division, the Civil Divi-

sion attorneys advised the Antitrust Division that a

partment acts consistently in its enforcement efforts.

The review is also important to ensure that prosecution of

this matter would carry out Department policy regarding

the False Claims Act. Moreover, without disclosure of

this information, the Antitrust Division would not be

able to take full advantage of the Civil Division[’]s ex-

pertise in enforcing cases under he False Claims Act.

Coordination between the Civil Division[] and the

Antitrust Division is necessary to ensure the fair and

even-handed administration of justice. It would be more

difficult for the Department to achieve consistency and

uniformity in its enforcement efforts i[f] its officials

were unable to learn the facts of relevant matters being

investigated by staff attorneys in other divisions. This

uniformity of enforcement is necessary not only to the

Department but to the public as well. Without uniform

enforcement, the public would have difficulty rationally

choosing courses of action which might be affected by the

antitrust and the civil fraud laws.

False Claims Act suit would be appropriate. Pet.

App. 4a.

B. The Proceedings Below

1. The Antitrust Division ultimately decided to file

a civil complaint. In March 1985, as a matter of

courtesy, the Division notified the proposed defend-

ants of the upcoming suit (J.A. 44-45). Respondents

immediately moved in the district court to vacate the

Rule 6(e) order. They also sought to prohibit the

government from using any grand jury material in

preparing, filing, or litigating the civil suit (Pet.

App. 4a; J.A. 27-28). After a hearing,* the district

court on March 12, 1985, denied the requested relief

(Pet. App. 21a). The court stated that “[t]he entire

impact of the papers [the government] submitted [at

the hearing on the Rule 6(e) order was] to show

there was a particularized need” and that govern-

ment counsel “went through a great deal of trouble

to indicate why they were necessary” (J.A. 34). The

court also refused to enjoin the government from fil-

ing the complaint, or to disqualify the Antitrust Divi-

sion attorneys who had participated in the grand jury

investigation from participating in the civil suit (Pet.

App. 21a). Shortly thereafter, the United States

filed a civil complaint under seal charging the cor-

¢ Respondents’ motion was originally assigned to Judge

Brieant. He denied the motion without prejudice on the

ground that it snould be presented to Judge Palmieri, who had

issued the Rule 6(e) order (J.A. 29). After a hearing (J.A.

80-42), Judge Palmieri also denied respondent’s motion (Pet.

App. 21a), and it was his ruling that was later set aside by

the court of appeals.

‘The district court’s denial of respondents’ motion was

“without prejudice to [its] renewal before the trial judge

* * * assigned when [the] case is filed” (Pet. App. 21a).

porate respondents and another company with (1)

bid rigging and price fixing, in violation of Section 1

of the Sherman Act, 15 U.S.C. 1; (2) conspiring to

defraud the United States in violation of the False

Claims Act, 31 U.S.C. (& Supp. II) 3729-3731; (3)

making false claims against the United States, in vio-

lation of Section 640A of the Foreign Assistance Act

of 1961, 22 U.S.C. 2399b; and (4) unjust enrichment

at common law.*

2. The court of appeals reversed (Pet. App. 1a-

18a). The court ruled that the district court had

abused its discretion in granting a Rule 6(e) order

because the Antitrust Division had not demonstrated

a particularized need for the disclosure of grand jury

materials to the Civil Division. The court also held

that the Antitrust Division attorneys who had access

to grand jury materials during the criminal investi-

gation must obtain a Rule 6(e) order before they

* The complaint was filed under seal. After filing a notice

of appeal, respondents moved in the court of appeals for a

protective order prohibiting the government from using grand

jury materials pending appeal in preparing for, filing, or liti-

gating the proposed civil action and prohibiting the Antitrust

Division from making any further cisclosures to the Civil

Division. The court of appeals refused to prohibit the United

States from filing its complaint but directed that the complaint

be filed under seal pending the resolution of respondents’

appeal. Pet. App. 19a. As the court of appeals found, “the

complaint filed by the government does not quote from or

refer to any grand jury material” (id. at 17a). The court

also prohibited the disclosure of grand jury material to any-

one who was not already privy to the information (id. at 20a).

See also page II note *, supra. A copy of the complaint,

as reprinted in the supplemental appendix filed in the court

of appeals, has been lodged under seal with the Clerk’s Office.

themselves could use the same material in this civil

suit.’

a. The court of appeals recognized that under

United States v. Sells Engineering, Inc., 463 U.S. 418

(1983), the district court was “ ‘infused with sub-

stantial discretion’ ” im deciding whether to authorize

disclosure (Pet. App. 6a (citation omitted)). It also

acknowledged that the particularized need standard

“ig a highly flexible one” that accommodates consid-

erations peculiar to the government “ ‘that weigh for

or against disclosure in a given case’” (id. at Ta

(citation omitted) ). Nonetheless, the court of appeals

concluded that the district court’s order was improper

because the Antitrust Division could eventually have

provided the Civil Division with “substantially the

same information” by exercising its discovery powers

under the ACPA (id. at 9a). The Court recognized

that this would require the investment of “a sub-

stantial amount of additional government time and

effort,” but it concluded that, under Sells, “such a

factor can play no part in our analysis” (id. at 10a).

Finally, despite the very narrow purpose for which

disclosure was sought and permitted, the court of ap-

peals stated that it was “influenced” in its assess-

ment of the government’s showing of particularized

need (ibid.) by the fact that neither the government’s

request for disclosure nor the district court’s Rule

6(e) order specified precisely what grand jury ma-

terials were to be disclosed (Pet. App. lla). Accord-

ingly, the court of appeals vacated the Rule 6(e)

order.

™ The court of appeals rejected respondents’ argument that

the district court had erred by granting the order on the

basis of an ex parte hearing pursuant to Fed. R. Crim. P.

6(e) (3) (D) (Pet. App. 5a-6a).

b. The court then turned to the question whether

the Antitrust Division attorneys who had assisted the

grand jury during its investigation could, in prepar-

ing for and litigating the contemplated civil suit, use

grand jury materials to which they had previously

had access without first obtaining a Rule 6(e) order

(Pet. App. 1la-17a). The court recognized that the

“issue presented here is more subtle” than the one

decided in Sells, in which this Court “expressly left

this question unresolved” (Pet. App. lla-12a). The

court of appeals stated that “[t]he threshold question

is whether the continued access to grand jury mate-

rials by the attorneys who conducted the grand jury

investigation—and worked with the materials during

that time—even constitutes ‘disclosure’ ” for purposes

of Rule 6(e) (Pet. App. 12a). The court acknowl-

edged that it “seems fictional at first glance” to char-

acterize as a “disclosure” an attorney’s continued ac-

cess during a civil suit to grand jury materials that

he had reviewed during the grand jury’s investigation

(ibid.). But it concluded that this characterization

was justified in this case because the sizeable volume

of grand jury materials would invite the government

attorneys to refresh their recollection by referring

“repeatedly to the documents and transcripts of which

they have prior knowledge and with which they may

be partially familiar” (ibid.).

The court of appeals then discussed the reasons

given in Sells for limiting access to grand jury ma-

terials. Pet. App. 13a-17a. The court recognized that

one of these concerns—the threat to the integrity of

the grand jury from its potential manipulation as a

civil investigative device (see Sells, 463 U.S. 432-

433)—was “largely absent” given the Antitrust Divi-

sion’s extensive discovery powers under the ACPA

(Pet. App. 13a-14a).*° For the same reason, the court

held that a second concern identified in Sells—that

permitting use of grand jury materials in preparing

civil litigation would subvert limitations on discovery

power outside the grand jury setting (see 463 U.S.

at 433)—had little force here (Pet. App. 14a-15a).

Nonetheless, the court of appeals concluded that

the general secrecy concerns discussed in Sells—the

risk of an illegal or inadvertent disclosure, and the

risk that disclosure would inhibit the candor of grand

jury witnesses (see 463 U.S. at 482)—did apply here

(Pet. App. 15a-17a). The court said it was not seri-

ously concerned about the “limited disclosure” result-

ing from the attorneys’ continuing access to the grand

jury materials (id. at 15a). But it noted that “sup-

port employees”—i.e., paralegals and secretaries—

would also presumably have access to grand jury ma-

terials, and that “any such disclosure, even if not in

itself in violation of the statute, would increase the

risk of inadvertent disclosure” (id. at 16a). The

court also believed that allowing continued access un-

der the circumstances of this case would cause grand

jury witnesses to “be less willing to speak candidly

before the grand jury” (ibid.). The court recognized

that “[o]n balance * * * the threat of affirmative

mischief * * * is somewhat less than * * * in Sells,”

and confessed that it was “tempted to conclude that

the [government] need not seek a rule 6(e) order”

® Section 1812(a) (15 U.S.C.) provides that the Attorney

General or Assistant Attorney General for the Antitrust Divi-

sion may, before a civil complaint is filed, require any person

to produce documentary materials, give written answers to

interrogatories, provide oral testimony, or furnish any combi-

nation of the above, whenever he has reason to believe this

information is relevant to a civil antitrust investigation.

in this case (Pet. App. 16a). Nevertheless, the court

of appeals felt compelled to rule in respondents’ favor

because of “the reluctance imposed on us from above”

(id. at 16a-17a), despite the “minimal * * * threat

here” to grand jury secrecy (id. at 17a). The court

therefore “prohibit[ed] any further access to or use

of grand jury materials * * * unless and until” the

government obtained a Rule 6(e) order (Pet. App.

17a).°

: SUMMARY OF ARGUMENT

I. The first question in this case was expressly

reserved in United States v. Sells Engineering, Inc.,

463 U.S. 418, 431 n.15 (1983): whether a Depart-

ment of Justice attorney who participated in grand

jury proceedings may make continued use of the

grand jury materials in preparing and litigating an

ensuing civil case without obtaining a Rule 6(e)

order, so long as he does not disclose the materials

to any other person.

The government and the public have a strong in-

terest in an affirmative answer to this question. There

are many cases in which, after a criminal investiga-

tion is completed, it is appropriate for the Depart-

ment to consider civil proceedings in addition to or

instead of criminal prosecution. Requiring the De-

partment to duplicate the grand jury materials

through civil discovery would impose a substantial

additional burden on both the povernment and the

interested private persons. Even more important,

the resulting delay would force many civil cases in

® The court of appeals rejected respondents’ claim that the

mere filing of the government’s civil complaint, which “does

not quote from or refer to any grand jury materials,” was

itself an unauthorized “disclosure of grand jury material”

(Pet. App. 17a).

the public interest to be dropped because of staleness

or statutes of limitations.

By its plain terms, Rule 6(e) permits continued

use of grand jury materials, in the civil phase of a

dispute, by the attorneys who participated in the

grand jury proceedings. Rule 6 expressly contem-

plates that certain categories of persons, including

the participating government attorneys, will be privy

to the grand jury proceedings and have access to the

grand jury materials. Rule 6(e)(2) provides that

such attorneys, and certain other persons, “shall not

disclose matters occurring before the grand jury, ex-

cept as otherwise provided for in these rules. No

obligation of secrecy may be imposed on any person

except in accordance with this rule.” Since an attor-

ney’s continued private use of materiais te which he

had prior lawful access is not a “disclosure,” it is

permitted by the plain meaning of the Rule.

The court of appeals, admitting that it “seems fic-

tional” to do so (Pet. App. 12a), ruled that govern-

ment attorneys’ resort to grand jury materials “to

refresh their recollection * * * is tantamount to a

further disclosure” (ibid.). That ruling is contrary

to the plain meaning of the word “disclose,” which

means “expose to view,” not “reexamine.” It is also,

we respectfully submit, contrary to common sense:

an attorney obviously may make “continued use” (for

planning purposes and without further disclosure) of

matters occurring before the grand jury that he is

able to recall from memory; his equally private act

of reviewing the same information in written form

is no more a “disclosure” than his reliance on his

memory.

The history of Rule 6(e) confirms its plain mean-

ing. It has been the Department’s longstanding prac-

tice, noted by this Court without criticism in United

States v. Procter & Gamble Co., 356 U.S. 677, 678

(1958), to permit the attorneys who participated in

grand jury proceedings to “us[e] the grand jury

materials to prepare the [civil] case for trial.” Al-

though Rule 6(e) has been amended several times

since 1958, there is not the slightest evidence that

Congress believes that the Department’s well known

practice violates the Rule or threatens grand jury

secrecy.

The court of appeals, after reviewing the policies

underlying Rule 6(e), said “we might be tempted to

conclude that the antitrust division need not seek a

rule 6(e) order to use grand jury material to litigate

this civil action. But, however minimal] the threat

here, the reluctance imposed on us from above [in

Sells] forces” the opposite result’ (Pet. App. 17a).

The court was correct in its view that the threat is

“minimal,” but was incorrect in its reading of Sells.

There is, as the court of appeals recognized, no

threat to secrecy from “continued access by those

antitrust division attorneys who actually carried out

the grand jury investigation here” (Pet. App. 15a).

Ard while paralegal and secretarial personnel may

handle such materials under the atiorney’s super-

vision, that is not a violation of the Rule, and the

risk of disclosure by such a person (which would be

punishable by contempt) is no greater than it would

be if there were a criminal prosecution. Finally, the

court of appeals correctly concluded that the policies,

discussed at length by the Court in Sells, of protect-

ing the integrity of the grand jury and preventing

circumvention of limitations on civil discovery, have

no bearing on this case, because of the Antitrust Divi-

sion’s extensive civil discovery powers. In view of

the absence of any incentive to abuse xf the grand

jury process where the only persons who may

see grand jury materials are those who conducted

the proceedings, and the ease with which any abuse

can be remedied in a “continued use” case, we submit

that these concerns have no bearing in other con-

tinued use cases either.

II. The second question presented in this case is

whether the court of appeals correctly decided that

the “substantial amount of additional government

time and effort” required for duplicative civil dis-

covery “can play no part in [the] analysis” of whether

the government has shown a “particularized need”

justifying a Rule 6(e) order. The effect of this rul-

ing, also purportedly based on Sells, is to prevent the

government from obtaining a Rule 6(e) order in any

ease in which grand jury materials are available

from another source, however expensive it may be

and however long it might take to obtain duplicate

materials.

The court’s holding was a misreading of Sells.

This Court there rejected the argument that “saving

time and expense” justifies dispensing entirely with

the requirement of a Rule 6(e) order before dis-

closure to additional lawyers. 463 U.S. at 431. But -

nowhere did the Court suggest that time and expense

“ean play no part” in the district court’s exercise of

its “substantial discretion” to decide whether a Rule

6(e) order is appropriate in a particular case. On

the contrary, Sells expressly endorsed the disclosure

standard previously adopted in Douglas Oil Co. v.

Petrol Stops Northwest, 441 U.S. 211 (1979), which

Sells described as “‘a highly flexible [standard], adapt-

able to different circumstances” (463 U.S. at 445).

17 ~

The court’s holding that no Rule 6(e) order may

issue for materials obtainable, with whatever delay

and expense, from other sources is also wholly illog-

ical. The ruling would flatly prohibit use of grand

jury materials on precisely those occasions when

there is no reason whatever to do so, because neither

the secrecy nor the integrity of the grand jury is at

stake. Its only effect would be to impose a substantial

additional burden on the enforcement of federal law

in civil proceedings.

ARGUMENT

I. THE CONTINUED USE OF GRAND JURY MATE-

RIALS, IN THE CIVIL PHASE OF A DISPUTE, BY

A GOVERNMENT ATTORNEY WHO PARTICI-

PATED IN THE GRAND JURY PROCEEDINGS

DOES NOT CONSTITUTE A “DISCLOSURE” OF

MATTERS OCCURRING BEFORE THE GRAND

JURY WITHIN THE MEANING OF FED. R. CRIM.

P. 6(e)

A. Introduction

Many important federal statutes, including the

Sherman Act, provide for both criminal prosecution

and civil proceedings against violators.” In addition,

Such statutes can be found in the following areas, for

example: (1) false claims: civil, 31 U.S.C. (& Supp. II)

8729; criminal, 18 U.S.C. 287, 1001 et seq.; (2) antitrust

laws: civil, 15 U.S.C. 9, 15a, 6; criminal, 15 U.S.C. 1, 2, 8, 8;

(3) odometer tampering: civil, 15 U.S.C. 1990b; criminal,

15 U.S.C. 1990c; (4) hazardous substances: civil, 15 U.S.C.

1265; criminal, 15 U.S.C. 1264; (5) consumer credit: civil,

15 U.S.C. 1607; criminal, 15 U.S.C. 1611; (6) motor vehicle

standards: civil, 15 U.S.C. 1398(a), 1415(c); criminal, 15

U.S.C. 1399(b) ; (7) adulterated foods, drugs, and cosmetics:

civil, 21 U.S.C. 332; criminal, 21 U.S.C. 333; (8) fair housing

laws: civil, 42 U.S.C. 3613; criminal, 42 U.S.C. 3631; (9)

wage and hour laws: civil, 40 U.S.C. 328; criminal, 40 U.S.C.

332; (10) quarantine rules for ships: civil, 42 U.S.C. 271 (b) ;

violations of criminal statutes often give rise to civil

claims for damages owing to the government or to

other victims. As a result, the Department of Justice

must frequently decide, after a grand jury has com-

pleted its investigation of a possible crime, whether

to bring a civil suit based on the same facts. The

first question in this case is whether, when the same

Department of Justice attorneys who participated in

the grand jury proceedings are assigned to consider

and prepare a civil case, they may continue to use

the grand jury materials (without disclosing them

to any additional persons) without a court order

under Rule 6(e) of the Federal Rules of Criminal

Procedure.

In United States v. Sells Engineering, Inc., 463

U.S. 18 (1988), the Court held that Rule 6(e) pro-

hibits the disclosure of grand jury materials to De-

partment of Justice attorneys who were not involved

in the grand jury proceedings unless the govern-

ment obtains a court order based on a showing of

particularized need. The Court expressly declined

to address “the continued use of grand jury materi-

als, in the civil phase of a dispute, by an attorney

who himself conducted the criminal prosecution.”

463 U.S. at 431 n.15.”

criminal, 42 U.S.C. 271(a); (11) voting rights: civil, 42

U.S.C. 1973j (d) and (e) ; criminal, 42 U.S.C. 1973i, 1973j (a),

(b) and (c) ; water pollution control: civil, 33 U.S.C. 1319 (b)

and (d); criminal, 33 U:S.C. 1319(c).

11 Chief Justice Burger’s dissent stated that “it is reason-

able to read today’s decision as allowing any Justice Depart-

ment attorney who has participated in the grand jury investi-

gation or prosecution—and thus a:ready has had access to

the grand jury materials—to make further use of those mate-

rials in preparing and litigating a related civil case.” 463

U.S. at 478.

steel

In the present case, the court of appeals ruled that

Antitrust Division attorneys who participated in

grand jury proceedings and had lawful access to the

grand jury materials may not review those materials

in preparing a related civil case without a Rule 6(e)

order. The court of appeals acknowledged that it

was “tempted to conclude that the antitrust division

need not seek a rule 6(e) order to use grand jury

material to litigate this civil action” (Pet. App. 16a-

17a). But the court concluded, citing Sells, that “the

reluctance imposed on us from above” (Pet. App.

17a) forced it to deny the Antitrust Division such

continued use. This ruling, we respectfully submit,

misreads both Rule 6(e) and the policy of secrecy,

articulated in Sells, that underlies the rule.”

Rule 6(e) does not, by its plain terms, prohibit

continued use of grand jury materials, in the civil

phase of a dispute, by government attorneys who have

had prior lawful access to them, so long as they make

no disclosure to other persons. Rule 6(e) expressly

contemplates that certain categories of persons, in-

cluding the government attorneys participating in

the proceedings, will be privy to the grand jury mate-

rials. Its “General Rule of Secrecy” prohibits disclo-

sure of matters occurring before the grand jury by

% The court also held, again citing Sells, that the “sub-

stantial amount of additional government time and effort”

required to duplicate grand jury materials through civil dis-

covery “can play no part” (Pet. App. 10a) in the analysis of

whether the government has made the showing of “particu-

larized need” required to obtain a Rule 6(e) order. This sec-

ond holding is discussed below at Point II. The two rulings

would together make it impossible to make any continued use

of the grand jury materials in any case where the materials

are available (with whatever delay and at whatever cost)

from any other source.

those persons to other persons. No such disclosure

occurs when an attorney for the government who

has participated in the grand jury proceedings, and

has had access to the grand jury materials, continues ‘

to use them in the investigation and litigation of a |

civil claim. Such continued use of the materials, i

without further disclosure, does not enlarge the num-

ber of people “inside the circle” or otherwise threaten

grand jury secrecy.

On the other hand, the government and the public

have a strong interest in the government’s being able

to make continued use of grand jury materials in the

civil phase of a dispute when the government can do

so without additional disclosure. The expense (not

only to the government and the taxpayers but also

to other parties and witnesses) of duplicating a

grand jury investigation through civil discovery (or

other available means) would often be enormous.”

The lapse of time, if the government were required to

duplicate a completed grand jury investigation

through civil discovery, would mean that both sides

face unnecessarily prolonged uncertainty and that

many important cases in the public interest would

not be brought at all, because of problems of staleness

and statutes of limitations. And if the attorneys

who participated in the grand jury proceedings were

not permitted to use the grand jury materials in the

civil phase of a dispute, in many cases those attor- "

48 Tn this case, for example, the grand jury heard testimony

from dozens of witnesses and obtained approximately 250,000 i

pages of documents before the decision was made not to seek

an indictment. Pet. App. 2a.

14 See Pet. App. 17a (noting that the statute of limitations

apparently barred prosecution of one of the government’s

civil claims).

ee |

neys could not, as a practical matter, participate in

the civil phase at all, because they would be vulner-

able to challenges (brought in good faith or other-

wise) alleging their improper reliance on grand jury

materials.”

** Indeed, the question of such total disqualification was

touched on below. The court of appeals said (Pet. App. 17a) :

“Since it would be almost impossible for any attorney in

such a position to compartmentalize his thoughts and liti-

gate a civil case without in some way using his recollection

of facts learned during the grand jury investigation, we

think that the real question [not presented here] is whether

the prosecutor must be disqualified from litigating the civil

case. Since appellants have expressly declined to present that

issue, we are not called upon to address it.” In United States

v. Archer-Daniels-Midland Co., 785 F.2d 206 (8th Cir. 1986),

petition for cert. pending, No. 85-1840, the court addressed

that question and held, “[w]e do not believe that an attor-

ney’s recollection of facts learned from his prior grand jury

participation can be considered disclosure” within the mean-

ing of Rule 6(e). 785 F.2d at 212.

There are, we suggest, four points: (1) Any ruling dis-

qualifying prosecutors from participating in related civil cases

would impose a severe burden on enforcement efforts, particu-

larly in Divisions and Offices of the Department that are smal!

or are organized by subject matter. (2) Reliance by an at-

torney on his recollection of matters occurring before the

grand jury simply is not “disclosure” (unless he discloses his

recollection to another person) and therefore is not prohibited

by Rule 6(e) under any plausible reading. (3) If an attorney

may rely on his recollection of matters occurring before the

grand jury, then no purpose is served by preventing him from

reviewing grand jury materials (in private and without dis-

closure to any other person), and of course such review does

not fall within the plain meaning of “disclosure.” (4) Con-

versely, if any attorney who has had access to grand jury

materials is not permitted to review them in preparing a civil

case, the government may in many cases be well advised not

to use him, lest repeated challenges to his sources of informa-

The Antitrust Division, the Civil Division, and

many United States Attorney’s offices often use the

same attorneys in successive, related criminal and

civil matters. This practice is common, for example,

in the Antitrust Division, because line attorneys are

assigned to sections that are responsible for specific

industry groups."* The Civil Division also has en-

forcement responsibilities with respect to conduct

that may be prosecuted in either a criminal or civil

action, and the same attorneys are, whenever possi-

ble, assigned to work on successive related matters.

Smaller United States Attorneys offices follow this

practice as a matter of necessity, because there are

simply not enough attorneys to permit double staffing.

The major changes in the government’s longstanding

practice that would be required under the court of

appeals’ decision are both unnecessary and unwise.

B. The Plain Text Of The Rule

The starting point in construing a federal rule of

procedure, like the starting point in construing a

statute, is the language employed by Congress. See

Schiavone v. Fortune, No. 84-1839 (June 18, 1986),

slip op. 9 (Fed. R. Civ. P. 15(c)); see also Sedima,

S.P.R.L. v. Imrex Co., No. 84-648 (July 1, 1985),

slip op. 8; United States v. Turkette, 452 U.S. 576,

580 (1981). As the Court stated in Schiavone, “[w]e

do not have before us a choice between a ‘liberal’

approach toward Rule 15(c), on the one hand, and a

tion (which may be hard to put out of court when the attorney

has been thinking, conversing, making notes, ard collecting

files about the same set of events over a long period of time)

delay and obstruct the civil proceedings.

16 U.S. Dep’t of Justice, Antitrust Division Manual 1-22-23

(rev. 1982) ; see also J.A. 17.

‘technical’ interpretation of the Rule, on the other

hand. The choice, instead, is between recognizing or

ignoring what the Rule provides in plain language.

We accept the Rule as meaning what it says.” Slip

op. 9.

Rule 6(e) plainly does not prohibit continued use

of grand jury materials, without disclosure, by gov-

ernment attorneys who participated in the grand

jury proceedings and had lawful access to those ma-

terials in that capacity. The Rule contemplates that

certain persons, including participating government

attorneys, may have access to grand jury materials.”

The “General Rule of Secrecy” in Rule 6(e)(2) then

provides that specified persons, including such attor-

neys, “shall not disclose matters occurring before the

grand jury * * *.” The following sentence states

that “[n]o obligation of secrecy may be imposed on

any person except in accordance with this rule.” By

its terms, therefore, Rule 6(e) prohibits only “dis-

closure” of matters occurring before the grand jury;

it does not forbid the continued use of grand jury

materials by government attorneys who do not dis-

close them to others.

The court of appeals, admitting that it “seems fic-

tional at first glance” (Pet. App. 12a), held that the

attorneys’ review of materials constitutes a “disclo-

sure.” That ruling is contrary to this Court’s instruc-

tion to assume that “the ordinary meaning of the

language that Congress employed ‘accurately ex-

7 Under Rule 6(d), only the attorneys for the government,

the witness under examination, the stenographer or operator

of a recording device, and, when necessary, interpreters are

permitted to be present while the grand jury is in session.

Rule 6(d) forbids anyone other than the grand jurors them-

selves from attending the grand jury’s deliberations or vote.

presses the legislative purpose.’” Mills Music, Inc.

v. Snyder, No. 83-1153 (Jan. 8, 1985), slip op. 10

(citation and footnote omitted); see also American

Tobacco Co. v. Patterson, 456 us. 63, 68 (1982).

The ordinary meaning of “disclosure” does not in-

clude review of materials by persons who have had

prior access to them. The word “disclose,” which is

not defined in the Rule, means “to open up[,] to

expose to view[,] * * * [to] open up to general

knowledge” (Webster's Third New International

Dictionary 645 (1976)), and “to make known or

public * * * something previously held close or secret”

(Webster’s New Collegiate Dictionary 325 (1975)).

As the Eighth Circuit recently explained, “[f]or

there to be a disclosure [under Rule 6(e)], grand

jury matters must be disclosed to someone” (United

States v. Archer-Daniels-Midland Co., 785 F.2d 206,

212 (8th Cir. 1986) (emphasis in original), petition

for cert. pending, No. 85-1840). When a govern-

ment attorney has participated in grand jury pro-

ceedings and has therefore had lawful prior access

to the grand jury materials, his continued use of

them does not constitute a “disclosure” within the

ordinary meaning of that term, because the materials

are not opened up to the view of any additional indi-

vidual." Nothing is made “known or public” that

was “previously held close or secret.”

18 The initial grant of access to the grand jury materials to

the attorney participating in the grand jury proceedings is a

disclosure within the meaning of Rule 6(e) and is authorized

by paragraph (3) (A) (i) of the Rule. As the Court noted in

Sells, such access is properly granted not only to “those

prosecutors who actually did appear before the grand jury,”

but also to “anyone working on a given prosecution [because

each such person] would clearly be eligible under Rule 6(d)

to enter the grand jury room, even if particular individuals

The court of appeals reasoned, however, that, be-

cause the quantity of grand jury materials in this

case was too great for any person to commit to mem-

ory, the attorneys preparing the civil suit would need

to refer to at least some of these materials. The

court then ruled that “any resort to these materials

by the attorneys * * * to refresh their recollection

* * * is tantamount to a further disclosure” (Pet.

App. 12a).

But “disclosure” is the act of exposing materials

to view, not the act of viewing. The Antitrust Divi-

did not have occasion to do so.” 463 U.S. at 429 n.11 (em;

phasis in original). Thus, disclosure—the affording of access

—has been made to any attorney who was part of “the prose-

cution team” (Sells, 468 U.S. at 429 n.11 (emphasis in

original) ).

** The only support the court of appeals cited for its conclu-

sion that continued access amounted to disclosure was the

statement in the Ninth Circuit’s opinion in Sells that “‘ [eJach

day this order remains effective the veil of secrecy is lifted

higher * * * by the continued access of those to whom the

materials have already been disclosed.’” Pet. App. 12a-13a

(asterisks in original) (quoting In re Grand Jury Investiga-

tion No. 78-184 (Sells, Inc.), 642 F.2d 1184, 1188 (9th Cir.

1981), aff'd, 463 U.S. 418 (1983)). But the Ninth Circuit

was making an entirely different, and irrelevant, point. In

Sells, the government attorneys who handled the grand jury

investigation physically handed over grand jury materials to

Civil Division attorneys who had not appeared before the

grand jury. The passage quoted above simply responded to the

government’s mootness argument (which was based on the

fact that the transfer of materials had already occurred) by

pointing out that, to the extent that attorneys who had not

appeared before the grand jury continued to review materials

with which they were unfamiliar, “the veil of secrecy is lifted

higher.” The Ninth Circuit’s words (“have already been

disclosed”) correctly treat the disclosure as having occurred

when the materials were made available to the Civil Division,

not when they were read sometime later.

sion attorneys involved in this civil suit participated

in the grand jury proceedings and were given access

at that time to the grand jury materials. The grand

jury materials were therefore “disclosed” to these

- attorneys when they participated in the grand jury’s

proceedings.” Their continued use of these materials

does not involve a “disclosure” unless they reveal

them to someone else. Otherwise, nothing “is made

known or public * * * [that was] previously held close

or secret” because the government attorney was al-

ready a party to the secret.

2 The basis of a government attorney’s right to continue

to use documents in civil proceedings is, of course, his prior

lawful access to those documents under paragraph (3) (A) (i)

of Rule 6(e). We do not mean to suggest that mere knowledge

of information contained in a document entitles anyone to

obtain the document itself without a Rule 6(e) order. The

clearest example of this point is the well settled rule that a

witness is not entitled to a copy of his grand jury testimony

on demand, even though he obviously was present in the grand

jury room during the receipt of evidence, since a rule of

automatic access would expose grand jury witnesses to poten-

tial intimidation. See Executive Securities Corp. v. Doe, 702

F.2d 406, 408-409 (2d Cir.), cert. denied, 464 U.S. 818

(1983) ; United States v. Clavey, 565 F.2d 111, 114 (7th Cir.

1977), vacated, 578 F.2d 1219 (1978) (en banc), cert. denied,

439 U.S. 954 (1979); In re Bianchi, 542 F.2d 98, 100 (1st

Cir. 1976); Bast v. United States, 542 F.2d 898, 896 (4th

Cir. 1976) ; United States v. Fitch, 472 F.2d 548, 549 & n.6

(9th Cir.), cert. denied, 412 U.S. 954 (1973); In re Bottari,

453 F.2d 370, 371 (1st Cir. 1972); Valenti v. United States

Department of Justice, 5038 F. Supp. 230, 233-234 (E.D. La.

1980) ; In re Grand Jury Witness Subpoenas, 370 F. Supp.

1282 (S.D. Fla. 1974) ; In re Alvarez, 351 F. Supp. 1089 (S.D.

Cal. 1972); In re Grand Jury Proceedings, 73 F.R.D. 647

(M.D. Fla. 1977); 1 C. Wright, Federal Practice and Proce-

dure: Criminal § 106, at 247 (2d ed. 1982). Contra, In re

Minkoff, 349 F. Supp. 154 (D.R.I. 1972); In re Russo, 53

F.R.D. 564, 568-573 (C.D. Cal. 1971).

Nor does it make sense to treat an attorney’s re-

view of materials previously disclosed to him as a

“disclosure.” Obviously, an attorney can make “con-

tinued use” of any information that he learned and

committed to memory while participating in grand

jury proceedings, because his later recollection does

not involve a further “disclosure.” It would make

no sense to treat his equally private act of reviewing

the same information in written form as a “disclo-

sure.”

Rule 6 implements the principle that grand jury

proceedings should remain secret in two related ways.

First, Rule 6(d) identifies and limits the persons who

may be present before the grand jury while it is in

session. Second, Rule 6(e)(2) prohibits those per-

sons (except witnesses) and some others from disclos-

ing “matters occurring before the grand jury.” The

text of Rule 6 thus indicates that secrecy is breached

when a disclosure of matters occurring before the

grand jury is made to a person who did not have

lawful access to the grand jury proceedings. That

is not what is involved here. The government attor-

neys who participated in the grand jury investiga-

tion were in the grand jury room and were also

aware of the “matters” that occurred before the grand

jury. Their subsequent review of grand jury docu-

ments and testimony therefore does not expand the

scope of their initial, lawful use of grand jury mate-

rials and thus does not breach the secrecy concerns

underlying Rule 6(e).

*1 See United States v. Archer-Daniels-Midland Co., 785

F.2d at 212: “We do not believe that an attorney’s recollec-

tion of facts learned from his prior grand jury participation

can be considered [a] disclosure” within the meaning of

Rule 6(e).

C. The History Of Rule 6(e)

Given the clear meaning of the term “disclosure”

in Rule 6(e), only the most extraordinary showing of

a contrary legislative intent would justify departing

from the “plain meaning” of that term. See United

States v. James, No. 85-434 (July 2, 1986), slip op.

8; Consumer Product Safety Commission v. GTE Syl-

vania, 447 U.S. 102, 108 (1980). The history of Rule

6(e), however, does not contradict the import of its

plain language.

It has been the longstanding position of the Depart-

ment of Justice that if a grand jury investigation is

closed, the attorneys who participated in the grand

jury proceedings may, without obtaining a court or-

der, review grand jury matérials, to which they have

had prior access, when they consider and prepare a

subsequent civil suit.” This Court’s awareness of the

government’s practice was clearly reflected in its opin-

ion in United States v. Procter & Gamble Co., 356

U.S. 677 (1958), in which the Court noted, without

criticism, that “the Government is using the grand

jury transcript to prepare the case for trial.” Jd. at

678.% Since Procter & Gamble, the Rule has been re-

peatedly amended without any indication of congres-

22 See Sells, 463 U.S. at 455-460 (Burger, C.J., dissenting).

2% In Procter & Gamble, the Court held that the defendants

in a civil antitrust suit brought by the government must

demonstrate a particularized need to obtain grand jury mate-

rial for use in the suit. The Court also ruled that the govern-

ment may not initiate grand jury proceedings solely for the

purpose of advancing a civil investigation. 356 U.S. at 683-

684. The Court did not, however, disapprove the government’s

civil.use of grand jury materials where the grand jury was

used “for strictly criminal purposes” (Sells, 463 U.S. at 434

n.19). See Procter & Gamble, 356 U.S. at 6838-684.

sional disagreement with the Department’s practice.

Neither the advisory committee notes to the subse-

quent amendments to Rule 6(e)* nor the legislative

history of the 1977 congressional revisions of the

Rule * indicates any congressional perception that the

Department’s practice threatens grand jury secrecy

or otherwise violates Rule 6(e).

D. The Policies Underlying Rule 6(e)

The court of appeals reviewed the policy considera-

tions underlying this Court’s decision in Sells. Its

overall conclusion’was that “we might be tempted to

conclude that the antitrust division need not seek a

rule 6(e) order to use grand jury material to liitgate

this civil action. But, however minimal the threat

here, * * * the reluctance imposed on us from above

forces us to reinforce the principle of grand jury

secrecy” (Pet. App. 16a-17a). A review of the policy

considerations demonstrates, however, that the threat

posed by continued use of grand jury materials, in

the civil phase of a dispute, by an attorney who par-

ticipated in the grand jury proceedings is indeed

** See Notes of Advisory Committee on Rules (1966 Amend-

ment), 18 U.S.C. App. at 568, Notes of Advisory Committee

on Rules (1977 Amendment), 18 U.S.C. App. at 569; Notes

of Advisory Committee on Rules (1979 Amendment), 18

U.S.C. App. at 570-572; Notes of Advisory Committee (1988

Amendment), 18 U.S.C. (Supp. I) App. at 446-448; Notes of

Advisory Committee (1985 Amendment), 18 U.S.C.A. Rule

6, at 79-80 (West 1986).

*° See S. Rep. 95-354, 95th Cong., Ist Sess. (1977); H.R.

Rep. 95-195, 95th Cong., 1st Sess. (1977) ; 128 Cong. Rec.

11108-11112 (1977) (House debate); id. at 24641-24642

(Senate debate) ; id. at 25193-25196 (House debate on Sen-

ate amendments).

“minimal,” and certainly is not sufficient to overcome

the plain meaning of the rule and the importance of

such continued use to the effective enforcement of

federal law in cases with both criminal and civil

phases.

1. Secrecy

The most important purpose of Rule 6(e) is, of

course, to preserve the secrecy of grand jury proceed-

ings themselves. The Court has often recognized that

Rule 6(e) codifies an important, deeply-rooted policy,

stemming from the common law, that grand jury pro-

ceedings should remain secret in order to enable the

grand jury to perform its integral role in the criminal

process. See Sells, 463 U.S. at 423-425; Illinois v.

Abbott & Associates, Inc., 460 U.S. 557, 566-567 n.11,

572-573 (1983); Douglas Oil Co. v. Petrol Stops

Northwest, 441 U.S. 211, 218-219 & n.9, 222 (1979) ;

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

681-682 & n.6 (quoting United States v. Rose, 215

F.2d 617, 628-629 (3d Cir. 1954)). Many of the

most important reasons for maintaining grand jury

secrecy are no longer applicable when (as in any case

presenting this question) the grand jury proceedings

are over and the dispute is in its “civil phase,” and

when it is the government, rather than a private

party, that seeks access to the materials.” But secrecy

remains the primary purpose of the Rule.

2¢ In such « ‘es, there is no reason to fear that disclosure

will hamper the operation of the grand jury, aliow a suspect

to flee, or facilitate tampering with grand jury witnesses or

with the grand jurors themselves. Witnesses will also have

no reason to fear that they will be subject to intimidation or

retaliation because of their testimony before the grand jury.

See Abbott, 460 U.S. at 566-567 n.11; Douglas Oil, 441 U.S.

at 222; 8 J. Wigmore, Evidence in Trials at Common Law

§ 2360, at 734-735 (McNaughton rev. ed. 1961) ; 1 C. Wright,

The court of appeals was, appropriately, uncon-

cerned about continued use of grand jury materials

by the government attorneys themselves: “ [ijf it

only involved continued access by those antitrust divi-

sion attorneys who actually carried out the grand

jury investigation here, then the disclosure would

admittedly be limited” (Pet. App. 15a). Since such

continued use involves no increase in the number of

persons with access to the materials, even this modest

statement exaggerates the threat. The court of ap-

peals was, however, concerned about the risk of an

illegal or inadvertent disclosure of grand jury ma-

terials by paralegal and clerical support personnel as-

sisting the Antitrust Division’s attorneys in handling

such materials (id. at 15a-16a). The court said that

allowing such personnel to handle grand jury materials

would substantially increase the risk of an illegal or

inadvertent disclosure to others (id. at 16a).”

Federal Practice and Procedure: Criminal § 106, at 244 (2d

ed. 1982) ; see also Dennis v. United States, 384 U.S. 855, 872

n.19 (1966) ; cf. United States v. Socony-Vacuum Oil Co., 310

U.S. 150, 283-234 (1940).

**The court of appeals also believed that under Rule

6(e) (3) (A) (ii) such support personnel could not handle

grand jury materials in connection with a civil case without a

Rule 6(e) order. If the court of appeals were correct, the role

of support personnel would provide no argument whatever

for denying continued use by attorneys: support personnel

could not handle grand jury materials unless authorized by a

court order. We believe, however, that a paralegal or secre-

tary may handle materials that have been disclosed to the

supervising attorney, under his or her supervision, without a

court order, and that paragraph (3) (A) (ii), added in 1977,

addresses quite a different problem.

Rule 6(e) (3) (A) (ii) provides that disclosures otherwise

prohibited by Rule 6(e) may be made to “such government

But the court’s speculation about additional risk of

disclosure by paralegal or clerical personnel is un-

founded. If, as will presumably be the case, the

paralegal or secretary worked with the attorney

in the grand jury proceedings, no disclosure to

any new person occurs when he or she continues to

assist in a later civil investigation. The risk of dis-

closure by such a paralegal or secretary (which would

be punishable as contempt) is no greater than it

would be if there were a criminal prosecution, where

such support personnel are permitted to continue to

handle grand jury materials to which the supervising

attorney has access. And the possibility of an occa-

sional change in the identity of such personnel does

not materially change the practical risk. In the anal-

personnel (including personnel of a state or subdivision of a

state) as are deemed necessary by an attorney for the govern-

ment to assist an attorney for the government in the perform-

ance of such attorney’s duty to enforce federal criminal law.”

See page 2, supra. As this Court noted in Sells, this amend-

ment was necessary “because Justice Department attorneys

found that they often needed advice from outside personnel—

not only investigators from the Federal Bureau of Investiga-

tion, IRS, and other law enforcement agencies, but also

accountants, handwriting experts, and other persons with

special skills.” 463 U.S. at 4836 (emphasis added). The ad-

visory committee notes and congressional reports to Rule

6(e) (3) (A) (ii) show that it was adopted to permit attorneys

to reveal grand jury materials to assistants such as auditors,

investigators, or attorneys from federal agencies. See 18

U.S.C. App. at 566, 569-570; S. Rep. 95-354, supra, at 6-7;

H.R. Rep. 95-195, supra, at 3-4. There is no hint in the legisla-

tive history that this subsection of the Rule was necessary or

designed to allow secretaries, paralegals, or similar support

personnel to handle grand jury materials. The court of

appeals therefore erred in concluding that the disclosure of

grand jury materials to such persons would violate Rule

6 (e) (3) (A) (ii).

ogous situation of the attorney-client privilege, a

lawyer’s secretary and support staff are universally

(and sensibly) viewed as a necessary extension of

the attorney, and the communication of a client’s con-

fidences to such persons therefore does not destroy

the privilege.** The need of attorneys to rely on secre-

tarial and paralegal support should not have caused

the court of appeals to abandon the sensible rule that

an attorney to whom materials have been disclosed

may continue to use them in the civil phase of the

dispute.

The court of appeals also mentioned briefly the risk

that the possibility of use of grand jury materials by

the same government attorneys in civil litigation

might have a chilling effect on the willingness ef

grand jury witnesses to testify candidly (Pet. App.

16a; see Sells, 463 U.S. at 432). That risk, however,

seems negligible: a witness not “chilled” by the risk

that his testimony might be disclosed under the

Jencks Act, 18 U.S.C. 3500,” or a Rule 6(e) order,

or the risk that a prosecutor with a good memory

could rely on his recollection of that testimony in

8 See, e.g., United States v. Kovel, 296 F.2d 918, 921 (2d

Cir. 1961) ; Burlington Industries v. Exxon Corp., 65 F.R.D.

26, 40 (D. Md. 1974); Zenith Radio Corp. v. RCA, 121

F. Supp. 792, 794 (D. Del. 1954) ; People v. Williams, 97 Ill.

2d 252, 454 N.E.2d 220 (1988); Taylor v. Taylor, 179 Ga.

691, 177 S.E. 582 (1934); State v. Krich, 128 N.J.L. 519, 9

A.2d 803 (1939) ; 2 D. Louisell & C. Mueller, Federal-Evidence

§ 209, at 754 (1985); C. McCormick, Evidence § 91, at 218

(3d ed. 1984); 2 J. Weinstein & M. Berger, Weinstein’s

Evidence { 503 (a) (3) [01], at 508-524 (1985) ; 8 J. Wigmore,

supra, § 2301, at 583.

* The Jencks Act allows disclosure of the testimony of

witnesses before the grand jury to criminal defendants for

use at trial.

preparing a later civil suit, or the risk that the same

testimony could be compelled under the Antitrust

Civil Process Act, 15 U.S.C, 1311-1314, is unlikely to

be chilled by the modest additional risk that the same

attorneys may continue to use grand jury materials

in the civil phase of a dispute. We recognize that, in

Sells, the Court gave some weight to the possible chill-

ing effect of this additional use of the material; we

respectfully suggest that any slight additional risk

of chilM’may be present in a “continued use” case,

where the civil use may only be made by the same

attorneys, simply cannot outweigh the benefits to the

enforcement of federal law in civil proceedings.

Grand jury secrecy is undeniably important, but its

importance does not justify extending the reach of

Rule 6(e) beyond what Congress intended merely to

“reinforce” (Pet. App. 17a) the purposes that the

Rule serves. As this Court recently noted, the “[a]p-

plication of ‘broad purposes’ of legislation at the ex-

pense of specific provisions ignores the complexity of

the problems Congress is called upon to address.”

Board of Governors v. Dimension Financial Corp.,

No. 84-1274 (Jan. 22, 1986), slip op. 12. Sells was

not a mandate to expand the scope of Rule 6(e) to

reinforce in some unspecified way the principle of

grand jury secrecy. This Court has never “exalt[ed]

the principle of secrecy for secrecy’s sake” in grand

jury cases (Pittsburgh Plate Glass Co. v. United

States, 360 U.S. 395, 407 (1959) (Brennan, J., dis-

senting) ). Continuing access by a limited number of

% See 463 U.S. at 482 (noting that if automatic disclosure

were allowed, grand jury testimony would be “routinely avail-

able” for use in civil suits, thus “render[ing] considerably

more concrete the threat to the willingness of witnesses to

come forward and to testify fully and candidly”).

—s es

attorneys who assisted a grand jury in its investiga-

tion presents no serious threat to the interests safe-

guarded by grand jury secrecy. In stating that the

“reluctance imposed on us from above forces us to

reinforce the principle of grand jury secrecy” (Pet.

App. 17a) by requiring the Antitrust Division attor-

neys in this case to obtain a Rule 6(e) order, the

court of appeals misread Sells and exalted the prin-

ciple of secrecy for secrecy’s sake.

2. Integrity of the grand jury

In Sells, this Court also identified as policy con-

cerns underlying Rule 6(e) the need to protect the

integrity of the grand jury against misuse as a civil

investigative device and the need to prevent circum-

vention of limitations on civil discovery. See 463

U.S. at 432-434. The court of appeals found that

those considerations were inapplicable in this case,

saying “we do not view either of the last two prob-

lems in Sells as reasons to require a Rule 6(e) order

here.” This ruling was correct.

The premise for allowing the attorneys who par-

ticipated in grand jury proceedings to continue to use

grand jury materials in the civil phase of a dispute

is, of course, that the grand jury was convened and

used solely for bona fide criminal investigative pur-

poses. No one questions the bona fides of the grand

jury investigation in this case.

As the court of appeals recognized (see Pet.

App. 9a), the Antitrust Division has extensive pre-

complaint discovery powers under the Antitrust Civil

Process Act (ACPA), 15 U.S.C. 1311-1314. See As-

sociated Container Transp. (Australia), Ltd. v.

United States, 705 F.2d 53 (2d Cir. 1983). These

powers eliminate any need, and therefore any incen-

tive, to abuse the grand jury process to generate evi-

dence for a civil suit. The ACPA empowers the Anti-

trust Division, before a civil complaint is filed, to de-

mand documentary evidence (15 U.S.C. 1312(b) (2)),

answers to written interrogatories (15 U.S.C. 1312

(b) (3)), or oral testimony (15 U.S.C. 1312(b) (4)),

of “any person” who may “have any information[]

relevant to a civil antitrust investigation” (15 U.S.C.

1312(a)). The statute provides for nationwide serv-

ice of process (15 U.S.C. 1312(d)(2)), and recalci-

trant witnesses may be compelled to testify (15 U.S.C.

1312(i) (7) (B)). Conducting a grand jury investiga-

tion, in our experience, involves considerably more ef-

fort and expense than civil discovery under the

ACPA. The court of appeals was therefore correct in

concluding that the Antitrust Division would “gain

little by instigating a grand jury investigation for

the purpose of gathering evidence for a civil proceed-

ing, when it could gather that same information”

under the ACPA (Pet. App. 14a).

Even in cases not involving the Antitrust Division

there is no reason to fear abuse of the grand jury

process." In a “cgntinuing use” case, the fear ex-

pressed in Sells (463 U.S. at 431-432) that one set of

attorneys might use the grand jury to compile “a

storehouse of evidence” so that their “colleagues

would be free to use the materials generated * * *

for a civil cause,” simply does not apply. The attor-

neys participating in the grand proceedings have no

such incentive because any future civil use is limited

to refreshing their own memories (without disclo-

sure) if they happen to be assigned to the civil case.

*1 The Court said in Sells, 463 U.S. at 482, “[wle do not

mean to impugn the professional characters of Justice Depart-

ment lawyers in general.”

If the same attorneys do conduct the civil case they

can be held responsible for their own good faith in

conducting the prior grand jury proceedings. And if

there is a basis for challenge to the bona fides of the

grand jury proceedings, the attorneys responsible for

those proceedings are, by hypothesis, immediately

available to be called on to respond in the civil case.”

*2 The question may be asked why Rule 6(e) orders should

be dispensed with in “continued use” cases rather than merely

granted, after hearing, under a standard that takes apnpro-

priate account of the burdens of duplicative discovery. There

are four answers. First, of course, the plain meaning of

Rule 6(e) simply does not require a Rule 6(e) order in these

circumstances. Second, the requirement of a Rule 6(e) order

not only imposes a substantial burden of time and effort but

also (because a case frequently cannot proceed at all until

the matter is resolved) affords defendants the means to im-

pose repeated lengthy delays by litigating the correctness of

Rule 6(e) orders that are granted and the need for Rule 6(e)

orders that are not sought; the present case, which has been

delayed more than a year by this litigation, is an excellent

example. (It should be noted that although the Second Cir-

cuit held in this case that Rule 6(e) hearings can be conducted

ex parte, other courts have said that ex parte proceedings are

disfavored: see In re Doe, 587 F. Supp. 1038, 1042 (D.R.I.

1982).) Third, even if this court were to articulate an appro-

priate standard, lower courts will of course debate, disagree,

and sometimes err in applying that standard, effectively

denying continued use in cases where it should be permitted.

Fourth, and perhaps most important, there is no function for

the Rule 6(e) hearing to perform: the question whether it is

appropriate for attorneys who have conducted grand jury

proceedings to be permitted to review grand jury materials

(without disclosure) in preparing and litigating a related

civil case is one that demands a general answer, provided by

this Court.

Il. THE DISTRICT COURT DID NOT ABUSE ITS DIS-

CRETION BY AUTHORIZING THE DISCLOSURE

OF GRAND JURY MATERIALS FOR THE LIMITED

PURPOSE OF ENSURING CONSISTENT EN-

FORCEMENT OF FEDERAL LAW

The court of appeals held that the district court’s

Rule 6(e) order, which permitted the Antitrust Divi-

sion to disclose grand jury materials to specified at-

torneys in the Civil Division and United States Attor-

ney’s office for limited consultative purposes, should

be vacated because the Antitrust Division had not

shown a sufficient “‘particularized need.” The court

of appeals accepted the Antitrust Division’s need to

consult and to provide detailed information in order

to do so (Pet. App. 9a), but it ruled that the Anti-

trust Division did not “need” to use grand jury ma-

terials, because it has broad precomplaint discovery

powers under the ACPA, 15 U.S.C. 1311-1314. The

court acknowledged that “a substantial amount of

additional government time and effort may be re-

quired” (Pet. App. 10a) for this duplicative dis-

covery, but it ruled that, under Sells, “such a factor

can play no part in our analysis” (ibid.). In sum, the

court ruled that whenever the government can dupli-

cate grand jury materials through civil discovery or

some other means, it may not obtain a Rule 6(e)

order. The court thus denied continued use of grand

jury materials in precisely those cases where there is

no reason whatever to do so.

The district court properly exercised its “substan-

tial discretion” (Douglas Oil, 441 U.S. at 223) in

granting the Antitrust Division’s Rule 6(e) motion.”

88 Rule 6(e) (3) (C) (i) authorizes disclosure of grand jury

materia! “preliminarily to or in connection with a judicial

proceeding” upon a s§oysng of particularized need. See

It permitted the Antitrust Division to make disclosure

solely for the purpose of obtaining the advice of the

Civil Division and the United States Attorney in or-

der to ensure consistent government enforcement of

the False Claims Act. Ensuring consistency in the

enforcement of federal law is surely a legitimate pur-

pose, as well as a “relevant consideration[], peculiar

to [the] Government * * * that weigh[s] for * * *

disclosure” (Sells, 463 U.S. at 445). See Abbott, 460

U.S. at 567-568 n.15. The court of appeals did not

question the government’s showing that the Civil Di-

vision could not offer the Antitrust Division meaning-

ful advice without first examining some of the grand

jury materials.“ Accordingly, disclosure for this

limited purpose clearly served “the ends of justice”

(Socony-Vacuum Oil Co., 310 U.S. at 234).

The limited disclosure allowed by the district court’s

Rule 6(e) order also posed no material threat to any

of the interests that Rule 6(e) is meant to protect.

The grand jury proceedings had been terminated, and

the interests relevant to the protection of an ongoing

investigation, the court of appeals recognized, were

therefore irrelevant (Pet. App. 7a). The court also

recognized that limited purpose disclosure to the at-

torneys in the Civil Division and the United States

Abbott, 460 U.S. at 567 n.14 (disclosure appropriate where it

is necessary to avoid a possible injustice in another judicial

proceeding, need for disclosure outweighs the need for contin-

ued secrecy, and request is structured to cover only material

needed) ; Douglas Oil, 441 U.S. at 222 (same).

* As explained above (pages 5-6), the Antitrust Division

sought the authority to disclose grand jury materials to the

Civil Division only after its discussions with the Civil Divi-

sion not involving the use of grand jury materials had proved

fruitless. See Pet. App. 3a.

Attorney’s Office posed relatively little “risk of fur-

ther leakage or improper use” of the materials (ibid.

(quoting Sells, 463 U.S. at 445)). In particular, pro-

viding Civil Division attorneys with grand jury ma-

terials under a Rule 6(e) order involves no greater

risk of subsequent inadvertent or illegal disclosure

than providing the same attorneys with the same ma-

terials obtained under the ACPA. Indeed, while the

attorneys who receive such materials are required to

keep them confidential in either case (compare Rule

6(e) (2) with 15 U.S.C. 1313(c) (4) ), there may well

be less risk of inadvertent or illegal disclosure of

grand jury information than of information gathered

under the ACPA, since violation of a Rule 6(e) order

would be punishable as contempt of court. And the

court of appeals agreed that the disclosure would save

the government the substantial time and expense it

would incur if it had to recreate the materials, par-

ticularly the grand jury testimony, through the

ACPA (Pet. App. 8a). For all these reasons, the

Antitrust Division clearly demonstrated that “the

need for disclosure [was] greater than the need for

continued secrecy” (Douglas Oil, 441 U.S. at 222).

The court of appeals ruled, however, that in view

of the Antitrust Division’s civil discovery powers it

did not “need” to disclose the grand jury materials.

Pet. App. 9a-10a. It recognized the “substantial

amount of additional government time and effort”

involved in duplicating the materials, but ruled that

“such a factor can play no part” in a district court’s

decision whether to authorize the disclosure of grand

jury materials (Pet. App. 10a, citing Sells, 463 U.S.

at 431). That conclusion, however, seriously mis-

reads this Court’s decision in Sells.

In Sells, the Court rejected a construction of Rule

6(e) that would have permitted the disclosure of

grand jury materials without a Rule 6(e) order to

any Department of Justice attorney for use in pre-

paring a civil suit. The Court said that “saving time

and expense” did not justify dispensing with the re-

quirement of a Rule 6(e) order. 463 U.S. at 431.

But nowhere in Sells did the Court suggest that the

saving of time and expense “can play no part” (Pet.

App. 10a) in a district court’s analysis of whether a

Rule 6(e) order is appropriate in a particular case.

On the contrary, Sells expressly endorsed the disclo-

sure standard previously adopted in Douglas Oil (463

U.S. at 443-444), which Sells described as “a highly

flexible [standard], adaptable to different circum-

stances and sensitive to the fact that the require-

ments of secrecy are greater in some situations than

in others” (id. at 445). See Douglas Oil, 441 U.S.

at 223. Neither Sells nor Douglas Oil requires the

government to waste its resources in duplicative dis-

covery when the purpose of disclosure is manifestly

legitimate, there is no risk to secrecy, and there is

no other reason for compelling such duplication of

effort.”

There is no sound reason for a per se rule that

whenever the Department of Justice can duplicate

grand jury materials through civil discovery it must

do so, or forgo their use. Such a rule would fre-

quently, as in this case, hamper the government’s

%° The Court in Sells did suggest that district courts may

“take into account any alternative discovery tools available by

statute or regulation to the agency seeking disclosure” (463

U.S. at 445). But the inclusion of this point in a list of pos-

sible considerations hardly suggests a per se rule that what

can be duplicated must be duplicated.

efforts to enforce federal law in a consistent manner:

if the Antitrust Division must recreate grand jury

materials under the ACPA whenever it can do so,

resources that should be spent elsewhere will be need-

lessly diverted, and in many cases, resource and

time constraints will simply prevent effective civil

enforcement of the law.** That result would serve no

valid purpose, because it is in those situations where

civil discovery is capable of fully duplicating the

work of the grand jury that the reasons for nondis-

closure are least compelling. It makes no sense to

require the government to follow a roundabout

method of obtaining the same information it could

obtain directly under Rule 6(e). The only effect of

denying the Antitrust Division a Rule 6(e) order in

a case like the present is to burden the government

with needless delay and expense or to foreclose legiti-

% The Civil Division, though expert in the False Claims

Act, lacks the resources to investigate and prosecute all possi-

ble cases of fraud against the government and therefore

must rely on other Divisions and Offices—suitably advised—

for enforcement. It is particularly important, moreover, that

the Antitrust Division be able to consult with the Civil Divi-

sion regarding its enforcement practice under the False Claims

Act, because the Antitrust Division intends to enforce that

statute. vigorously in cases where the federal government

suffers a monetary loss as a result of an antitrust violation.

See D. Ginsburg, Antitrust Enforcement in the Second Term

2-8 (Nov. 8, 1985) (unpublished manuscript 19th New Eng-

land Antitrust Conference). At the same time, there is no

reason to suppose that fostering such consultation will always

result in the filing of additional False Claims Act suits. In-

deed, it may often be in a private party’s interest for the Civil

Division to be able to offer its advice, precisely because the

Civil Division is also in the best position to recommend when,

for policy reasons, a False Claims Act claim should not be

filed.

mate consultation and, in some cases, civil enforce-

ment.

The court of appeals stated that its decision to

vacate the Rule 6(e) order was “influenced” by the

fact that the government’s motion and the district

court’s order failed to specify the materials that

would be disclosed (Pet. App. 10a-lla). That con-

cern was misplaced. in the first place, the court of

appeals failed to take account of the inherently lim-

iting effect of the district court’s requirement that

any disclosure of grand jury materials be made solely

for the consultative purposes specified in the govern-

ment’s request.” Since nothing could be disclosed to

the Civil Division and the United States Attorney’s

Office for their: own use, or could be used by the

recipients for any purpose other than providing their

advice to the Antitrust Division, there simply was

no incentive to disclose more than the minimum

necessary for that advice to be given.”

57 The Antitrust Division’s motion made clear that the mate-

rials sought to be disclosed would not be used by the Civil

Division or the United States Attorney’s Office for a “further

investigation” (J.A. 13). The district court also specifically

stated in its order that the Civil Division was required to treat

“this information * * * as confidential” and to limit “its use

* * * solely to the purposes” for which disclosure was re-

quested and authorized (Pet. App. 23a). There is no claim.

that the Civil Division attorneys used this material for any- ~

thing other than the limited consultative purpose authorized

by the district court’s order. ‘

% The Antitrust Division’s motion sought the authority to

disclose only such internal memoranda and transcripts or

exhibits as would set forth the Antitrust Division’s view of

the evidence and enable the Civil Division to give meaningful

guidance on the application of the False Claims Act to the

conduct at issue. That material, the court of appeals seemed

The court of appeals also overlooked the fact that

the reason for the disclosure made impossible a com-

plete advance specification of the items to be dis-

closed. The Antitrust Division sought to obtain the

informed opinion of the Civil Division and the United

States Attorney’s office as to whether a False Claims

Act suit would be consistent with federal enforce-

ment policy. Neither the Antitrust Division nor the

district court was in a position to decide, in advance,

precisely what information would need to be disclosed

for this purpose; that would necessarily be deter-

mined, in part, in the consultative process itself. Of

course, the district court could have required the

Antitrust Division to come repeatedly to court to

identify each document or transcript that had to be

disclosed; but that formality would have served little

purpose except to increase the burden on the court

and provide opportunities for delay. Accordingly, in

light of the legitimate and limited purpose of this

disclosure request, the scope of the district court’s

order was altogether appropriate.

to acknowledge (Pet. App. lla), would involve only a smal!

portion of the grand jury materials. Indeed, out of a grand

jury record consisting of ayproximately 250,000 pages of sub-

poenaed documents and testimony by dozens of witnesses (id.

at 12a), the Antitrust Division actually disclosed to the Civil

Division approximately 350 pages of memoranda and ap-

proximately 100 pages of documents.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.