Amicus Curiae Brief — United States v. John Doe, Inc. I

No. 85-1613

Supreme Court of the Gnited States

OCTOBER TERM, 1986

UNITED STATES OF AMERICA,

Petitioner,

v.

JOHN Dogs, I, II, III, IV, V and

JOHN Does, Inc. I, II, and III,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF AMICI CURIAE

ARCHER-DANIELS-MIDLAND COMPANY AND

NABISCO BRANDS, INC.,

IN SUPPORT OF RESPONDENTS

Davip A. DONOHOE J. RANDOLPH WILSON*

OweEN M. JOHNSON, JR. WILLIAM H. ALLEN

PauL B. Hewitt CAROL FORTINE

Akin, Gump, Strauss, Covington & Burling

Hauer & Feld 1201 Pennsylvania Ave., N.W.

1333 New Hampshire Ave., N.W. P.O. Box 7566

Washington, D.C. 20036 Washington, D.C. 20044

(202) 887-4000 (202) 662-6000

Attorneys for Petitioner Attorneys for Petitioner

Archer-Daniels-Midland Nabisco Brands, Inc.

Company

* Counsel of Record

August 28, 1986

IN THE oe

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ...........0ccccccccccccccccccceess

STATEMENT OF THE CASE ...ccccccccccccscccccsccccccsccesssess

SUMMARY OF ARGUMENT _ ...........ccccccsccsccscsscsecsscsceees

Il.

Il.

TT EEE SEE SES ASC ROE DOOR

. THE SECOND CIRCUIT’S INTERPRETA-

TION OF RULE 6(e) AS PROHIBITING

THE CONTINUED USE OF GRAND JURY

MATERIALS IN THE CIVIL PHASE OF

A DISPUTE BY GOVERNMENT

ATTORNEYS WHO PARTICIPATED IN

THE CRIMINAL INVESTIGATION IS

FULLY CONSISTENT WITH THE PLAIN

MEANING OF THE RULE ...............:00000

THE LEGISLATIVE HISTORY OF RULE

6(e) SUPPORTS THE SECOND CIRCUIT’S

RE -dstiedrocmceapronepiavteszorpeseerceneccoccecocsos

THE POLICIES UNDERLYING THE

RULE OF GRAND JURY SECRECY SUP-

PORT THE HOLDING BELOW .................

A. The Risk of Illegal or Inadvertent Dis-

SII clit dadisshodediithenteteddssncdpeetodsrces

B. The Chilling of Grand Jury Witness Tes-

ITT itis scene bd cueeeienmmmipnogapeooransensbeeegees

C. The Threat to the Integrity of the Grand

SE Sea nsntcemermntnenicintgeinepeareenveceseensn

‘a a" UNDER RULE

(eNBXC\)_ IS APPROPRIATE VE-

OR BALANCING THE INTER-

EST OF GRAND JURY SECRECY

AGAINST THE GOVERNMENT’S NEED

FOR CONTINUING ACCESS TO GRAND

JURY MATERIALS IN PARTICULAR

SII ten intnctentecceibiiestinetiniemmenesnee

i cisetntinantibiidndsese

ow ow

12

15

19

19

20

22

23

26

Table of Authorities

CASES: Page

Allis-Chalmers Manufacturing Co. v. City of Fort

Pierce, 323 F.2d 233 (5th Cir. 1963) _........... 26

In re Disclosure of Testimony Before the Grand

Jury, 580 F.2d 281 (8th Cir. 1978) _ ............. 26

Oil Co. v. Petrol Stops Northwest, 441 U.S.

B11 CAGTO) .cvoccecescecccccccccescsccocecosovassalencsseosseoce 24, 26

Fund for Constitutional Government v. National

Archives & Records Service, 656 F.2d 856 (D.C.

Cle. BGBD) ccccccroscnccoscoccccnnccososssesstnsontesovestocones 13

In re Grand Jury Investigation, 774 F.2d 34 (2d

Cir. 1985) (Pet. App. 1a-18a.) — .......scseseseeseeees 4

In re Grand Jury Investigation, 610 F.2d 202 (5th

Che. TDDB). ccecccecscccessconsescececerccensocsssscesseososvanve 13

Illinois v. Abbott & Associates, Inc., 460 U.S. 557

CAGED). <eccccrcnesessassenessvccssonvecsnevesesoonsstseesnstoennes 24

Illinois v. F.E. Moran, Inc., 740 F.2d 533 (7th Cir.

BIDE . . ccenceccseccerersecesensesssnecsnsocteesnencainbetiiinnccsebons 26

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

ST CN.D. TH. 19GB) .ccocccccoscccceccscccccesessevsevccsees 26

Palermo v. United States, 360 U.S. 343 (1959)... 21

Smith v. United States, 423 U.S. 1303 (1975) (Doug-

las, J., in CHAMBE|TS) — ........cccccscccccsccccvscsesccesses 10

In re ial February 1975 Grand Jury, 662 F.2d

1232 (7th Cir. 1981), d sub nom. United

States v. Baggot, 463 U.S. 476 (1983) _......... 13

United States v. Archer-Daniels-Midland Co. & Na-

bisco Brands, Inc., 785 F.2d 206 (8th Cir.

TOBE). cecccccecsuccreccceeesreveseresoahapennenstaunbanonabansouens 1, 2

United States v. McDaniel, 482 F.2d 305 (8th Cir.

BOTED —. cececsccccssacoasovesnneesseastotonssinnbensbannnamntaersene 14

United States v. Minkin, 504 F.2d 350 (8th Cir.

1974), cert. denied, 420 U.S. 926 (1975) _ ...... 21

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

CTT (IBGE) .n.ccccocccceccccseccocsccsnsnnsonnencnsocsssoonsoooss 10, 18

Table of Authorities Continued

Page

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

NRA C RAS AS SS a 3, passim

STATUTES: )

Antitrust Civil Practice Act, 15 U.S.C. § 1811

jiledilabiiesbainndesthianslinaindsitnnanseedociscdiasens 9, 10, 21, 22, 23

Jencks Act, 18 U.S.C. § 3500 ...........cccccccccccscooees 21, 22

RULEs:

i 2, passim

I 3

EER EES SR Se 3, 16

| Sa ae Ra ae, 4, passim

LEGISLATIVE History:

' — Committee Notes on Federal Rule of Crim-

inal Procedure 6(e), 18 U.S.C. App., p. 1411 15

H.R. a No. 96-195, 95th Cong., 1st Sess.

(1 Pissseeipeanidsaslnatheaeentantsediabosesssenbecscocecccs 17

S. Rep. No. 95-354, 95th Cong., 1st Sess.

RRR RS Bats Oe SSR Si 8 17

Hearings on Proposed Amendments to the Federal

Rules of Criminal Procedure before the Sub-

committee on Criminal Justice of the House

Committee on the Judiciary, 95th Cong., 1st

RES SEAT a EA ge 17

123 Cong. Rec. 11108-12 (1977) o.eccccccccsescescsseceee. 16

OTHER AUTHORITIES:

ae New Collegiate Dictionary 325 (1975

idpitnlsenethibinahctibibeduitntdindirebibiebisehibiinedacteccons 12

PITTIEEE beabsninbinciiantontaplpciiiiaionitibicnnnitinieus 12

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1986

No. 85-1613

UNITED STATES OF AMERICA,

Petitioner,

Vv.

JoHN Dogs I, II, TI, IV, V and

JOHN Dogs, Inc. I, IJ, and III,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF OF AMICI CURIAE

ARCHER-DANIELS-MIDLAND COMPANY AND

NABISCO BRANDS, INC.,

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI CURIAE!

Amici Archer-Daniels-Midland Company (‘“ADM”’’)

and Nabisco Brands, Inc. (‘‘Nabisco’”’) are parties to

United States v. Archer-Daniels-Midland Co. and Na-

bisco Brands, Inc., 785 F.2d 206 (8th Cir. 1986), a

' Petitioner and respondent have given their written consent

to the filing of this brief.

2

case presenting issues of grand jury secrecy related

to those in this case and as to which a petition for

writ of certiorari, No. 85-1840, is pending in this

Court.

The amici’s case arose out of a federal grand jury

investigation into alleged price-fixing in the corn wet

milling industry, of which ADM and Nabisco are mem-

bers. The grand jury was dissolved without the issuance

of any indictments. Thereafter, the Antitrust Division

of the Justice Department investigated the leasing by

ADM of two corn wet milling plants from Nabisco,

which resulted in the filing of a civil lawsuit against

ADM and Nabisco alleging violations of federal anti-

trust laws. Relevant to the antitrust validity of the

ADM/Nabisco lease are the alleged price collusion, as

well as other subjects apparently covered by the grand

jury investigation of the corn wet milling industry.

ADM and Nabisco moved for dismissal without preju-

dice of the civil action challenging the lease, on the

ground that the Government had violated Fed. R. Crim.

P. 6(e) by assigning to the civil case, without obtaining

a court order, several lawyers and non-lawyers who

had extensive knowledge of and continuing access to

materials gathered in the course of the grand jury

investigation, in which they participated. The district

court denied the motion and the Eighth Circuit af-

firmed. United States v. Archer-Daniels-Midland Co.

and Nabisco Brands, Inc., 785 F.2d 206 (8th Cir. 1986).

The amici as petitioners for review of the Eighth

Circuit’s decision in that case have presented in No.

85-1840 questions identical or closely related to the

first question presented in this case.

3

STATEMENT OF THE CASE

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

418 (1983), this Court held that, under Fed. R. Crim.

P. 6(e), attorneys in the Civil Division of the Justice

Department who have not taken part in a grand jury

investigation may not have automatic access to grand ~

jury materials for use in a subsequent civil investi-

gation, but can obtain access only pursuant to a court

order upon a showing of particularized need. The

Court reasoned, inter alia, that automatic access to

grand jury materials was limited under Rule

6(eX3KAXi) to those attorneys who conducted the

criminal proceeding for use in their prosecutorial

function, 463 U.S. at 428-431; that subsection (3\A\ii)

of the Rule reflected Congress’ s intent to prohibit the

use of grand jury materials in civil proceedings in the

absence of a court order, id. at 435-42; and that al-

lowing automatic access to nonprosecutors for civil

use would undermine the policies underlying Rule 6(e)

by increasing the risk of inadvertent or illegal dis-

closure, threatening the willingness of grand jury wit-

nesses to testify fully and candidly, and tempting

prosecutors to misuse the grand jury for civil inves-

tigative ends, id. at 432-35.

The Sells Court, however, did not consider “any |

issue concerning continued use of grand jury mate-

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

who himself conducted the criminal prosecution.” 463

U.S. at 431 n.15. This case presents the issue thus

reserved in Sells. It grows out of a grand jury in-

vestigation initiated by the Antitrust Division of the

Justice Department into alleged bid-rigging and price

fixing by American companies in sales of tallow to a

foreign government. The grand jury heard testimony

4

from dozens of witnesses and collected approximately

250,000 documents pursuant to subpoena.

After the grand jury was dissolved without return-

ing indictments, the same attorneys who had con-

ducted the criminal investigation began a civil

investigation. They sought and obtained an order un-

der Rule 6(eX3XCXi) permitting disclosure of grand

jury evidence to attorneys in the Civil Division of the

Justice Department and in the Office of the United

States Attorney for the Southern District of New

York so that those attorneys could advise whether a

civil suit was appropriate under the False Claims Act.

The Civil Division advised the Antitrust Division that

such a suit would be appropriate; the Antitrust Di-

vision then notified respondents that it would file a

civil complaint against them under both the Sherman

Act and the False Claims Act. Respondents thereupon

moved in the district court to vacate the Rule 6e)

order and for a protective order prohibiting continued

use of the grand jury materials in the preparation

and litigation of the civil suit. The district court de-

nied the requested relief.

On appeal, the Second Circuit vacated the disclo-

sure order upon finding that the Government had not

made the requisite showing of particularized need and

reversed the district court’s denial of respondents’

motion to enjoin the Antitrust Division lawyers from

any further access to or use of the grand jury ma-

terials in the civil action. In re Grand Jury Investi-

gation, 774 F.2d 34, 43 (2d Cir. 1985) (Pet. App. la-

18a.) -

2 This brief addresses only the issue whether the court below

was correct in holding that the continued use of or access to

5

SUMMARY OF ARGUMENT

The central theme of the Government’s argument is

that the delay and expense incident to recreating grand

jury materials through civil process justifies a rule al-

lowing prosecutors to have automatic continued access

to grand jury materials for use in civil proceedings.

This argument exaggerates the burden on the Gov-

ernment and assumes, erroneously, that the claimed

burden is alone sufficient to show a particularized need

for disclosure. The Government’s supplemental argu-

ment that this case presents the question whether gov-

ernment prosecutors should always be disqualified from

. participation in subsequent civil suits is similarly mis-

directed. Although it is true that a, prosecutor’s use

in a civil case of unrefreshed recollection of grand jury

materials should be treated the same as the use of

refreshed recollection of such materials, neither use is

absolutely prohibited, but may be permitted pursuant

to a (CXi) court order. At bottom, the Government’s

position on undue burden or disqualification raises is-

sues more appropriately addressed in a hearing for a

disclosure order under Rule 6(eX3\C\Xi).

The Second Circuit’s holding comports with the

plain language of Rule 6(e), its legislative history, and

the policies underlying the rule of grand jury secrecy.

First, the Second Circuit’s holding that allowing

government lawyers who had conducted a criminal

grand jury materials in the civil phase of a case by government

attorneys who took part in the criminal investigation is prohib-

ited in the absence of a court order. It does not address the

issue whether the Second Circuit appropriately vacated the order

authorizing disclosure to attorneys who had not participated in

the criminal case.

6

investigation continued access to grand jury materials

for use in preparing and litigating a civil case was

“tantamount to” disclosure is clearly in accord with

the plain meaning of the Rule. The term “‘disclose”’

means to “make known” or “reveal” something for-

merly held secret. When a government lawyer is given

ar opportunity to use grand jury secrets in drafting

civil pleadings, formulating interrogatories and ques-

tioning witnesses, there is a disclosure of those se-

crets within the meaning of the Rule. The

Government’s contention that one can disclose mat-

ters occurring before the grand jury only by physically

transferring grand jury documents to someone who

has no right to see them does violence to the plain

meaning of the Rule as interpreted by this Court and .

others. The Government’s related contention that it

is possible for lawyers to make use of grand jury

materials in a civil case without revealing their con-

tents to others ignores the realities of case prepa-

ration and litigation. Finally, petitioner’s argument

that government lawyers who worked on the criminal

investigation have a “right” to use grand jury ma-

terials in subsequent civil litigation by virtue of their

initial lawful access to those materials is contrary to

this Court’s holding in Sells that government lawyers

are entitled to automatic access to grand jury ma-

terials only because of their need to use such mate-

rials in performing their duties to enforce federal

criminal law.

Second, the legislative history of Rule 6(e) supports

the holding of the court below. The history of the

Rule and its amendments clearly indicates that Con-

gress contemplated disclosure of grand jury materials

to government lawyers only insofar as access was

7

needed to enable those lawyers to carry out their

criminal law enforcement duties. Once the criminal

investigation is concluded, the need for such materials

to aid the lawyer in his prosecutorial duties evapo-

rates, thereby extinguishing the lawyer’s right ‘of ac-

cess. Moreover, continued use for civil investigative

purposes runs counter to ciear legislative history in-

dicating Congress's intent to prevent any use of grand

jury material in civil cases without the protections

afforded by judicial authorization. Congress did not

distinguish in this regard between use by lawyers who

had participated in the criminal investigation and use

by those who had not, and no basis exists for such

a distinction.

Indeed, the Government does not point to any af-

firmative legislative history supporting its claim of the

right of prosecutors to continued use. Rather, it relies

on an asserted “longstanding” practice of the Justice

Department allowing continued use of grand jury ma-

terials in civil cases, coupled with the absence of any

explicit legislative history indicating disapproval of

this alleged “‘longstanding’”’ practice. Since nowhere

in the legislative history does Congress evince any

awareness of the Justice Department’s asserted prac-

tice, however, its failure to expressly disapprove such

practice is without import. Moreover, this Court in

Sells expressly rejected both the claim that the De-

partment has a standard practice of allowing such

continued use and the claim that this Court had ap-

proved such a practice.

Fourth, the policies underlying the rule of grand

jury secrecy support the ruling below. Those policies

would be seriously threatened by risks inherent in

giving government lawyers an automatic right to use

8

grand jury materials in related civil litigation, i.e.,

the risk of disclosure of grand jury materials to oth-

ers, the risk of dampening the willingness of grand

jury witnesses to testify fully and candidly, and the

risk of misusing the grand jury for civil investigative

ends. Moreover, since these risks are essentially the

same regardless of whether or not the government

lawyers in the civil case participated in the prior grand

jury proceeding, the court below was correct in re-

jecting the claimed right of automatic access by gov-

ernment lawyers who had participated in the prior

grand jury proceeding, just as this Court in Sells re-

jected the claim of automatic access made by gov-

ernment lawyers who did not participate in the grand

jury matter.

Finally, the appropriate vehicle for weighing the

public interest in allowing government lawyers to have

continued access to grand jury materials against the

need for continued secrecy is a hearing on a request

for a court order based upon a showing of particu-

larized need. Such a hearing would address all of the

concerns articulated by the government without aban-

doning consideration of the interest in continued

grand jury secrecy. .

None of the Government’s contrary arguments is

compelling. Thus, the argument that a disclosure or-

der is not compelled by the plain meaning of the Rule

is based on the erroneous assumption that prohibited

disclosures under the Rule—-do not include use of re-

freshed or unrefreshed recollection of grand jury ma-

terials in civil litigation. The claim that the delay

inherent in seeking such an order is so burdensome

that the Court should relieve the Government from

complying with this requirement of Rule 6(e) is invalid

9

on its face. It also ignores this Court’s holding in

Sells that the same considerations should govern dis-

closure to government movants as well as private

ones. The argument that lower courts will inevitably

err in applying the standard for issuance of disclosure

orders overlooks the courts’ experience with the

standard and in any event is no justification for for-

going judicial responsibility to apply the legislative

mandate. Finally, the claim that there is no function

to be performed by hearings on requests for disclo-

sure orders is demonstrably wrong.

ARGUMENT

Introduction

The Government opens its argument with a policy

discussion that boils down to a contention that the

public interest in protecting the secrecy of grand jury

proceedings must give way in every case to an alleged

greater public interest in permitting continued use of

grand jury materials by lawyers representing the Gov-

ernment in a civil proceeding. (Pet. Br. 20.) The Gov-

ernment urges that a rule forbidding such continued

use would require it to recreate the grand jury ma-

terials through the use of the Antitrust Civil Practice

Act, 15 U.S.C. § 1311 (“ACPA”), or ordinary civil

discovery, a prospect that it decries as unduly bur-

densome, expensive and time-consuming. (Jd.) The

flaw in this argument is threefold.

First, the Government’s claims of delay and ex-

pense are exaggerated. Since a grand jury investi-

gation is ordinarily much more expansive in scope

than an ensuing related civil investigation, the Gov-

ernment will seldom have to duplicate all of the grand

10

jury materials. Only those materials relevant to the

civil lawsuit need be obtained through civil process.

Moreover, the Government argues elsewhere in its

brief, when urging that the ACPA eliminates any in-

centive to abuse the grand jury process to generate

evidence for a civil suit, that “conducting a grand

jury investigation ... involves considerably more ef-

fort and expense than civil discovery under the

ACPA.” (Pet. Br. 36.) The Government also insists

that it merely wants its lawyers to have the oppor-

tunity to review grand jury materials and not to make

them publicly available. If this is indeed all that the

Government seeks, then it would be required in any

event to use civil discovery to duplicate such of the

grand jury materials as it wishes to offer in evidence,

append to pleadings, or otherwise make public in the

civil proceeding.

Second, this Court has repeatedly held that the de-

lay and expense of alternative discovery methods does

not by itself ordinarily constitute ‘“‘particularized

need”’ for disclosure of grand jury materials pursuant

te court order. Sells, 463 U.S. at 431, 460 U.S. 557,

565-73 (1983); United States v. Procter & Gamble Co.,

356 U.S. 677, 682-83 (1958); Smith v. United States,

423 U.S. 1308, 1304 (1975) (Douglas, J., in chambers).

A fortiori, delay and expense alone will not justify a

rule allowing government lawyers automatic access to

_ grand jury materials for civil investigative purposes.

‘ Third, the Government’s argument concerning ex-

pense and delay is properly addressed to a court con-

sidering a motion for disclosure under Rule

6(eX3\KC\Xi). (See Part V, infra.)

The Government’s introductory discussion tenders,

apparently as its clinching policy argument, that the

11

ultimate question, in this case is whether attorneys

who conduct a criminal investigation must be dis-

qualified from participating in a subsequent related

civil lawsuit. (Pet. Br. 20-21.) It contends that dis-

ification would necessarily follow from acceptance

of the Second Circuit’s view that such attorneys can-

not have free access to grand jury materials. The

Government says that if the rule were to prohibit

such attorneys from using their refreshed recollection

of grand 1 yery materials, then their unrefreshed rec-

ollection of the materials would also subject them to

challenges. (Jd.) ‘

The Government is correct in its belief that ‘‘it

would make no sense’ uader Rule 6(e) to treat a

lawyer’s refreshed knowledge of grand jury materials

differently from his unrefreshed recollection of such

materials. (Pet. Br. 27.) If an opportunity to review

grand jury materials for use in civil litigation is dis-

closure violative of the letter and policy of Rule 6(e),

then the opportunity to use unrefreshed recollection

of matters occurring before the grand jury is equally

a disclosure permitted only pursuant to a court order

under 6(eX3\C\Xi).

The Government is wrong, however, in asserting

that the question is therefore one of disqualification.

The Second Circuit held, in accordance with this

Court’s opinion in Sells, that continued access by gov-

ernment lawyers to grand jury materials for use in

a civil case is not per se prohibited but may be per-

mitted pursuant to a (CXi) court order upon a showing

of particularized need. (Pet. App. 17a.) This applies

to all attorneys who conducted the prior grand jury

investigation: they are not forever barred from the

civil case but may be assigned to it pursuant to such

12

a court order based on a showing of particularized

need.

I. THE SECOND CIRCUIT’S INTERPRETATION OF

RULE 6(e) AS PROHIBITING THE CONTINUED

USE OF GRAND JURY MATERIALS IN THE CIVIL

PHASE OF A DISPUTE BY GOVERNMENT

ATTORNEYS WHO PARTICIPATED IN THE CRIM-

INAL INVESTIGATION IS FULLY CONSISTENT

WITH THE PLAIN MEANING OF THE RULE.

The Government assails the Second Circuit’s hold-

ing as contravening what it asserts to be the “plain

meaning” of the term ‘‘disclose” as used in Rule 6(e).

In truth, however, it is the Government’s interpre-

tation of that term that does violence to the plain

meaning of Rule 6(e).

The Government notes that the dictionary definition

of “disclose” is “to open up[,] to expose to view/(,]

*** [to] open up to general knowledge” (Webster’s

Third New International Dictionary 325 (1976 ed.)),

and “to make known or public * * * something pre-

viously held close or secret” (Webster’s New Colle-

giate Dictionary 325 (1975 ed.)). (Pet. Br. 24.) It then

repeatedly makes the remarkable assertion that, when

government attorneys rely on their unrefreshed rec-

ollection of grand jury materials or refer to those

materials to refresh their recollection, and then par-

ticipate in a subsequent civil suit making use of their

refreshed or unrefreshed recollection, they do not

“make known” formerly secret grand jury informa-

tion. (Pet. Br. 24, 26.) The Government apparently

contends either that the “plain meaning” of “dis-

close’”’ encompasses only the act of physically trans-

ferring the grand jury materials from one to another

(Pet. Br. 25, 26), or that a former grand jury lawyer

oe

13

will never in any way disclose grand jury secrets in

the subsequent civil case but will simply review the

materials and then make no further use of them. (Pet.

Br. 27.)

Both contentions are wrong. First, the proposition

that one can “disclose” grand jury secrets within the

meaning of Rule 6(e) only by physically showing or

transferring grand jury materials to someone is in-

consistent with the terms of the rule. Rule 6(e\2)

prohibits the disclosure of “‘matters occurring before

the grand jury”’; it is not limited to the physical trans-

fer or display of grand jury transcripts or documents.

One can obviously “disclose” or “‘make known’’ ‘“‘mat-

ters occurring before the grand jury” by talking about

them or by writing them down and revealing the

writing to others as well as by showing the original

embodiment of the grand jury secret to another.’

Second, to pretend that grand jury secrets will

never be revealed in the civil suit by a government

lawyer who has continued access to them simply ig-

nores the realities of trial preparatio: and litigation.

A grand jury lawyer involved in a subsequent civil

investigation will not be referring to grand jury ma-

terials to satisfy any personal curiosity. He will be

* See, e.g., In re Special February 1975 Grand Jury, 662 F.2d

1232, 1238 (7th Cir. 1981) (fact memorandum to file, summary

of case and summary of testimony all subject to Rule 6(e)), aff'd

sub. nom. United States v. Baggot, 463 U.S. 476 (1983); Fund

for Constitutional Gov’t v. National Archives & Records Serv.,

656 F.2d 856, 869 (D.C. Cir. 1981) (‘matters occurring before

the grand jury” include “not only the direct revelation of grand

jury transcripts but also the disclosure of information which

would reveal ... the substance of testimony . . .’’); In re Grand

Jury Investigation, 610 F.2d 202, 216-17 (5th Cir. 1980) (same).

14

referring to them for use in drafting pleadings, ques-

tioning witnesses and formulating trial strategy. Each

time such a lawyer drafts a complaint paragraph set-

ting forth facts or theories gleaned from grand jury

materials, he ‘“‘makes known” to all who read the

complaint the grand jury secrets. Similarly, each time

he formulates questions to witnesses based on facts

in secret grand jury proceedings, or drafts an inter-

rogatory based on such secrets, or formulates strat-

egy with co-counsel based on knowledge gleaned from

the grand jury materials, he “exposes to view’’ those

previously secret facts.‘

The weakness of its position on the meaning of

“disclosure” is apparent in the Government’s argu-

ment that grand jury attorneys, after gaining initial

lawful access to grand jury materials, thereafter have

a “right” to use the materials in civil litigation be-

cause such use “does not expand the scope of their

initial lawful use” permitted under the plain language

of the Rule. (Pet. Br. 27.) This argument is nothing

more than a variation of the totally discredited po-

sition that Rule 6(e) permits government attorneys to

have automatic access to grand jury materials for

both criminal and civil investigative purposes. Rejec-

.tion of this argument was the Court’s point of de-

in Sells. It held that government attorneys

are initially allowed access to grand jury materials

‘Cf, e.g., United States v. McDaniel, 482 F.2d 305, 311-12

(8th Cir. 1973) (where federal prosecutor read immunized tes-

timony of state grand jury witness before participating in federal

criminal proceeding against witness, indictment must be dis-

missed since testimony “could not be wholly obliterated from

the prosecutor’s mind” and thus must be presumed to have been

used in the preparation and trial of the case.)

15

“not for the general and multifarious purposes of the

Department of Justice, but because both the grand

jury’s functions and their own prosecutorial duties

require it.” Sells, 463 U.S. at 429 (emphasis in orig-

inal). The continued use of grand jury materials at

issue in this case obviously “expand[s] the scope” of

such initial, lawful prosecutorial use to include use in

civil litigation.

II. THE LEGISLATIVE HISTORY OF RULE 6(e) SUP-

PORTS THE SECOND CIRCUIT’S DECISION.

This Court held in Sells that the legislative history

of Rule 6(e) clearly indicated that disclosure of grand

jury materials for use in civil litigation by attorneys

who took no part in the criminal investigation should

not be permitted without a court order. 463 U.S. at

440. That legislative history cannot be squared with

the anomalous position now urged by the Government

that grand jury prosecutors have an automatic right

to use grand jury materials in preparing and litigating

a subsequent civil action, whereas other government

attorneys cannot use such materials without a court

order.

Rule &(e), as originally enacted, allowed government

attorneys automatic access to grand jury materials

only “inasmuch as they may be present in the grand

jury room during the presentation of evidence.’ Ad-

visory Committee Notes on Federal Rule of Criminal

Procedure 6(e), 18 U.S.C. App., p. 1411. As this Court

explained in Sells, the Advisory Committee Notes re-

flect Congress’s intent to allow access only to

attorneys actually working on the criminal matter,

and only because the grand jury’s functions and the

prosecutor’s duties require it. 463 U.S. at 429.

16

Obviously, once the grand jury investigation is

closed, continued access to grand jury materials for

use in civil litigation is not justified by the reasons

that justify access for criminal prosecutors.

As this Court recognized in Sells, the legislative

history of the 1977 amendment to Rule 6(e) indicates

that there should be no opportunity for use of grand

jury materials in a civil suit without a court order

under subsection (Ci) of Rule 6(eX3). 463 U.S. at

440. This history fully supports a ruling that would

allow the assignment of a grand jury lawyer to a

subsequent civil case or the grand jury lawyer’s con-

tinued access to grand jury documents pertinent to

the civil case only pursuant to an order obtained upon

a showing of particularized need.

The 1977 amendment to Rule 6(e) added the pro-

vision in Rule 6(eX3XAXii) allowing disclosure to non-

lawyers consisting of “such government personnel . . .

as are deemed necessary by an attorney for the gov-

ernment to assist an attorney for the government in

the performance of such attorney’s duty to enforce

federal criminal law.’’ The amendment, as originally

proposed, was not limited to enforcement of the fed-

eral ‘criminal law’. Thus, the House of Represen-

tatives, after hearings on the proposal, voted to

disapprove it. 123 Cong. Rec. 11108-12 (1977). The

House committee’s report recommended disapproval

specifically because

“fijt was feared that the proposed change

would allow Government agency personnel to

obtain grand jury information which they

could later use in connection with an unre-

lated civil or criminal case. This would enable

17

those agencies to circumvent Statutes that

specifically circumscribe the investigative

procedure otherwise available to them.’’ H.R.

Rep. No. 95-195, 95th Cong., lst Sess. 4

(1977) (footnote omitted).

The Senate Judiciary Committee altered the proposal

by inserting the criminal-law use limitation, in order

to “allay the concerns of those who fear that such

prosecutorial power will lead to misuse of the grand

' jury to enforce non-criminal Federal laws ....” S.

Rep. No. 95-354, 95th Cong., 1st Sess. 8 (1977); see

also id. at 1-2, 5-7.

The clear concern of Congress was the risk of use

of grand jury materials in civil litigation without the

protections afforded by the requirement of obtaining

court authorization. As this Court recognized in Sells, -

this concern applies to the risk of such use by the

Justice Department as well as by others. 463 U.S. at

438-40; see Hearings on Proposed Amendments to the

Federal Rules of Criminal Procedure before the Sub-

committee on Criminal Justice of the House Committee

on the Judiciary, 95th Cong., 1st Sess. 67 (1977)

(statement of Acting Deputy Attorney General Rich-

ard Thornburgh). Moreover, no distinction was drawn

in the legislative history between risk of use by

attorneys who participated in the grand jury pro-

ceedings and risk of use by attorneys who had not.

Rather, as this Court noted in Sells, “the key dis-

tinction was between disclosure for criminal use, as

to which access should be automatic, and for civil use,

as to which a court order should be required.’ 463

U.S. at 440.

The Government cites no legislative history affirm-

atively supporting its view that grand jury attorneys

18

should be allowed continued access to grand jury ma-

terials that are pertinent to civil litigation. Rather, it

points to the lack of any legislative history indicating

Congressional disapproval of what it asserts to be the

Department of Justice’s “longstanding practice” of

allowing attorneys who_participated in grand jury pro-

ceedings to review grand jury materials in considering

and preparing a subsequent civil suit. (Pet. Br. 28-

29.) It also asserts that this Court approved this

“longstanding practice’ in United States v. Procter

& Gamble Co., 356 U.S. 677 (1958), wherein the Court

noted that in that case, “the Government [was] using

the grand jury transcripts to prepare for trial [in a

civil case],”” 356 U.S. at 678. (Pet. Br. 28.) Neither

of those arguments has merit.

To begin with, none of the advisory notes or leg- ;

islative history that the Government cites indicates

any Congressional awareness of a governmental

“practice” of allowing continued use of grand jury

materials in civil litigation by government attorneys.

Thus, Congress’s failure to indicate any disagreement

with such practice is neither surprising nor signifi

cant.

Moreover, the argument that the Court in Procter

& Gamble “approved” continued use of grand jury

materials in a civil case by attorneys who have par-

ticipated in the grand jury proceeding was expressly

rejected by this Court in Sells.’ The Court also re-

“The Government contends that the issue of Government

access for civil use was settled in United States v. Procter

& Gamble Co., 356 U.S. 677 (1958). We disagree ... The

passages from that decision so heavily relied on by the dis-

¢

19

jected the Government’s “standard practice” argu-

ment, because such “‘ ‘standard practice’ was

somewhat inconsistent with itself, and in many in-

stances resulted in use of grand jury materials that

clearly would now be considered illegal under Rule

6(e).”” 463 U.S. at 440 n. 30.

Ill. THE POLICIES UNDERLYING THE RULE OF

GRAND JURY SECRECY SUPPORT THE HOLD-

ING BELOW.

This Court held in Sells that allowing access to

grand jury materials in civil litigation by lawyers who

took no part in the criminal investigation threatened

inadvertent or illegal disclosure to others, threatened

to chill the testimony of grand jury witnesses and

risked manipulation of the grand jury for civil inves-

tigative ends. 463 U.S. at 432-35. All of these con-

siderations apply as well to the use of refreshed or

unrefreshed recollection of grand jury materials by

lawyers who participated in the criminal investigation.

A. The Risk of Illegal or Inadvertent Disclosure

The Government argues that there is minimal risk

of inadvertent or illegal disclosure to others because

sent ... are simply the Court’s recognition that civil use of

properly created grand jury materials is not per se illegal.

The Court did not address, however, the conditions under

which such civil use by the Government could be permitted,

since the issue in the case was only whether private parties

could obtain access. In particular, no issue was presented

in the case as to whether, having used the grand jury for

strictly criminal purposes, the Government should have been

permitted to use the grand jury’s records for civil ends

(whether through the same attorneys or different ones ...)

The Court’s opinion did not discuss that aspect of the case

at all.” 463 U.S. at 434 n. 19 (last emphasis added).

20

there is no increase in the number of persons with

access to grand jury materials. This argument makes

the same erroneous assumption as the Government’s

plain meaning argument, i.e., that the only type of

disclosure prohibited by Rule 6(e) is the act of show-

ing or transferring grand jury materials to others not

authorized to receive them. But, as the discussion at

pp. 13-14, 17, supra, makes clear, where government

attorneys working on the civil phase of a dispute have

continued access to secret grand jury information, the

risk of disclosure to other attorneys working on the

case, to witnesses, and to the public is essentially the

same, whether or not the same government attorneys

in the civil case previously participated in the grand

jury proceeding.

Moreover, as the Second Circuit correctly held, con-

tinued use of grand jury materials by lawyers involved

in the civil lawsuit carries with it the likelihood that

paralegals and secretarial staff, including those who

did not work on the grand jury proceeding, will also

be exposed to the material. (Pet. App. 15a-16a.) This

obviously increases the risk that illegal or inadvertent

disclosure to others will occur. The Government’s con-

tention that this risk is no greater than that posed

by support personnel working with an attorney on a

criminal investigation ignores the possibility of dis-

closure by new support staff working with the ma-

terials and disregards the warning of this Court in

Sells that any threat to the secrecy of grand jury

proceedings must be prevented unless clearly author-

ized by law. 463 U.S. at 425.

B. The Chilling of Grand Jury Witness Testimony

The Second Circuit also correctly held that the con-

tinued use of grand jury materials in the civil phase

21

of a dispute clearly poses a risk of chilling the tes-

timony of grand jury witnesses. (Pet. App. 16a.) The

Government seeks to downplay this risk by pointing

out that grand jury witnesses are already subject to

having their testimony revealed under the provisions

of the Jencks Act or pursuant to a court order under

Rule 6(eX3XC\i), and may have their testimony com-

pelled under the provisions of the Antitrust Civil

Practice Act. (Pet. Br. 33.) It also suggests that a

prosecutor can rely on his recollection of their tes-

timony in preparing a later civil suit. Therefore, the

Government argues, a witness not ‘“‘chilled” by these

other potential uses of his testimony would not be

deterred by the prospect of wholesale automatic use

in a civil case by attorneys who worked on the crim-

inal case. (Jd.)

The Government’s argument is wrong for several

reasons. First, the attempt to equate routine use of

grand jury materials in civil litigation with other lim-

ited uses authorized by law fails at the outset. The

Jencks Act authorizes the disclosure of statements of

government witnesses, including grand jury testi-

mony, only if the witness is called by the United

States to testify at trial, only to the criminal -

defendant, and only insofar as it relates to the subject

matter of the witness’s testimony at trial. 18 U.S.C.

§ 3500; see, e.g., Palermo v. United States, 360 U.S.

-343, 349 (1959); United States v. Minkin, 504 F.2d

350, 356 (8th Cir. 1974), cert. denied, 420 U.S. 926

(1975). Similarly, a disclosure order under Rule 6(e)

will issue only upon a showing that the material is

needed to avoid injustice in another proceeding, that

the need for disclosure is greater than the need for

continued secrecy, and that the request for disclosure

22

applies only to materials so needed. Sells, 463 U.S.

at 443. Obviously these types-of uses are not equiv-

alent to the wholesale, automatic use of grand jury

materials in civil litigation by government lawyers

who participated in the grand jury proceedings. They

simply do not implicate this Court’s clear concern in

Sells that “{i}f a witness knows or fears that his tes-

timony before the grand jury will be routinely avail-

able for use in governmental civil litigation ... he

may well be less willing to speak for fear that he will

get himself into trouble in some other forum.” 463

U.S. at 482 (emphasis added).

Second, revelation under the Jencks Act or pur-

suant to a Rule 6(e) order or compelled production

pursuant to the ACPA is in each case clearly au-

thorized by statute or rule and thus is permissible

despite any chilling effect it may have on grand jury

witnesses. The possibility that the witness will see his

grand jury testimony made public for any of the sug-

gested reasons does noi argue for letting a govern-

ment lawyer refer to it and use it for civil litigation

as proposed by the Government, for “‘[iJn the absence

of a clear indication in a statute or Rule,” any threat

to grand jury secrecy is to be forestalled. Jd. at 425.

In any event, the availability of the ACPA to compel

testimony in a civil proceeding is not the same as the

availability of the grand jury testimony itself.

C. The Threat to the Integrity of the Grand Jury

Although the Second Circuit found that the free

use of grand jury materials proposed by the Govern-

ment posed no threat to the integrity of the grand

jury (Pet. App. 14a), we submit that it does. The

Government is proposing wholesale, routine availabil-

ity of grand jury documents in civil litigation by gov-

23

ernment attorneys who previously had access to those

materials in the criminal proceeding. It defies reality

to say that if grand ju_y materials are so freely avail-

able, the Government will have no incentive to use

the grand jury to collect information useful in a later

civil suit. This Court was concerned in Sells that, “‘if]

prosecutors in a given case knew that their colleagues

would be free to use the materials generated by the

grand jury for a civil case, they might be tempted to

manipulate the grand jury’s powerful investigative

tools to root out additional evidence useful in the civil

suit, or even to start or continue a grand jury inquiry

where no criminal prosecution seemed likely.” 463

U.S. at 432. The concern applies as well to prose-

cutors who know they can themselves make use of

the materials. This is particularly true if the govern-

ment’s complaints of the burdensomeness of ACPA

(Pet. Br. 20, 42) are to be taken at face value.

Moreover, the concern of the Court in Sells was

“based less on the belief that grand jury misuse is

in fact widespread than on our concern that, if and

when it does occur, it would often be very difficult

to detect and prove.” Jd. at 432. The Government’s

suggestion that the grand jury lawyer will be readily

available to testify if a question of misuse arises (Pet.

Br. 37) obviously does not answer this concern.

IV. A COURT ORDER UNDER RULE 6(e\3\C i) IS

THE APPROPRIATE VEHICLE FOR BALANCING

THE INTEREST OF GRAND JURY SECRECY

AGAINST THE GOVERNMENT’S NEED FOR

CONTINUING ACCESS TO GRAND JURY MaA-

TERIALS IN PARTICULAR CIVIL CASES.

All of the Government’s concerns about any need

for its civil lawyers to have access to grand jury

24

materials can be properly addressed in a hearing on

a request for a court disclosure order under Rule

6(eX3\CXi). The standard for granting such an order

is “flexible” and ‘accommodates any relevant consid-

eration peculiar to Government movants,”’ as this

Court explained in Sells:

“The Douglas Oil [Co. v. Petrol Stops North-

west, 441 U.S. 211 (1979)] standard is a

highly flexible one, adaptable to different cir-

cumstances and sensitive to the fact that the

requirements of secrecy are greater in some

situations than in others . . . [TJhe standard

... accommodates any relevant consideration

peculiar to Government movants, that weigh

for or against disclosure in a given case. For

example, a district court might reasonably

consider that disclosure to Justice Depart-

ment attorneys poses less risk of further

leakage or improper use than would disclo-

sure to private parties or the general public.

Similarly, we are informed that it is the usual

policy of the Justice Department not to seek

civil use of grand jury materials until the

criminal aspect of the matter is closed. Cf.

Douglas Oil, supra, at 222-223. And ‘under

the particularized-need standard, the district

court may weigh the public interest, if any,

served by disclosure to a governmental body

.... [Illinois v.] Abbott [& Associates, Inc.],

460 U.S. [557], at 567-568 n.15 [(1983)]. On

the other hand, for example, in weighing the

ieed for disclosure, the court could take into

account any alternative discovery tools avail-

25

able by statute or regulation to the agency

seeking disclosure.” 463 U.S. at 445.

None of the Government’s arguments for dispen-

sing with the requirement of a disclosure order is

compelling. The Government first says such an order

is not required by the plain meaning of Rule 6(e).

(Pet. Br. 37, n. 32.) This argument assumes that the

prohibited disclosure under the Rule does not include

reference to and use of grand jury materials in civil

litigation, which, as discussed at p. 13, supra, is sim-

ply wrong.

The Government next argues that the delay inci-

dent to seeking a court order is unduly burdensome.

(Pet. Br. 37, n. 32.) But such delay is inherent in the

requirement that an order be sought to limit inroads

on grand jury secrecy and cannot provide a reason

for eliminating the protection such an order affords.

Moreover, private parties face the same delay as does

the Government, and this Court in Sells expressly

held that the same standard governing disclosure to

private parties applies to the Government as well. 463

U.S. at 444. Thus, unless the Government is prepared -

to concede that the delay incident to requesting a

court order should eliminate any requirement for pri-

vate parties or the Government to seek such orders,

its argument lacks force.

The Government also argues that “if this Court

were to articulate an appropriate standard,” lower

courts might err in applying it. (Pet. Br. 37, n. 32.)

But this Court has already articulated the appropriate

standard in Sells, which-is the same standard of par-

ticularized need long applicable to private litigants

and which lower courts have had considerable expe-

26

rience applying.’ In any event, that some courts may

err in applying the standard is clearly not a reason

for abandoning judicial responsibility to interpret and

apply the legislative mandate.

Finally, the Government argues that there is no

useful function served by a Rule 6(eX3XC i) hearing,

as the question of continued use in a civil p

is a general question that this Court should answer.

(Pet. Br. 37, n. 32.) This argument, if accepted, would

reverse the main thrust of Rule 6(e), which mandates

that continued use of grand jury materials in a civil

proceeding is generally impermissible, and would sub-

stitute the erroneous concept that continued use by

government lawyers is generally permissible. The

function of a hearing on a request for court-ordered

disclosure is the important one of “weighing care-

fully” reasons for disclosure, such as those advanced

in this case by the Government, against the need for

secrecy, “[a]nd if disclosure is ordered, . . . including]

protective limitations on the use of the disclosed ma-

terial,’ Douglas Oil Co. v. Petrol Stops Northwest,

441 U.S. 211, 223 (1979). That function cannot be

performed by a general rule allowing automatic ac-

cess.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

6 See, e.g., In re Disclosure of Testimony Before the Grand

Jury, 580 F.2d 281, 286-88 (8th Cir. 1978); Illinois v. F.E. Moran,

Inc., 740 F.2d 533, 540 (7th Cir. 1984); Allis-Chalmers Mfg. Co.

v. City of Fort Pierce, 323 F.2d 233, 238-42 (5th Cir. 1963);

Illinois v. Harper & Row Publishers, Inc., 50 F.R.D. 37, 40-42

(N.D. Ill. 1969).

27

Respectfully submitted,

J. RANDOLPH WILSON

WILLIAM H. ALLEN

CAROL FORTINE

Covington & Burling

1201 Pennsylvania Ave., N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

Attorneys for Petitioner

Nabisco Brands, Inc.

Davip A. DONOHOE

OWEN M. JOHNSON, JR.

PAUL B. Hewitt

Akin, Gump, Strauss, Hauer

& Feld

1333 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 887-4000

Attorneys for Petitioner

Archer-Daniels-Midland Company