Following a federal grand jury investigation of possible
criminal violations of the Sherman Act, in which no indictment was
returned, the Government brought a civil suit under § 4 of the Act
to enjoin alleged violations of §§ 1 and 2 by appellees. The
Government was using the grand jury transcript to prepare the civil
case for trial, and appellees moved for discovery and production of
the transcript, in order that they might have the same privilege.
The District Court ruled that appellees had shown "good cause," as
required by Rule 34 of the Federal Rules of Civil Procedure, and
granted the motion. Being unwilling to produce the transcript, the
Government moved that the order be amended to provide that, if
production of the transcript were not made, the Court would dismiss
the complaint. The order was so amended; the Government persisted
in its refusal to produce the transcript; and the District Court
dismissed the complaint. The Government appealed to this Court.
Held:
1. The rule that a plaintiff who has voluntarily dismissed his
complaint may not appeal from the order of dismissal has no
application here, since the Government's motion to amend the
original order was designed only to expedite review of that order.
Pp.
356 U. S.
680-681.
2. Appellees failed to show "good cause," as required by Rule
34, for the wholesale discovery and production of a transcript of
the grand jury's proceedings, which, pursuant to a long established
policy, must normally be kept secret, when they did not show that
the criminal procedure had been subverted to elicit evidence in a
civil case. Pp.
356 U. S.
681-684.
Reversed.
Page 356 U. S. 678
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is a civil suit brought under § 4 of the Sherman Act, 26
Stat. 209, as amended, 15 U.S.C. § 4, to enjoin alleged violations
of § 1 and § 2 of the Act. The civil suit was filed on the heels of
a grand jury investigation in which no indictment was returned. The
Government is using the grand jury transcript to prepare the civil
case for trial, and appellees, who are defendants in that suit,
desire the same privilege. They moved for discovery and production
of the minutes under the Rules of Civil Procedure. [
Footnote 1] The District Court granted the
motion, ruling that appellees had shown "good cause" as required by
Rule 34. [
Footnote 2] It rested
on the ground that the Government
Page 356 U. S. 679
was using the transcript in preparation for trial, that it would
be useful to appellees in their preparation, that only in this way
could appellees get the information. These reasons, the court held,
outweighed the reasons behind the policy for maintaining secrecy of
the grand jury proceedings. 19 F.R.D. 122, 128.
The District Court entered orders directing the Government to
produce the transcript in 30 days and to permit appellees to
inspect and copy it. The Government, adamant in its refusal to
obey, filed a motion in the District Court requesting that those
orders be amended to provide that, if production were not made, the
court would dismiss the complaint. Alternatively, the Government
moved the District Court to stay the order pending the filing of an
appeal and an application for extraordinary writ. Appellees did not
oppose the motion, and the District Court entered an amended order
providing that, unless the Government released the transcript by
August 24, 1956, "the Court will enter an order dismissing the
complaint." [
Footnote 3] As the
Government persisted
Page 356 U. S. 680
in its refusal, the District Court entered judgment of
dismissal. The case is here by way of appeal, 32 Stat. 823, as
amended, 62 Stat. 869, 989, 15 U.S.C. § 29. We postponed the
question of jurisdiction to argument on the merits. 352 U.S.
997
First. The orders of dismissal were final orders,
ending the case. [
Footnote 4]
See United States v. Wallace & Tiernan Co.,
336 U. S. 793.
Appellees urge that this appeal may not be maintained, because
dismissal of the complaint was solicited by the Government. They
invoke the familiar rule that a plaintiff who has voluntarily
dismissed his complaint may not sue out a writ of error.
See Evans v.
Phillips, 4 Wheat. 73;
United States v.
Babbitt, 104 U. S. 767. The
rule has no application here. The Government at all times opposed
the production orders. It might, of course, have tested their
validity in other ways -- for example, by the route of civil
contempt. Yet it is understandable why a more conventional way of
getting review of the adverse ruling might be sought and any
unseemly conflict with the District Court avoided. When
Page 356 U. S. 681
the Government proposed dismissal for failure to obey, it had
lost on the merits, and was only seeking an expeditious review.
This case is therefore like
Thomsen v. Cayser,
243 U. S. 66, where
the losing party got the lower court to dismiss the complaint,
rather than remand for a new trial, so that it could get review in
this Court. The court, in denying the motion to dismiss, said
"The plaintiffs did not consent to a judgment against them, but
only that, if there was to be such a judgment, it should be final
in form instead of interlocutory, so that they might come to this
court without further delay."
Id. at
243 U. S.
83.
Second. On the merits, we have concluded that "good
cause," as used in Rule 34, was not established. The Government as
a litigant is, of course, subject to the rules of discovery. At the
same time, we start with a long established policy that maintains
the secrecy of the grand jury proceedings in the federal courts.
[
Footnote 5]
See United
States v. Johnson, 319 U. S. 503,
319 U. S. 513;
Costello v. United States, 350 U.
S. 359,
350 U. S. 362.
The reasons are varied. [
Footnote
6] One
Page 356 U. S. 682
is to encourage all witnesses to step forward and testify freely
without fear or retaliation. The witnesses in antitrust suits may
be employees or even officers of potential defendants, or their
customers, their competitors, their suppliers. The grand jury, as a
public institution serving the community, might suffer if those
testifying today knew that the secrecy of their testimony would be
lifted tomorrow. This "indispensable secrecy of grand jury
proceedings,"
United States v. Johnson, supra, at
319 U. S. 513,
must not be broken except where there is a compelling necessity.
There are instances when that need will outweigh the countervailing
policy. But they must be shown with particularity.
No such showing was made here. The relevancy and usefulness of
the testimony sought were, of course, sufficiently established. If
the grand jury transcript were made available, discovery through
depositions, which might involve delay and substantial costs, would
be avoided. Yet these showings fall short of proof that, without
the transcript, a defense would be greatly prejudiced, or that,
without reference to it, an injustice would be done. Modern
instruments of discovery serve a useful purpose, as we noted in
Hickman v. Taylor, 329 U. S. 495.
They, together with pretrial procedures, make a trial less a game
of blind man's buff and more a fair contest with the basic issues
and facts disclosed to the fullest practicable extent.
Id.
at
329 U. S. 501.
Only strong public policies weigh against disclosure. They were
present in
Hickman
Page 356 U. S. 683
v. Taylor, supra, for there, the information sought was
in the trial notes of the opposing lawyer. They are present here
because of the policy of secrecy of grand jury proceedings. We do
not reach in this case problems concerning the use of the grand
jury transcript at the trial to impeach a witness, to refresh his
recollection, to test his credibility, and the like. [
Footnote 7] Those are cases of particularized
need, where the secrecy of the proceedings is lifted discretely and
limitedly. We only hold that no compelling necessity has been shown
for the wholesale discovery and production of a grand jury
transcript under Rule 34. We hold that a much more particularized,
more discrete showing of need is necessary to establish "good
cause." The court made no such particularized finding of need in
case of any one witness. It ordered that the entire transcript be
delivered over to the appellees. It undoubtedly was influenced by
the fact that this type of case is complex, long drawn out, and
expensive to prosecute and defend. It also seemed to have been
influenced by the fact that the prosecution was using criminal
procedures to elicit evidence in a civil case. If the prosecution
were using that device, it would be flouting the policy of the law.
For, in these Sherman Act cases, Congress has guarded against
in camera proceedings by providing that "the taking of
depositions . . . shall be open to the public," and that no order
excluding the public shall be valid. 37 Stat. 731, 15 U.S.C. §
30.
We cannot condemn the Government for any such practice in this
case. There is no finding that the grand jury proceeding was used
as a shortcut to goals otherwise barred or more difficult to reach.
It is true that no indictment was returned in the present case. But
that is no reflection on the integrity of the prosecution. For
all
Page 356 U. S. 684
we know, the trails that looked fresh at the start faded along
the way. What seemed at the beginning to be a case with a criminal
cast apparently took on a different character as the events and
transactions were disclosed. The fact that a criminal case failed
does not mean that the evidence obtained could not be used in a
civil case. It is only when the criminal procedure is subverted
that "good cause" for wholesale discovery and production of a grand
jury transcript would be warranted. No such showing was made
here.
Reversed.
[
Footnote 1]
Appellee, Colgate-Palmolive Co., moved under Rule 6(e) of the
Rules of Criminal Procedure,
note
5 infra.
[
Footnote 2]
Rule 34 provides in part:
"Upon motion of any party showing good cause therefor and upon
notice to all other parties, and subject to the provisions of Rule
30(b), the court in which an action is pending may (1) order any
party to produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any
designated documents, . . . not privileged, which constitute or
contain evidence relating to any of the matters within the scope of
the examination permitted by Rule 26(b) and which are in his
possession, custody, or control. . . ."
[
Footnote 3]
Rule 37(b)(2) provides:
"If any party . . . refuses to obey . . . an order made under
Rule 34 to produce any document or other thing for inspection,
copying, or photographing . . . , the court may make such orders in
regard to the refusal as are just, and among others the
following:"
"(i) An order that . . . the contents of the paper . . . or any
other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party
obtaining the order;"
"(ii) An order refusing to allow the disobedient party to
support or oppose designated claims or defenses, or prohibiting him
from introducing in evidence designated documents or things or
items of testimony . . . ;"
"(iii) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient party;"
"(iv) In lieu of any of the foregoing orders or in addition
thereto, an order directing the arrest of any party or agent of a
party for disobeying any of such orders. . . ."
[
Footnote 4]
Rule 41(b) provides in part:
"Unless the court in its order for dismissal otherwise
specifies, a dismissal under this subdivision and any dismissal not
provided for in this rule, other than a dismissal for lack of
jurisdiction or for improper venue, operates as an adjudication
upon the merits."
While Rule 41(b) covers motions to dismiss made by defendants,
the portion quoted shows that it is not restricted to that
situation.
[
Footnote 5]
Rule 6(e) of the Rules of Criminal Procedure provides in
part:
"Disclosure of matters occurring before the grand jury other
than its deliberations and the vote of any juror may be made to the
attorneys for the government for use in the performance of their
duties. Otherwise a juror, attorney, interpreter or stenographer
may disclose matters occurring before the grand jury only when so
directed by the court preliminarily to or in connection with a
judicial proceeding or when permitted by the court at the request
of the defendant upon a showing that grounds may exist for a motion
to dismiss the indictment because of matters occurring before the
grand jury. No obligation of secrecy may be imposed upon any person
except in accordance with this rule."
[
Footnote 6]
In
United States v. Rose, 215 F.2d 617, 628-629, those
reasons were summarized as follows:
"(1) To prevent the escape of those whose indictment may be
contemplated; (2) to insure the utmost freedom to the grand jury in
its deliberations, and to prevent persons subject to indictment or
their friends from importuning the grand jurors; (3) to prevent
subornation of perjury or tampering with the witnesses who may
testify before grand jury and later appear at the trial of those
indicted by it; (4) to encourage free and untrammeled disclosures
by persons who have information with respect to the commission of
crimes; (5) to protect innocent accused who is exonerated from
disclosure of the fact that he has been under investigation, and
from the expense of standing trial where there was no probability
of guilt."
[
Footnote 7]
See, e.g., United States v. Socony-Vacuum Oil Co.,
310 U. S. 150,
310 U. S. 234.
Cf. Jencks v. United States, 353 U.
S. 657.
MR. JUSTICE WHITTAKER, concurring.
Believing that appellees did not make a sufficient showing of
such exceptional and particularized need for the grand jury minutes
as justified wholesale invasion of their secrecy in the
circumstances of this case, I concur in the Court's decision, but
desire to add a word.
Although a "no true bill" was voted by the grand jury in this
case -- and, hence, the Government's attorneys, agents, and
investigators were then through with the grand jury proceedings, if
they were conducted for lawful purposes -- the Government admits
that it has used the grand jury minutes and transcripts in its
preparation, and that it intends to use them in its prosecution, of
this civil case. Appellees suggest, principally on the basis that
no indictment was prepared, presented to, or asked of the grand
jury, that the Government's purpose in conducting the grand jury
investigation was to obtain,
ex parte, direct or
derivative evidence for its use in this civil suit which then was
contemplated. But the District Court made no finding of such a
fact. However, it is obvious that such could be, and probably has
often been, the real purpose of grand jury investigations in like
cases. The grand jury minutes and transcripts are not the property
of the Government's attorneys, agents, or
Page 356 U. S. 685
investigators, nor are they entitled to possession of them in
such a case. Instead, those documents are records of the court. And
it seems clear that where, as here, a "no true bill" has been
voted, their secrecy, which the law wisely provides, may be as
fully violated by disclosure to and use by the government counsel,
agents, and investigators as by the defendants' counsel in such a
civil suit.
In order to maintain the secrecy of grand jury proceedings, to
eliminate the temptation to conduct grant jury investigations as a
means of
ex parte procurement of direct or derivative
evidence for use in a contemplated civil suit, and to eliminate, so
far as possible, fundamental unfairness and inequality by
permitting the Government's attorneys, agents, and investigators to
possess and use such materials while denying like possession and
use by attorneys for the defendants in such a case, I would adopt a
rule requiring that the grand jury minutes and transcripts and all
copies thereof and memoranda made therefrom, in cases where a "no
true bill" has been voted be, promptly upon return, sealed and
impounded with the clerk of the court, subject to inspection by any
party to such a civil suit only upon order of the court made, after
notice and hearing, upon a showing of such exceptional and
particularized need as is necessary to establish "good cause" in
the circumstances, under Rule 34. Surely such an order may still be
made by the trial court in this case.
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER, and MR.
JUSTICE BURTON join, dissenting.
The Court reverses the judgment below without so much as
adverting to what seems to me the real and only question in the
case: did the District Court abuse its discretion by ordering the
Government to furnish the appellees with the transcript of the
grand jury proceedings?
Page 356 U. S. 686
I do not believe this question can be avoided or obscured by
casting the issue in terms of whether the appellees made an
adequate showing of "good cause" under Rule 34 for the discovery
which they sought and gained. What constitutes "good cause" under
Rule 34 necessarily turns on the facts and circumstances of each
particular case, and, in the last analysis, rests within the sound
discretion of the trial court. 4 Moore's Federal Practice (2d ed.
1950) § 34.08.
Viewing the matter in this light, I do not think it can be said
that the lower court was guilty of an abuse of discretion. A
cursory statement of the setting in which appellees were accorded
access to the grand jury transcript should suffice to make this
clear. By any standards, this antitrust litigation was of great
magnitude and complexity. In 1956, when discovery was ordered, the
litigation had been pending for over three years, and, despite the
assiduous efforts of the court to bring the issues within
manageable compass, the case seems still to have been far removed
from a posture where trial was in sight. The discovery order was
the subject of elaborate briefing and oral argument, during the
course of which the court found itself handicapped by the refusal
of the Government to indicate the exact use it had made, and
intended to make, of the grand jury transcript in connection with
its preparation and trial of the case. [
Footnote 2/1]
Page 356 U. S. 687
In granting discovery, the District Court wrote a reasoned
opinion in which it found: (1) that the Government had filed its
complaint in this civil suit following an eighteen-month grand jury
investigation, which had ended some four years before the discovery
order without an indictment's being returned; [
Footnote 2/2] (2) that the Government had made
continuing use of the grand jury transcript in its preparation of
the civil case; (3) that "the ends of justice" required that
appellees be given reciprocal access to such transcript in aid of
the preparation of their defense; [
Footnote 2/3] and (4) that disclosure would not, in the
circumstances, violate the traditional reasons for safeguarding the
secrecy of grand jury proceedings. [
Footnote 2/4]
Page 356 U. S. 688
The following quotation from the District Court's opinion
reveals its alert and sensitive concern over unnecessary disclosure
of grand jury proceedings:
"I realize there is a strong caveat against the needless
intrusion upon the indispensable secrecy of grand jury proceedings.
The reasons therefor were indelibly impressed upon we when I served
as Assistant Prosecutor of my home county for ten years, where I
spent the greater part of the time presenting cases to the grand
jury. I realize further that a strong and positive showing should
be required of persons seeking to break the seal of secrecy, which
never should be done except in extreme instances to prevent clear
injustice or an abuse of judicial processes. Which policy should be
served here to bring about justice -- the policy requiring secrecy,
or the policy permitting disclosure for discovery purposes only in
the interest of justice? I believe the requirement of secrecy in
this case can be safely waived and the minutes of the grand jury
divulged within the limits prescribed by the law, and that the
failure to do so would be an abuse of discretion and not in the
furtherance of justice. Under Rule 6(e) of the Federal Rules of
Criminal Procedure, our courts have, by way of interpretation,
extended their jurisdiction so as to remove 'the veil of secrecy'
around ground jury proceedings where, in the court's discretion,
the furtherance of justice requires it. If it can be done on the
criminal side, I can see no compelling reason why it cannot be
safely done on the civil side in this case. I would not grant these
motions if I thought they were prejudicial to the public interest,
useless or unnecessary, would not reveal the information sought, or
defendants already possessed all the necessary information or could
obtain it by pursuing a different remedy. "
Page 356 U. S. 689
The findings of the District Court as to what the procedural
situation in this complicated case fairly required, made as they
were by a judge who had been in charge of this case from the
beginning, should not be disturbed by this Court any more lightly
than findings made after a trial on the merits.
Cf. United
States v. Yellow Cab Co., 338 U. S. 338;
United States v. Oregon State Medical Society,
343 U. S. 326.
The Court recognizes that had the Government's grand jury
investigation been instituted solely in aid of a civil suit -- that
is without any thought of obtaining an indictment -- the appellees
would then have been entitled to see the entire grand jury
transcript. Although it may be true that no finding has been made
here of such misuse of the grand jury process, I am unable to see
why the case where a grand jury investigation has aborted and the
Government thereafter uses the transcript solely in aid of its
civil case should be treated differently. The only distinction
relates to the Government's motive in instituting the grand jury
proceedings. For, in both instances, the effect on the litigation
is precisely the same, and in both instances, the Government's
conduct disrespects the policy underlying 37 Stat. 731, 15 U.S.C. §
30, [
Footnote 2/5] requiring the
testimony of witnesses in government Sherman Act equity suits to be
taken in public. In neither type of case should the Court undertake
to lay down a fixed rule concerning disclosure of grand jury
transcripts, but instead should leave the matter to the sound
discretion of the
Page 356 U. S. 690
trial judge, to be dealt with by him in light of the particular
circumstances of each case.
I fully subscribe to the view that the strong public policy of
preserving the secrecy of grand jury proceedings should prevent the
general disclosure of a grand jury transcript except in the rarest
cases. But the inflexible rule announced today, which allows that
policy to be overcome only in instances where it can be shown that
the Government has "subverted" the grand jury process in the manner
suggested by the Court, seems to me an unwise and unnecessary
curbing of trial judges in the efficient and fair handling of the
difficult problems presented by a unique type of litigation.
See the Prettyman Report on Procedure in Anti-Trust and
other Protracted Cases, 13 F.R.D. 62, which has been adopted by the
Judicial Conference of the United States. This is particularly so
in cases like the one before us, where the grand jury's functions
have long since ended.
See United States v. Socony-Vacuum Oil
Co., 310 U. S. 150,
310 U. S.
233-234; 8 Wigmore, Evidence (3d ed. 1940), § 2362. Here
as elsewhere in the realm of discretionary power appellate review
should be the safeguard against abuse in particular instances,
rather than the
a priori imposition of rigid restrictions
upon trial judges which leave them powerless to act in appropriate
cases. Under the facts shown by this record, I am unable to say
that the District Court abused its discretion in ordering the grand
jury transcript to be made available to the appellees.
[
Footnote 2/1]
The following is taken from the District Court's opinion:
". . . during the oral argument of these motions, the court
asked Mr. McDowell, plaintiff's attorney, the following
questions:"
" Mr. McDowell, do you object to submitting a detailed affidavit
stating exactly (a) what use, if any, plaintiff has made in the
past of the grand jury transcripts while preparing for the trial of
this case; (b) what use, if any, plaintiff intends to make of the
transcripts during its future preparation for the trial; (c) what
use, if any, plaintiff intends to make of the transcripts during
the trial."
"He wished to confer with his superiors in the Department of
Justice before deciding if he would answer the questions. The court
awaited candid answers -- but in vain. For Mr. McDowell wrote:"
" The questions which you put to me at the hearing on December
12th relating to the use by the government of transcripts of grand
jury testimony have been given serious consideration within the
Department of Justice. I am instructed respectfully to inform you
that we do not wish to add to the statement which I made at the
hearing."
"His 'statement' at the hearing did not answer the questions.
Because the plaintiff arbitrarily has refused to answer the court's
questions relating to any use of these transcripts, the court has
been denied helpful information, and, as a result, has been forced
to seek its answers elsewhere."
(19 F.R.D. 124.)
[
Footnote 2/2]
In response to questions put at oral argument, government
counsel informed us that the Government had not requested the grand
jury to return an indictment.
[
Footnote 2/3]
In the Appendix to its opinion, which reviews some of the prior
proceedings, the District Court refers to the following comment
made by it at an earlier stage of the case:
"'One of my concerns is that, since plaintiff has been preparing
its case for probably three years, or longer, how long must we wait
for defendants to prepare their case? The sooner defendants are
informed of plaintiff's factual contentions, the sooner defense
preparation can commence-and not before, obviously.'"
[
Footnote 2/4]
See United States v. Rose, 215 F.2d 617, 628-629,
quoted from in
footnote 6 of the
Court's opinion
[
Footnote 2/5]
"[In] the taking of depositions of witnesses for use in any suit
in equity brought by the United States under the [Sherman Act], and
in the hearings before any examiner or special master appointed to
take testimony therein, the proceedings shall be open to the public
as freely as are trials in open court; and no order excluding the
public from attendance on any such proceedings shall be valid or
enforceable."