Respondents are independent gasoline dealers, one of which
operates in Arizona and several other States, and two of which
operate in the vicinity of Tucson, Ariz. They brought civil
antitrust actions in the District Court in Arizona against several
large oil companies, including petitioners. While these proceedings
were in pretrial stages, a Government antitrust investigation in
the Central District of California culminated in an indictment for
illegal price fixing in California, Arizona, and elsewhere, of
petitioners and several other large oil companies, all of which
ultimately pleaded
nolo contendere. After unavailing
discovery requests, respondents petitioned the District Court for
the Central District of California to order release of certain
grand jury transcripts under Fed.Rule Crim.Proc. 6(e)(2)(C)(i),
which provides for disclosure of grand jury transcripts "when so
directed by a court preliminarily to or in connection with a
judicial proceeding." The Antitrust Division did not object to the
disclosure. Over petitioners' objection, the transcripts' release
was ordered by the District Court for the Central District of
California, subject to various protective conditions. The Court of
Appeals affirmed, relying upon
United States v. Procter &
Gamble Co., 356 U. S. 677,
which held that parties seeking grand jury transcripts must show
that the material sought is needed to avoid a possible injustice in
another judicial proceeding; that the disclosure need exceeds the
need for continued secrecy; and that the disclosure request covers
only the material needed. The court found that continued grand jury
secrecy was not a substantial factor, as the grand jury proceeding
had concluded three years before and the transcripts had already
been released to petitioners. Although the court conceded that it
knew little about the Arizona proceedings, it speculated that the
transcripts would facilitate prosecution of the civil suits.
Held:
1. The courts below did not err in selecting the standard
governing disclosure of grand jury transcripts under Rule 6(e).
Though the veil of grand jury secrecy should not be lifted
unnecessarily, it is recognized
Page 441 U. S. 212
that, in some situations, justice may demand that discrete
portions of transcripts be made available in subsequent
proceedings. Here, the California District Court made clear that it
had to be demonstrated that a particularized need for disclosure
outweighed the interest in continued grand jury secrecy, and the
Court of Appeals correctly understood the standard applied in
Procter & Gamble, supra. Pp.
441 U. S.
217-224.
2. In this case, however, the California District Court having
custody of the grand jury transcripts abused its discretion in
issuing the disclosure order, for that court concededly had no
dependable knowledge of the status of, and the needs of the parties
in, the Arizona civil suits. The court based its decision largely
upon unsupported assertions of counsel during oral argument,
supplemented by other inadequate data such as the criminal
indictment and the civil complaints. Even a comparison of those
documents did not clearly show what portions, if any, of the
transcripts would be pertinent to the Arizona actions, which
involved only some of the same parties and only some of the same
territory as were involved in the criminal case. Under these
circumstances, the better practice would have been for the
California District Court, after making a written evaluation of the
need for continued grand jury secrecy and a determination that the
limited evidence before it showed that disclosure might be
appropriate, to send the requested materials to the Arizona
District Court where the civil cases were pending. Pp.
441 U. S.
224-231.
571 F.2d 1127, reversed and remanded.
POWELL, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined.
REHNQUIST, J., filed a concurring opinion,
post, p.
441 U. S. 231.
STEVENS, J., filed a dissenting opinion, in which BURGER, C.J., and
STEWART, J., joined,
post, p.
441 U. S.
233.
Page 441 U. S. 213
MR. JUSTICE POWELL delivered the opinion of the Court.
This case presents two intertwined questions concerning a civil
litigant's right to obtain transcripts [
Footnote 1] of federal criminal grand jury proceedings.
First, what justification fr disclosure must a private party show
in order to overcome the presumption of grand jury secrecy
applicable to such transcripts? Second, what court should assess
the strength of this showing -- the court where the civil action is
pending or the court that acts as custodian of the grand jury
documents?
I
Respondent Petrol Stops Northwest is a gasoline retailer
unaffiliated with any major oil company. In 1973, it operated 104
service stations located in Arizona, California, Oregon,
Washington, and several other States. On December 13, 1973,
respondent filed an antitrust action in the District of Arizona
against 12 large oil companies, including petitioners Douglas Oil
Co. of California and Phillips Petroleum Co. [
Footnote 2] In its complaint, respondent alleged
that, on January 1, 1973, there had been a sharp reduction in the
amount of gasoline offered for sale to it, and that this reduction
had resulted from a conspiracy among the oil companies to restrain
trade in gasoline, in violation of §§ 1 and 2 of the Sherman Act.
26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2. As a part of this
conspiracy, respondent charged, petitioners and their codefendants
had fixed the prices of gasoline at the retail and wholesale
distribution levels in California Oregon, and Washington. [
Footnote 3]
Page 441 U. S. 214
Respondents Gas-A-Tron of Arizona and Coinoco also independently
sell gasoline through service stations they own or lease. Unlike
respondent Petrol Stops Northwest, however, their operations are
limited to the vicinity of Tucson, Ariz. On November 2, 1973,
Gas-A-Tron and Coinoco filed an antitrust complaint in the District
of Arizona naming as defendants nine large oil companies, including
petitioner Phillips Petroleum Co. [
Footnote 4] Like respondent Petrol Stops Northwest,
Gas-A-Tron and Coinoco alleged that, as of January 1, 1973, their
supply of gasoline had been sharply reduced, and attributed this
reduction to a conspiracy to restrain trade in violation of the
Sherman Act. The specific charges of illegal behavior asserted by
the two retailers substantially paralleled those made by Petrol
Stops Northwest in its complaint, and included an allegation that
the defendants had fixed the price of gasoline at the wholesale and
retail levels. [
Footnote 5]
Although the issues and defendants in the two actions were
substantially the same, the cases were assigned to two different
judges in the District of Arizona. In February, 1974, respondents
served upon petitioners a set of interrogatories which included a
request that petitioners state whether either of their companies at
any time between January 1, 1968, and December 14, 1974
(
sic), had had any communication with any of their
competitors concerning the wholesale price of gasoline to be sold
to unaffiliated retailers. Petitioners also were asked to produce
any documents they had concerning
Page 441 U. S. 215
such communications. Petitioners responded that they were aware
of no such communications, and therefore could produce no documents
pertinent to the request. [
Footnote
6]
In the meantime, the Antitrust Division of the Department of
Justice had been investigating since 1972 the pricing behavior on
the west coast of several major oil companies, including
petitioners.
See App. 26. As part of this investigation,
employees of petitioners were called to testify before a grand jury
empaneled in the Central District of California. The Government's
investigation culminated on March 19, 1975, when the grand jury
returned an indictment charging petitioners and four other oil
companies with having conspired to fix the price of "rebrand
gasoline" in California, Oregon, Washington, Nevada, and Arizona.
[
Footnote 7] The indictment
alleged that the price-fixing conspiracy had begun in July, 1970,
and had continued at least until the end of 1971.
Page 441 U. S. 216
Although initially all six defendants charged in the criminal
indictment pleaded not guilty, by December, 1975, each had pleaded
nolo contendere and was fined $50,000. Before changing
their pleas, petitioners, acting pursuant to Fed.Rule Crim.Proc.
16(a)(1)(A), asked the District Court for the Central District of
California to give them copies of the transcripts of testimony
given by their employees before the grand jury. Their request was
granted, and it appears that petitioners continue to possess copies
of these transcripts.
In October, 1976, respondents served upon petitioners requests
under Fed.Rule Civ.Proc. 34 for production of the grand jury
transcripts in petitioners' possession. Petitioners objected to the
requests for production, arguing that the transcripts were not
relevant to the private antitrust actions and that they were not
likely to lead to any admissible evidence. Respondents did not
pursue their discovery requests by making a motion in the Arizona
trial court under Fed.Rule Civ.Proc. 37 to compel discovery.
See n 17,
infra. Rather, they filed a petition in the District Court
for the Central District of California asking that court, as
guardian of the grand jury transcripts under Fed.Rule Crim.Proc.
6(e), to order them released to respondents. An attorney from the
Antitrust Division of the Department of Justice appeared and
indicated that the Government had no objection to respondents'
receiving the transcripts already made available to petitioners
under Fed.Rule Crim.Proc. 16(a)(1)(A). He suggested to the court,
however, that the real parties in interest were petitioners, and
therefore that they should be given an opportunity to be heard. The
California District Court accepted this suggestion, and petitioners
participated in the proceedings as parties adverse to
respondents.
After briefing and oral argument, the court ordered the Chief of
the Antitrust Division's Los Angeles Office
"to produce for [respondents'] inspection and copying all grand
jury transcripts previously disclosed to Phillips Petroleum Company
or Douglas Oil Company of California or their attorneys
Page 441 U. S. 217
relating to the indictment in
United States v. Phillips, et
al., Criminal Docket No. 75-377."
App. 48-49. The production order was subject, however, to
several protective conditions. The transcripts were to "be
disclosed only to counsel for [respondents] in connection with the
two civil actions" pending in Arizona. Furthermore, under the
court's order the transcripts of grand jury testimony "may be used
. . . solely for the purpose of impeaching that witness or
refreshing the recollection of a witness, either in deposition or
at trial" in the Arizona actions. Finally, the court forbade any
further reproduction of the matter turned over to respondents, and
ordered that the material be returned to the Antitrust Division
"upon completion of the purposes authorized by this Order." On
appeal, the Ninth Circuit affirmed the disclosure order.
Petrol
Stops Northwest v. United States, 571 F.2d 1127 (1978). The
Court of Appeals noted that, under
United States v. Procter
& Gamble Co., 356 U. S. 677
(1958), a party seeking access to grand jury transcripts must show
a "particularized need." In evaluating the strength of the need
shown in the present case, the Ninth Circuit considered two
factors: the need for continued grand jury secrecy and respondents'
need for the requested material. The court found the former need to
be insubstantial, as the grand jury proceeding had concluded three
years before and the transcripts already had been released to
petitioners. As to respondents' claim, the court conceded that it
knew little about the Arizona proceedings, but speculated that the
transcripts would facilitate the prosecution of respondents' civil
suits. Petitioners' answers to the 1974 interrogatories concerning
price communications with competitors appeared to be at odds with
their pleas of
nolo contendere in the California criminal
action.
II
Petitioners contend that the courts below erred in holding that,
because the grand jury had dissolved and the requested material had
been disclosed already to the defendants, respondents
Page 441 U. S. 218
had to show only a "slight need" for disclosure. [
Footnote 8] According to petitioners, this
approach to disclosure under Fed.Rule Crim.Proc. 6(e) is contrary
to prior decisions of this Court indicating that "a civil litigant
must demonstrate a compelling necessity for specified grand jury
materials before disclosure is proper." Brief for Petitioners
16.
We consistently have recognized that the proper functioning of
our grand jury system depends upon the secrecy of grand jury
proceedings.
See, e.g., United States v. Procter & Gamble
Co., supra. [
Footnote 9]
In particular, we have noted several
Page 441 U. S. 219
distinct interests served by safeguarding the confidentiality of
grand jury proceedings. First, if preindictment proceedings were
made public, many prospective witnesses would be hesitant to come
forward voluntarily, knowing that those against whom they testify
would be aware of that testimony. Moreover, witnesses who appeared
before the grand jury would be less likely to testify fully and
frankly, as they would be open to retribution as well as to
inducements. There also would be the risk that those about to be
indicted would flee, or would try to influence individual grand
jurors to vote against indictment. Finally, by preserving the
secrecy of the proceedings, we assure that persons who are accused
but exonerated by the grand jury will not be held up to public
ridicule. [
Footnote 10]
For all of these reasons, courts have been reluctant to lift
unnecessarily the veil of secrecy from the grand jury. At the same
time, it has been recognized that, in some situations, justice may
demand that discrete portions of transcripts be
Page 441 U. S. 220
made available for use in subsequent proceedings.
See, e.g.,
United States v. Socony-Vacuum Oil Co., 310 U.
S. 150,
310 U. S.
233-234 (1940). Indeed, recognition of the occasional
need for litigants to have access to grand jury transcripts led to
the provision in Fed.Rule Crim.Proc. 6(e)(2)(C)(i) that disclosure
of grand jury transcripts may be made "when so directed by a court
preliminarily to or in connection with a judicial proceeding."
[
Footnote 11]
Page 441 U. S. 221
In
United States v. Procter Gamble Co., the Court
sought to accommodate the competing needs for secrecy and
disclosure by ruling that a private party seeking to obtain grand
jury transcripts must demonstrate that "without the transcript a
defense would be greatly prejudiced or that without reference to it
an injustice would be done." 356 U.S. at
356 U. S. 682.
Moreover, the Court required that the showing of need for the
transcripts be made "with particularity" so that "the secrecy of
the proceedings [may] be lifted discretely and limitedly."
Id. at
356 U. S. 683.
Accord, Pittsburgh Plate Glass Co. v. United States,
360 U. S. 395,
360 U. S. 400
(1959).
In
Dennis v. United States, 384 U.
S. 855 (1966), the Court considered a request for
disclosure of grand jury records in quite different circumstances.
It was there held to be an abuse of discretion for a District Court
in a criminal trial to refuse to disclose to the defendants the
grand jury testimony of four witnesses who some years earlier had
appeared before a grand jury investigating activities of the
defendants. The grand jury had completed its investigation, and the
witnesses whose testimony was sought already had testified in
public concerning the same matters. The Court noted that "[n]one of
the reasons traditionally advanced to justify nondisclosure of
grand jury minutes" was significant in those circumstances,
id. at
384 U. S. 872
n. 18, whereas the defendants had shown it to be likely that the
witnesses' testimony at trial was inconsistent with their prior
grand jury testimony.
Page 441 U. S. 222
From
Procter & Gamble and
Dennis emerges
the standard for determining when the traditional secrecy of the
grand jury may be broken: parties seeking grand jury transcripts
under Rule 6(e) must show that the material they seek is needed to
avoid a possible injustice in another judicial proceeding, that the
need for disclosure is greater than the need for continued secrecy,
and that their request is structured to cover only material so
needed. [
Footnote 12] Such a
showing must be made even when the grand jury whose transcripts are
sought has concluded its operations, as it had in
Dennis.
For in considering the effects of disclosure on grand jury
proceedings, the courts must consider not only the immediate
effects upon a particular grand jury, but also the possible effect
upon the functioning of future grand juries. Persons called upon to
testify will consider the likelihood that their testimony may one
day be disclosed to outside parties. Fear of future retribution or
social stigma may act as powerful deterrents to those who would
come forward and aid the grand jury in the performance of its
duties. Concern as to the future consequences of frank and full
testimony is heightened where the witness is an employee of a
company under investigation. Thus, the interests in grand jury
secrecy, although reduced, are not eliminated merely because the
grand jury has ended its activities. [
Footnote 13]
Page 441 U. S. 223
It is clear from
Procter & Gamble and
Dennis that disclosure is appropriate only in those cases
where the need for it outweighs the public interest in secrecy, and
that the burden of demonstrating this balance rests upon the
private party seeking disclosure. It is equally clear that, as the
considerations justifying secrecy become less relevant, a party
asserting a need for grand jury transcripts will have a lesser
burden in showing justification.
Accord, Illinois v.
Sarbaugh, 552 F.2d 768, 774 (CA7),
cert denied sub nom. J.
L. Simmons Co. v. Illinois, 434 U.S. 889 (1977);
U.S.
Industries, Inc. v. United States District Court, 345 F.2d 18,
21 (CA9),
cert. denied, 382 U.S. 814 (1965); 1 C. Wright,
Federal Practice & Procedure § 106, p. 173 (1969). In sum, as
so often is the situation in our jurisprudence, the court's duty in
a case of this kind is to weigh carefully the competing interests
in light of the relevant circumstances and the standards announced
by this Court. And if disclosure is ordered, the court may include
protective limitations on the use of the disclosed material, as did
the District Court in this case. Moreover, we emphasize that a
court called upon to determine whether grand jury transcripts
should be released necessarily is infused with substantial
discretion.
See Pittsburgh Plate Glass Co. v. United States,
supra at
360 U. S.
399.
Applying these principles to the present case, we conclude that
neither the District Court nor the Court of Appeals erred in the
standard by which it assessed the request for disclosure under Rule
6(e). The District Court made clear that the question before it was
whether a particularized need for disclosure outweighed the
interest in continued grand jury secrecy.
See App. 53-55.
Similarly, the Court of Appeals correctly understood that the
standard enunciated in
Procter & Gamble requires a
court to examine the extent of the need for continuing grand jury
secrecy, the need for disclosure, and
Page 441 U. S. 224
the extent to which the request was limited to that material
directly pertinent to the need for disclosure. [
Footnote 14]
III
Petitioners contend, irrespective of the legal standard applied,
that the District Court for the Central District of California was
not the proper court to rule on respondents' motion for disclosure.
Petitioners note that the Court of Appeals and the District Court
both purported to base their decisions in part upon the need for
use of the requested material in the civil antitrust proceedings
pending in Arizona. [
Footnote
15] This determination necessarily involved consideration of
the nature and status of the Arizona proceedings, matters
peculiarly within the competence of the Arizona District Court.
Although the question is an important one, this Court heretofore
has had no occasion to consider which court or courts may direct
disclosure of grand jury minutes under Fed.Rule Crim.Proc. 6(e).
[
Footnote 16] The federal
courts that have addressed the
Page 441 U. S. 225
question generally have said that the request for disclosure of
grand jury minutes under Rule 6(e) must be directed toward the
court under whose auspices the grand jury was empaneled.
See
Illinois v. Sarbaugh, supra at 772-7;
Gibson v. United
States, 131 U.S.App.D.C. 143, 144, 403 F.2d 166, 167 (1968);
Herman Schwabe, Inc. v. United Shoe Machinery Corp., 21
F.R.D. 233, 235 (DC 1957);
accord, 1 Wright,
supra, § 106, p. 174.
But see United States v.
American Oil Co., 264 F. Supp. 93,
95 (ED
Mo.1966). Indeed, those who seek grand jury transcripts have little
choice other than to file a request with the court that supervised
the grand jury, as it is the only court with control over the
transcripts. [
Footnote
17]
Quite apart from practical necessity, the policies underlying
Rule 6(e) dictate that the grand jury's supervisory court
participate in reviewing such requests, as it is in the best
position to determine the continuing need for grand jury secrecy.
Ideally, the judge who supervised the grand jury should review the
request for disclosure, as he will have first-hand knowledge of the
grand jury's activities. But even other judges of the district
where the grand jury sat may be able
Page 441 U. S. 226
to discover facts affecting the need for secrecy more easily
than would judges from elsewhere around the country. The records
are in the custody of the district court, and therefore are readily
available for reference. Moreover, the personnel of that court --
and particularly those of the United States Attorney's office who
worked with the grand jury -- are more likely to be informed about
the grand jury proceedings than those in a district that had no
prior experience with the subject of the request. We conclude,
therefore, that, in general, requests for disclosure of grand jury
transcripts should be directed to the court that supervised the
grand jury's activities.
It does not follow, however, that, in every case, the court in
which the grand jury sat should make the final decision whether a
request for disclosure under Rule 6(e) should be granted. Where, as
in this case, the request is made for use in a case pending in
another district, the judges of the court having custody of the
grand jury transcripts will have no first-hand knowledge of the
litigation in which the transcripts allegedly are needed, and no
practical means by which such knowledge can be obtained. In such a
case, a judge in the district of the grand jury cannot weigh in an
informed manner the need for disclosure against the need for
maintaining grand jury secrecy. Thus, it may well be impossible for
that court to apply the standard required by the decisions of this
Court, reiterated above, for determining whether the veil of
secrecy should be lifted.
See supra at
441 U. S.
221-224.
In the
Electrical Equipment Cases, a federal court
contemplated a similar quandary. Following the convictions of 29
heavy electrical equipment manufacturers for price fixing, about
1,900 private damages suits were filed in 34 Federal Districts
around the country.
See Note, Release of Grand Jury
Minutes in the National Deposition Program of the Electrical
Equipment Cases, 112 U.Pa.L.Rev. 1133 (1964). During one of these
suits, plaintiffs asked the District Court for the Eastern District
of Pennsylvania to disclose portions
Page 441 U. S. 227
of a witness' grand jury testimony so that they could be used to
refresh the witness' memory during a deposition.
Philadelphia
v. Westinghouse Electric Corp., 210 F.
Supp. 486 (ED Pa 1962). The request was directed to Judge
Clary, who had supervised the grand jury and also was in charge of
the deposition. He had no difficulty, therefore, setting forth in
detail in his opinion both the need for secrecy and the need for
disclosure.
Recognizing, however, that the other District Courts in which
related actions were pending might face similar requests for the
grand jury minutes under his control, Judge Clary outlined a
procedure by which parties in the future could put forward such
requests. In the court's words:
"[T]he Grand Jury transcript of any witness deposed in [these
suits], either in this district or in any other district of the
United States in which these cases are pending, should be made
available to the deposition Judge for use in his district. There
may be, and probably will be, many instances during these national
depositions when disclosure may be advisable. . . . The refusal [to
order disclosure in this case] cannot rule out production where
in camera examination by a deposition Judge uncovers
material discrepancy or significant facts which the witness
concealed, or failed to remember, at his deposition. Such
disclosure as is necessary to uncover full and complete facts must
be allowed. If, at the completion of any deposition taken in the
national program, a motion is made for the production of that
witness' Grand Jury testimony, and if the deposition Judge requests
it from this Court for examination
in camera, the
testimony will be immediately made available to him. The deposition
Judge may then contrast the Grand Jury testimony with the
deposition and determine, in his own discretion, whether in the
interest of justice there is compelling need for disclosure."
Id. at 491.
Page 441 U. S. 228
Because Judge Clary in his opinion had discussed with care the
various secrecy concerns as they applied to the transcripts before
him, district courts called upon in the future to rule upon
disclosure motions could weigh these concerns against the need for
disclosure. In this way, the court provided precisely what was
required by the situation: a coordinating of the informed views of
both the civil trial court and the grand jury court concerning the
propriety of disclosing portions of the grand jury minutes. Several
other federal courts, recognizing the need for collaboration, have
devised means by which both the court of the grand jury and the
court of the collateral civil proceeding may participate in the
decision whether transcripts should be released under Rule 6(e).
See In re 1975-2 Grand Jury Investigation, 566 F.2d 1293,
1296 (CA5 1978);
Illinois v. Sarbaugh, 552 F.2d at 773 n.
5;
Baker v. United States Steel Corp., 492 F.2d 1074,
1076-1077 (CA2 1974);
Gibson v. United States, 131
U.S.App.D.C. at 144-145, 403 F.2d at 167-168.
In the present case, the District Court for the Central District
of California was called upon to make an evaluation entirely beyond
its expertise. The District Judge readily conceded that he had no
knowledge of the civil proceedings pending several hundred miles
away in Arizona. App. 58. Nonetheless, he was asked to rule whether
there was a "particularized need" for disclosure of portions of the
grand jury transcript, and whether this need outweighed the need
for continued grand jury secrecy. Generally, we leave it to the
considered discretion of the district court to determine the proper
response to requests for disclosure under Rule 6(e).
See
Pittsburgh Plate Glass Co. v. United States, 360 U.S. at
360 U. S. 399.
We have a duty, however, to guide the exercise of discretion by
district courts, and, when necessary, to overturn discretionary
decisions under Rule 6(e).
See, e.g., Dennis v. United
States, 384 U. S. 855
(1966).
We find that the District Court here abused its discretion in
releasing directly to respondents the grand jury minutes
Page 441 U. S. 229
they requested. Appreciating that it was largely ignorant of the
Arizona civil suits, the court nonetheless made a judgment
concerning the relative needs for secrecy and disclosure. [
Footnote 18] The court based its
decision largely upon the unsupported assertions of counsel during
oral argument before it, supplemented only by the criminal
indictment returned by the grand jury, the civil complaints, and
petitioners' response to a single interrogatory that appeared to be
inconsistent with petitioners'
nolo contendere plea in the
criminal case. Even the court's comparison of the criminal
indictment and the civil complaints did not indicate unambiguously
what, if any, portions of the grand jury transcripts would be
pertinent to the subject of the Arizona actions, as only some of
the same parties were named and only some of the same territory was
covered.
The possibility of an unnecessary breach of grand jury secrecy
in situations such as this is not insignificant. A court more
familiar with the course of the antitrust litigation might have
seen important differences between the allegations of the
indictment and the contours of the conspiracy respondents sought to
prove in their civil actions -- differences indicating that
disclosure would likely be of little value to respondents, save
perhaps as a mechanism for general discovery. Alternatively,
Page 441 U. S. 230
the courts where the civil proceedings were pending might have
considered disclosure at that point in the litigation to be
premature; if there were to be conflicts between petitioners'
statements and their actions in the criminal proceedings, the court
might have preferred to wait until they ripened at depositions, or
even during testimony at trial.
Under these circumstances, the better practice would have been
for the District Court, after making a written evaluation of the
need for continued grand jury secrecy and a determination that the
limited evidence before it showed that disclosure might be
appropriate, to send the requested materials to the court where the
civil cases were pending. [
Footnote 19] The Arizona court, armed with its special
knowledge of the status of the civil actions, then could have
considered the requests for disclosure in light of the California
court's evaluation of the need
Page 441 U. S. 231
for continued grand jury secrecy. In this way, both the need for
continued secrecy and the need for disclosure could have been
evaluated by the courts in the best position to make the respective
evaluations. [
Footnote
20]
We do not suggest, of course, that such a procedure would be
required in every case arising under Rule 6(e). Circumstances that
dictate the need for cooperative action between the courts of
different districts will vary, and procedures to deal with the many
variations are best left to the rulemaking procedures established
by Congress. Undoubtedly there will be cases in which the court to
whom the Rule 6(e) request is directed will be able intelligently,
on the basis of limited knowledge, to decide that disclosure
plainly is inappropriate, or that justice requires immediate
disclosure to the requesting party, without reference of the matter
to any other court. Our decision today therefore is restricted to
situations, such as that presented by this case, in which the
district court having custody of the grand jury records is unlikely
to have dependable knowledge of the status of, and the needs of the
parties in, the civil suit in which the desired transcripts are to
be used.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
[
Footnote 1]
"Transcripts" is used herein to refer to the verbatim recordings
of testimony given before a grand jury.
[
Footnote 2]
Also named as defendants were Continental Oil Co. (an affiliate
of petitioner Douglas Oil); Gulf Oil Co.; Shell Oil Co.; Exxon
Corp.; Mobil Oil Corp.; Union Oil Co. of California; Amoco Oil Co.;
Standard Oil Co. of California; Standard Oil Co. of Indiana; and
Armour Oil Co.
[
Footnote 3]
In addition, the complaint charged that the defendants had tied
the sale of gasoline to the leasing of service stations, had
entered into a concerted refusal to deal with independent gasoline
retailers, had maintained a monopoly over the refinery capacity of
the United States, and had set predatory prices.
[
Footnote 4]
Also named as defendants were Union Oil Co. of California; Amoco
Oil Co.; Standard Oil Co. of Indiana; Shell Oil Co.; Mobil Oil
Corp.; Standard Oil Co. of California; Exxon Corp.; and Diamond
Shamrock.
[
Footnote 5]
In addition, Gas-A-Tron and Coinoco charged that the oil
companies had violated the Robinson-Patman Act, 49 Stat. 1526, 15
U.S.C. §§ 13-13b and 21a, by selling gasoline to affiliated
retailers at prices more favorable than those offered unaffiliated
retailers such as respondents.
[
Footnote 6]
In its response to the interrogatory, petitioner Phillips
stated:
"Since October, 1969, it has been Phillips' policy to refrain
from any conversations or communications with any and all of its
competitors relating in any way to prices except in situations
where Phillips is selling to or buying from a competitor and the
price of the product being bought and sold obviously must be
discussed."
2 Record 6.
[
Footnote 7]
In addition to petitioners, Powerene Oil Co., Fletcher Oil &
Refining Co., Golden Eagle Refining Co., and MacMillan Ring-Free
Oil Co. were named as codefendants. The indictment alleged, in
part, that the defendants and coconspirators had engaged in an
unlawful combination and conspiracy in restraint of trade,
"in violation of Section 1 of the Act of Congress of July 2,
1890, as amended (15 U.S.C. § 1), commonly known as the Sherman
Act. . . . The aforesaid combination and conspiracy has consisted
of a continuing agreement, understanding and concert of action
among the defendants and coconspirators, the substantial terms of
which have been to increase, fix, stabilize and maintain the price
of rebrand gasoline."
App. 126-127.
"Rebrand gasoline" is defined in the indictment to mean
"gasoline sold for resale in service stations under a trademark or
brand name not owned or controlled by an oil refiner."
Id.
at 124. It appears to be undisputed that the gasoline purchased by
respondents from the major oil companies was "rebrand gasoline"
within the meaning of the indictment.
[
Footnote 8]
As an initial matter, respondents argue that petitioners lack
standing to object to the disclosure order, as the only interest in
grand jury secrecy remaining in this case is a public one.
Accord, United States v. American Oil Co., 456 F.2d 1043
(CA3 1972) (per curiam).
Contra, Illinois v. Sarbaugh, 552
F.2d 768 (CA7),
cert. denied sub nom. J. L. Simmons Co. v.
Illinois, 434 U.S. 889 (1977). There can be no question that
there is standing under Art. III for petitioners to object to the
disclosure order, as release of the transcripts to their civil
adversaries could result in a substantial injury to them.
See
Warth v. Seldin, 422 U. S. 490,
422 U. S. 499
(1975). Moreover, the interest petitioners assert is one legally
protected under the Court's rulings concerning grand jury secrecy.
One of the several interests promoted by grand jury secrecy is the
protection of the innocent accused from disclosure of the
accusations made against him before the grand jury.
See
n 10
infra.
Although petitioners in the present case were indicted and pleaded
nolo contendere, under our decisions, they nonetheless are
legally entitled to protection, as there may have been accusations
made for which no indictment was returned.
[
Footnote 9]
Since the 17th century, grand jury proceedings have been closed
to the public, and records of such proceedings have been kept from
the public eye.
See Calkins, Grand Jury Secrecy, 63
Mich.L.Rev. 455, 457 (1965). The rule of grand jury secrecy was
imported into our federal common law, and is an integral part of
our criminal justice system.
See Costello v. United
States, 350 U. S. 359,
350 U. S. 362
(1956);
United States v. Johnson, 319 U.
S. 503,
319 U. S. 513
(1943). Federal Rule Crim. Proc. 6(e) codifies the requirement that
grand jury activities generally be kept secret, by providing:
"A grand juror, an interpreter, a stenographer, an operator of a
recording device, a typist who transcribes recorded testimony, [or]
an attorney for the Government . . . shall not disclose matters
occurring before the grand jury, except as otherwise provided for
in these rules. . . . A knowing violation of rule 6 may be punished
as a contempt of court."
Although the purpose for grand jury secrecy originally was
protection of the criminally accused against an overreaching Crown,
see Calkins, Grand Jury Secrecy,
supra, with
time, it came to be viewed as necessary for the proper functioning
of the grand jury.
See n 10,
infra.
[
Footnote 10]
In
United States v. Procter & Gamble Co.,
356 U. S. 677,
356 U. S.
681-682, n. 6 (1958), we said that the reasons for grand
jury secrecy had been summarized correctly in
United States v.
Rose, 215 F.2d 617, 628-629 (CA3 1954):
"'(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 witness who may
testify before [the] grand jury and later appear at the trial of
those indicted by it; (4) to encourage free and untrammeled
disclosures by 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 11]
Federal Rule Crim. Proc. 6(e) provides in full:
"(e) Secrecy of Proceedings and Disclosure. -- "
"(1) General rule. -- A grand juror, an interpreter, a
stenographer, an operator of a recording device, a typist who
transcribes recorded testimony, an attorney for the Government, or
any person to whom disclosure is made under paragraph(2)(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 imposed on any person except in
accordance with this rule. A knowing violation of rule 6 may be
punished as a contempt of court."
"(2) 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 attorney's duty; and"
"(ii) such government personnel as are deemed necessary by an
attorney for the government 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 disclosed under
subparagraph(A)(ii) of this paragraph shall not utilize that grand
jury material for any purpose other than assisting the attorney for
the government in the performance of such attorney's duty to
enforce Federal criminal law. An attorney for the government shall
promptly provide the district court, before which was impaneled the
grand jury whose material has been so disclosed, with the names of
the persons to whom such disclosure has been made."
"(C) Disclosure otherwise prohibited by this rule of matters
occurring before the grand jury may also be made -- "
"(i) when so directed by a court preliminarily to or in
connection with a judicial proceeding; or"
"(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 because of matters occurring before the grand jury."
"(3) Sealed Indictments. -- The Federal magistrate to whom an
indictment is returned may direct that the indictment be kept
secret until the defendant is in custody or has been released
pending trial. Thereupon the clerk shall seal the indictment and no
person shall disclose the return of the indictment except when
necessary for the issuance and execution of a warrant or
summons."
Although Fed.Rule Crim.Proc. 6(e) was amended in 1977, all
parties agree that the changes do not bear upon the issues in the
present case.
[
Footnote 12]
As noted in
United States v. Procter & Gamble Co.,
356 U.S. at
356 U. S. 683,
the typical showing of particularized need arises when a litigant
seeks to use "the grand jury transcript at the trial to impeach a
witness, to refresh his recollection, to test his credibility and
the like." Such use is necessary to avoid misleading the trier of
fact. Moreover, disclosure can be limited strictly to those
portions of a particular witness' testimony that bear upon some
aspect of his direct testimony at trial.
[
Footnote 13]
The transcripts sought by respondents already had been given to
the target companies in the grand jury investigation. Thus, release
to respondents will not enhance the possibility of retaliatory
action by employers in this case. But the other factors supporting
the presumption of secrecy remain, and must be considered.
[
Footnote 14]
As petitioners point out, the Court of Appeals did say that,
because of the circumstances, "the party seeking disclosure should
not be required to demonstrate a large compelling need.," and that
a "minimal showing of particularized need" would suffice.
Petrol Stops Northwest v United States, 571 F.2d 1127,
1130 (1978). In a different context, these statements could be read
as an unjustified lowering of the standard of proof required by
Procter & Gamble and
Dennis. We cannot say,
however, that the Court of Appeals applied an incorrect standard in
view of the circumstances of this case and the discussion thereof
in the opinion below.
[
Footnote 15]
The District Court indicated that respondents had made out a
"
prima facie" showing that the requested materials were
relevant to Arizona civil proceedings "because of the nature of the
grand jury inquiry with relation to the proceedings here
concerned." App. 58. The Court of Appeals found that respondents
had shown "a particularized need beyond the mere relevance of the
materials [requested]." 571 F.2d at 1130.
[
Footnote 16]
In each of the three cases in which this Court has considered
the applicable standard for disclosure of grand jury transcripts,
the court in which the grand jury was empaneled also was the
location of the litigation giving rise to the request for
disclosure.
See, e.g., Juris.Statement in
United
States v. Procter & Gamble Co., O.T. 1957, No. 51, p. 3.
Indeed, in
Dennis v. United States, 384 U.
S. 855 (1966), and in
Pittsburgh Plate Glass Co. v.
United States, 360 U. S. 395
(1959), the parties requested transcripts for use in the criminal
case to which the grand jury proceedings had been a prologue.
[
Footnote 17]
As we have noted, by virtue of a prior order petitioners have
possession of the transcripts sought by respondents.
See
supra at
441 U. S. 216.
We were informed at argument by counsel for the Government that,
under the terms of that order, the transcripts were to be returned
upon completion of the criminal proceeding in the Central District
of California, and were to be used only for purposes of defending
against the criminal charges in that case.
See Tr. of Oral
Arg. 35-36. It appears, therefore, that, if the District Court in
Arizona had the authority to order disclosure by the petitioners,
this power was derived from petitioners' unlawful retention of the
transcripts. Indeed, as the Government suggests, it is questionable
whether the Arizona District Court properly could have ordered
production of the documents in direct violation of the California
District Court order.
[
Footnote 18]
Indeed, the court indicated that it was equally ignorant of the
circumstances surrounding the grand jury proceedings.
See
App. 53. Thus, it appears that this particular judge had no
knowledge whatsoever of the facts underlying either the criminal or
civil proceedings, and so was in no position to consider the
relationship between the two.
Contrary to the statements in the dissenting opinion,
post at
441 U. S. 235
n. 3, and
441 U. S. 236
n. 8, we do not "admonish [the] trial judge" by concluding that
there was an abuse of discretion. We recognize that the proper
procedure in a case of this kind had not been established in the
Ninth Circuit or by this Court at the time of the trial court's
ruling. Thus, the trial court -- whose lot it was to act on
respondents' request had neither authoritative guidance as to the
proper procedure to be followed nor familiarity with the civil or
criminal proceedings. One purpose of our decision today is to
afford such guidance in cases of this kind.
[
Footnote 19]
Apparently recognizing his difficult position, the District
Judge in the present case at one point offered,
"through an overabundance of precaution . . . to telephone [the
judges presiding over the Arizona proceedings] to see if they have
any objection"
to the release to respondents of the grand jury transcripts.
Contrary to the suggestion in the dissenting opinion,
see
post at
441 U. S. 235
n. 3, this offer was no suitable substitute for referring the
matter to the Arizona District Court: an oral request made over the
telephone to a busy District Judge cannot be considered with the
same care and understanding that formal motions properly receive.
Under the suggested informal procedure, the Arizona District Court
would have been required to evaluate the need for disclosure
without having either access to the grand jury materials or
first-hand knowledge of what they contained.
The dissenting opinion argues that petitioners' failure to
demand reference to the Arizona court justified the District
Court's granting respondents' discovery request regardless of its
implications.
See ibid. With respect to grand jury
secrecy, a matter of great sensitivity impinging upon the public
interest, courts cannot be free to act merely because the parties
have failed to specify precisely the relief to which they are
entitled. Such
carte blanche is particularly inappropriate
in the present case, where petitioners argued before the District
Court that it lacked the expertise required to make a fair
determination of the need for disclosure. The issue upon which we
rule today, therefore, was presented to the District Court by
petitioners.
[
Footnote 20]
Because the District Court for the Central District of
California did not have the knowledge necessary to make an
evaluation of the relative needs for secrecy and disclosure, we
express no view whether on these facts a court with such knowledge
properly could have ordered release of the requested
transcripts.
MR. JUSTICE REHNQUIST, concurring.
I join the Court's opinion because I agree with its conclusions
on the merits of the issue of the availability of the grand jury
transcripts to these private treble damages action plaintiffs. I do
not feel that the Court can leave
Page 441 U. S. 232
entirely unnoticed, however, the total absence of any reference
by either of the parties or by the Court of Appeals to the basis
upon which that court took jurisdiction of the petitioners'
"appeal" from the order of the District Court granting access to
the grand jury minutes. At the same time, I am handicapped in
formulating a view of my own on the subject, because of the absence
of any assistance from the parties or any consideration of the
question by the Court of Appeals or by this Court. But in order for
us to have jurisdiction over the case, the case must be properly
"in" the Court of Appeals for purposes of 28 U.S.C. § 1254.
Liberty Mutual Life Ins Co. v. Wetzel, 424 U.
S. 737 (1976). And it may well be that the availability
to the losing party of a right to appeal an order such as this may
be a factor in deciding whether the proceedings should ultimately
be treated as part of the discovery in the court in which the
treble damages action is pending, or as a separate proceeding in
the court which conducted the grand jury proceeding.
This case is not like
United States v. Procter & Gamble
Co., 356 U. S. 677
(1958). In
Procter & Gamble, the defendants in a civil
action brought by the Government sought discovery of grand jury
minutes pursuant to Fed.Rule Civ Proc 34.
* The District
Court granted discovery, and the Government deliberately took a
default in order to obtain review of the discovery ruling in the
course of its appeal from a "final judgment" of the District Court
pursuant to 15 U.S.C. § 29. 356 U.S. at
356 U. S. 680.
But absent such extraordinary circumstances, our cases and those of
the Courts of Appeals hold that review of the granting or denial of
discovery is not immediately reviewable, except perhaps by way of
mandamus for gross abuse of discretion on the part of the trial
court.
See, e.g., Cobbledick v. United States,
309 U. S. 323
(1940).
Page 441 U. S. 233
Two Courts of Appeals have taken different approaches to the
issue of appealability of orders regarding disclosure of grand jury
minutes.
Compare Baker v. United States Steel Corp., 492
F.2d 1074 (CA2 1974),
with Illinois v. Sarbaugh, 552 F.2d
768 (CA7),
cert. denied sub nom. J. L Simmons Co. v.
Illinois, 434 U.S. 889 (1977). Since all that is presented to
us in this case is an effort to obtain appellate review of an order
by the court having custody of the grand jury transcript directing
that the transcript be turned over to a party applying for it,
different factual permutations which might raise and require
different analysis in terms of appealability need not be decided.
For example, I am not at all sure that an order of the grand jury
court transferring the transcripts to the civil court, as
contemplated by the Court's decision,
ante at
441 U. S. 230,
would be appealable.
See Baker v. United States Steel Corp.,
supra. Nor am I certain that I would agree with the analysis
of the Court of Appeals for the Seventh Circuit in
Illinois v.
Sarbaugh, supra, as to the authority under which the district
court exercises jurisdiction in this type of case. Nonetheless, I
believe that, since an order such as is involved in this case
disposes of all of the contentions of the parties and terminates a
separate proceeding pending before the grand jury court, it is
therefore appealable as a "final decision" under 28 U.S.C. § 1291.
See Illinois v. Sarbaugh, supra at 773. If I am correct in
this conclusion, this case was "in the court of appeals" from the
time that petitioners filed their notice of appeal from the order
of the District Court, and we may therefore exercise our certiorari
jurisdiction granted by 28 U.S.C. § 1254. Satisfied at least for
now with this analysis of the jurisdictional predicate to the case,
I join the Court's opinion on the merits.
* Only one defendant moved for discovery of the minutes under
Fed.Rule Crim.Proc. 6(e). 356 U.S. at
356 U. S. 678
n. 1. The Court's discussion of the merits of the defendants'
claims was based on Fed.Rule Civ.Proc. 34. 356 U.S. at
356 U. S.
681.
MR. JUSTICE STEVENS, with whom THE CHIEF JUSTICE and MR. JUSTICE
STEWART join, dissenting.
Although I join all but the last nine paragraphs of the Court's
opinion, I cannot agree with the conclusion that the
Page 441 U. S. 234
District Judge sitting in the Central District of California
should not have granted access to the grand jury transcripts
subject to the conditions stated in his order. More fundamentally,
I do not share the Court's readiness to review the District Judge's
exercise of his broad discretion in this matter in the absence of
any allegation of egregious abuse on his part and in the face of
the confirmation of his conclusion by the Court of Appeals.
[
Footnote 2/1]
Before he acted, the District Judge allowed petitioners to
participate as real parties in interest in order to explain their
opposition to disclosure of the transcripts, [
Footnote 2/2] he offered to communicate with the
District Judges in Arizona, [
Footnote
2/3] he obtained
Page 441 U. S. 235
the views of the Antitrust Division of the Department of
Justice, [
Footnote 2/4] and he
compared the charges in the indictment with the allegations in the
complaint for treble damages. [
Footnote
2/5] Everything called to his attention by respondents
supported the conclusion that the grand jury transcripts would be
highly relevant in the civil litigation, [
Footnote 2/6] and petitioners not only made no concrete
showing of irrelevance in rebuttal, [
Footnote 2/7] but also passed
Page 441 U. S. 236
up two procedural opportunities to make such a showing.
[
Footnote 2/8] Since the
transcripts had already been released to the defendants, no
interest in protecting witnesses from possible retaliation
remained. The Government foresaw no other secrecy problems.
Had I been the District Judge presented with respondents'
request, I would have exercised my discretion in the same way he
did. In light of today's holding, it now appears that I would have
been wrong. But I do not find the Court's view on the merits of the
decision below nearly as troubling as it expansive view of its
appellate function in this area, in which trial judges usually have
broad latitude. [
Footnote 2/9]
Whatever its validity, the decision of the District Judge as
affirmed, by the Court
Page 441 U. S. 237
of Appeals was surely not very wide of the mark. Accordingly,
for the Court to overturn that decision is to move decisively in
the direction of equating an "abuse of discretion" with an exercise
of discretion with which it disagrees. I cannot join in this
rearrangement of the respective roles of trial and appellate
courts.
[
Footnote 2/1]
The Court of Appeals affirmed the determination of the District
Judge on the basis of the record before him showing the
similarities between the indictment to which petitioners had
pleaded no contest and the complaint in the treble damages case.
But the Court of Appeals went even further. On the basis of
additional submissions by the parties on appeal, the Court of
Appeals made a further finding of relevance premised on
discrepancies between the bill of particulars filed by the
Government in the criminal case and recent deposition testimony of
petitioners' employees in the civil case.
Petrol Stops
Northwest v. United States, 571 F.2d 1127, 1130-1131.
Accordingly, the decision of the Court second-guesses not only the
District Judge's determination as affirmed by the Court of Appeals
on its own terms, but also a second
de novo determination
by the Court of Appeals based on additional information.
[
Footnote 2/2]
Because the grand jury transcripts were in the possession of the
United States, it was the nominal respondent in the action seeking
disclosure of those transcripts. Although the Government did not
oppose release of the transcripts, it did encourage the District
Judge to allow petitioners to participate in the hearing as the
"real parties in interest," and the court acceded to the
Government's suggestion. App. 52, 90-100.
[
Footnote 2/3]
Petitioners consistently argued in the District Court that
respondents' motion for production of the transcripts under
Fed.Rule Crim.Proc. 6(e) should be denied outright, and respondents
forced to pursue the request in the Arizona courts by way of
motions to compel discovery under Fed.Rule Civ.Proc. 37. In
response to petitioners' argument that the two District Judges in
Arizona were the only appropriate recipients of respondents'
disclosure requests, the District Judge made the following
statement:
"I would be very glad through an overabundance of precaution, if
you think it would be appropriate, to telephone Judge Walsh and
Judge Frey to see if they have any objection, but it doesn't seem
to me that I should relegate these people to make their application
to those judges when they have taken what I think is a proper step
in coming here."
App 56.
Instead of responding that it would be "appropriate" for the
judge to communicate with the judges in Arizona, counsel for
petitioners once again reiterated the argument -- implicitly
rejected by the Court in today's decision -- that the District
Judge should simply have denied the Criminal Rule 6(e) request and
relegated the entire matter to the Arizona judges for decision
under Civil Rule 37.
See ante at
441 U. S. 226.
The fact that petitioners relied exclusively on this admittedly
invalid objection to the production request should bar them from
making the new argument in this Court that the District Judge
should have transferred the Rule 6(e) motion to the Arizona courts.
Even if that argument is cognizable here, I find inexplicable the
Court's determination that the District Judge abused his discretion
because the accommodation he suggested
sua sponte --
orally communicating with the judges in Arizona about the Rule 6(e)
motion and announcing their collective decision himself -- is not
the slightly different one that a majority of this Court would have
chosen -- formally transferring the Rule 6(e) motion to the Arizona
judges and forcing them to announce the collective decisions.
See ante at
441 U. S.
230-231.
[
Footnote 2/4]
See App. 52, 61.
[
Footnote 2/5]
See id. at 57-59, 118-167.
See also 571 F.2d
at 1131.
[
Footnote 2/6]
The District Judge found as follows:
"As far as relevance, I would think that there is a
prima
facie relevance because of the nature of the grand jury
inquiry with relation to the proceedings here concerned."
App. 58.
[
Footnote 2/7]
According to their counsel, the "main thrust" of petitioners'
argument before the District Judge was not that the transcripts are
irrelevant to the treble damages suit. Instead, petitioners'
primary reliance was on the incorrect argument,
see ante
at
441 U. S. 226,
that respondents should have presented their request to the Arizona
judges in the first instance. App. 55-56. When they did reach the
subject of relevance, petitioners' comments were tentative, at
best.
See, e.g., id. at 57 (emphasis added):
"MR. THURSTON [counsel for Douglas Oil]: . . . It is possible
that there were -- not possible. It is the fact that those grand
jury proceedings concerned a number of different levels of sale,
both at the wholesale and retail levels, whereas the proceedings in
Arizona may not involve such a broad territory."
[
Footnote 2/8]
In addition to accepting the District Judge's offer to consult
with the Arizona judges on the subject of relevance,
see
441
U.S. 211fn2/3|>n. 3,
supra, petitioners could have
requested that the District Judge view the transcripts
in
camera to test their relevance.
See Dennis v. United
States, 384 U. S. 855,
384 U. S. 874.
In this discretionary area, it is particularly harsh to admonish a
trial judge for failing to take steps that even the parties have
not suggested should be taken.
[
Footnote 2/9]
Although the Court recognizes that it is customary for Rule 6(e)
determinations to be left to the "considered discretion" of the
lower courts,
ante at
441 U. S. 228,
citing
Pittsburgh Plate Glass Co. v. United States,
360 U. S. 395,
360 U. S. 399,
it finds support in
Dennis v. United States, supra, for
its rather exacting review of the exercise of that discretion. But
in
Dennis, the District Court had withheld grand jury
testimony from a criminal defendant, and had thereby run afoul of
the view "that disclosure, rather than suppression, of relevant
materials ordinarily promotes the proper administration of
criminal justice." 384 U.S. at
384 U. S.
870-871 (emphasis added), citing
Jencks v. United
States, 353 U. S. 657.
See also Brady v. Maryland, 373 U. S.
83. Because the permissible scope of discretion in this
civil litigation is not qualified by any special policy analogous
to the one favoring disclosure in
Dennis, I find little
support in that case for the result reached here.