United States v. Procter & Gamble Company/Concurrence Whittaker

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 ture 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 wree 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 probnably 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 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 hearingUpon 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? 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.

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 being returned; (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; and (4) that disclosure would not in the circumstances violate the traditional reasons for safeguarding the secrecy of grand jury proceedings.

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.' 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, 70 S.Ct. 177, 94 L.Ed. 150; United States v. Oregon State Medical Society, 343 U.S. 326, 72 S.Ct. 690, 96 L.Ed. 978.

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, 15 U.S.C.A. § 30, 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 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, 233-234, 60 S.Ct. 811, 849; 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.