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COMMONWEALTH EDISON CO. v. ALLIS-CHALMERS MFG. CO.

October 30, 1962

COMMONWEALTH EDISON COMPANY ET AL., PLAINTIFFS,
v.
ALLIS-CHALMERS MANUFACTURING COMPANY ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robson, District Judge.

On October 8, 1962, I-T-E Circuit Breaker Company*fn1 moved for an order of the Court that it need not produce a copy of each of the documents described in paragraph 3(a) of Pre-Trial Order No. 4, (entered September 26, 1962) i.e., documents

  "`produced by such defendant before any Grand Jury in
  the Eastern District of Pennsylvania in the course of
  investigations leading to the return of the
  indictments in that Court in 1960' and lists or other
  identifying descriptions or subpoenas of such
  documents referred to in paragraph 3(h) of Pre-Trial
  Order No. 4."

Paragraph 3(h) covers:

    "All existing lists or other identifying
  descriptions, prepared by any defendant of documents
  furnished to any officer or agency of the United
  States or of any state or municipal government in
  connection with any legislative, administrative or
  judicial investigation, hearing or proceeding
  involving the pricing or marketing of the product
  defined in the complaint and copies of each subpoena
  and other written request

  pursuant to which such documents were furnished."

The motion is stated to be filed pursuant to paragraph 8 of Pre-Trial Order No. 4 which provides that "Unless otherwise ordered by the District Court for the Northern District of Illinois, defendants shall produce copies of the documents enumerated * * * at the following places and on the following dates: * *"

The basis of the motion is that such an order violates the basic policy calling for the secrecy of grand jury proceedings.*fn2

Movant suggests alternative possible interpretations of Pre-Trial Order No. 4, such as requiring production of the specified documents, failure to comply with which would result in the lifting of the stay and the possible imposition of sanctions or that while there be no requirement to produce, there would be a lifting of the stay if production were not made. Because of its doubt as to the proper interpretation of the order, I-T-E seeks in the alternative an order that I-T-E need not now place all its grand jury materials, as such, in the central depository, or, alternatively, enter a finding that Pre-Trial Order No. 4 does not compel it to produce all its grand jury materials, as such without its consent.

It is pointed out by movant that Pre-Trial Order No. 4 was the product of a meeting in the District of Columbia on September 21, 1962 attended by certain members of the judges' committee, lead counsel of plaintiffs and certain defense counsel with nation-wide responsibilities, including counsel for I-T-E. It is of significance that the initial recommendation for the deposit of documents was made by a substantial number of defendants.

I-T-E contends that required production of grand jury documents at this time would violate the policy of grand jury secrecy. (Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959); United States v. Procter & Gamble Co., 356 U.S. 677, 7 S.Ct. 983, 2 L.Ed.2d 1077 (1958)). The documents here encompassed have been held not subject to discovery by subpoena. (In re Application of the State of California, 195 F. Supp. 37 (D.C.Pa., 1961); City of Philadelphia v. Westinghouse Electric Corp., (No. 29810, E.D.Pa., 11/9/61); In re Grand Jury Proceedings, 29 F.R.D. 151 (D.C.Pa., 1961).) No "compelling necessity" has been shown by the plaintiffs for the disclosure. Neither the voluntary production by other defendants, nor the unprecedented number of related antitrust cases justifies, it maintains, the ignoring of well-established principles of law.

It is plaintiffs' position that the category of "grand jury documents" was inserted in Pre-Trial Order No. 4 as a "shorthand description" of documents which plaintiffs should have in connection with the National Deposition Program. They contend that Pre-Trial Order No. 4 does not call for disclosure of matters occurring before the grand jury proscribed by Rule 6(e)*fn3 of the Federal Rules of Criminal Procedure.

Nor, plaintiffs contend, does the order call for the actual documents submitted to the grand jury as in Application of the State of California, 195 F. Supp. 37 (D.C. Pa., 1961) and In re Grand Jury Proceedings, 29 F.R.D. 151 (D.C.Pa., 1961), nor attempt to elicit testimony given before the grand jury as in Arlington Glass Co. v. Pittsburgh Plate Glass Co., 24 F.R.D. 50 (D.C.N.D.Ill., 1959). Even if the documents be deemed grand jury proceedings, they are not necessarily "sacrosanct" and that the policy of secrecy will yield to other considerations. (United States v. Procter & Gamble Co., 356 U.S. 677, 7 S.Ct. 983, 2 L.Ed.2d 1077 (1958); United States v. Smith, 22 F.R.D. 482 (D.C.N.D.Ill., 1958); United States v. Ben Grunstein & Sons Co., 137 F. Supp. 197 (D.C.N.J., 1955); In re Hearings Before Committee on Banking and Currency, United States Senate, 19 F.R.D. 410 (D.C.N.D.Ill., 1956); United States v. Interstate Dress Carriers, Inc., 280 F.2d 52 (C.A.2, 1960)).

The legal principles pertaining to the disclosure of grand jury proceedings are fairly well established. Fundamentally, it is established that the secrecy of the proceedings must not be broken absent compelling necessity.*fn4 The burden is on the movant to show particularized need*fn5 or that the ends of justice*fn6 require the disclosure of grand jury minutes which consideration outweighs the policy of secrecy. The revealing of the proceedings lies in the court's discretion.*fn7 When the document sought is sought for itself independently rather than because it was displayed to the grand jury, there is no bar of secrecy.*fn8

It is the Court's considered opinion now, as it was at the time of the entry of Pre-Trial Order No. 4 that the "ends of justice" clearly warrant the directive that copies and lists of documents submitted to the grand jury be placed in the depository by defendants. The very magnitude alone of this related litigation, in number of causes, geographic scope, and diversity, cries out for all possible simplification and unification of procedure wherever it can be devised. As Chief Judge Thomas J. Clary stated in City of Philadelphia v. Westinghouse Electric Corporation et al., decided October 23, 1962: "The unique nature of these cases and this program of discovery must be given considerable weight."

There was held in the District of Columbia a committee meeting and hearing with lead counsel for plaintiffs and defendants at which the advisability, justification, and the method of deposit were fully and carefully considered, and at which movant was represented. No substantial objection is now raised which has not heretofore been presented and studied. ...


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