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IN RE CEMENT-CONCRETE BLOCK

October 2, 1974

IN RE CEMENT-CONCRETE BLOCK, CHICAGO AREA, GRAND JURY PROCEEDINGS.


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

MEMORANDUM AND ORDER

This matter is before the court pursuant to Rule 6(e), F.R.Crim.P., and Local Criminal Rule 1.04(e) on the petition of the plaintiffs in State of Illinois, et al. v. Ampress Brick Company, Inc., et al., 73 C 2427 (N.D.Ill., Bauer, J.), seeking access to grand jury transcripts in the possession of the Antitrust Division of the Department of Justice. For the reasons set forth below, the petition shall be granted.

In 1971 and 1972, several federal grand juries impanelled in this district conducted an investigation into possible violations of the antitrust laws in the Chicago area cement-concrete block industry. On April 19, 1973, the April 1973 Grand Jury returned indictments. See United States v. Ampress Brick Company, Inc., et al., 73 CR 312 (N.D. Ill. Bauer, J.). Subsequently, all the defendants named in these indictments pleaded nolo contendere to the charges with the exception of Chicago Block Co., Inc. which was dismissed from the criminal case on the government's motion. All of the grand juries which participated in this investigation have been discharged, and resulting federal criminal and civil cases have been completed.

During the course of the criminal proceedings, some of the corporate defendants, but not all, elected to have their counsel inspect the grand jury transcripts of their coporate personnel's testimony pursuant to Rule 16(a)(3), F.R. Crim.P., and Local Criminal Rule 2.04(e). At no time did any defendant or his counsel examine the testimony of another defendant's personnel nor did any defendant or his counsel request or receive copies of grand jury transcripts.

On September 18, 1973, the petitioners, the State of Illinois and numerous agencies and political subdivisions thereof, filed a civil treble damage antitrust suit charging certain defendants in the prior criminal case with participation in an alleged price-fixing conspiracy. State of Illinois, et al. v. Ampress Brick Company, Inc., et al., supra. In connection with the civil case, the petitioners have requested this court to direct the Department of Justice "to produce for inspection, all transcripts of grand jury testimony which were made available to defendants in United States v. Ampress Brick Company, Inc., et al., 73 CR 312." Pet. for Production of Grand Jury Transcripts, 1.

The grounds for the petition are:

  1) that the disclosures of the transcripts will
  not invade the secrecy of the grand jury in that
  the documents have already been inspected by the
  defendants;
  2) that the transcripts are material and relevant
  to the pending civil antitrust action and their
  disclosure will further the efficient
  administration of justice; and
  3) that it would be inequitable and adverse to
  the principles of federal discovery to allow one
  party access to a government document and not the
  other.

Respondents, the corporate defendants in the civil antitrust suit, contend:

  1) that the petitioners have failed to
  demonstrate a "compelling necessity" for
  disclosure as required by the Supreme Court in
  United States v. Procter & Gamble, 356 U.S. 677,
  78 S.Ct. 983, 2 L.Ed.2d 1077 (1958); and
  2) that the secrecy of the grand jury proceedings
  has not been breached.

The government has no objection to the disclosure of those transcripts which were previously inspected by the defendants in the criminal case.

This court recognizes, as it must, the "long established policy that maintains the secrecy of grand jury proceedings in the federal courts." United States v. Procter & Gamble, supra, 356 U.S., at 681, 78 S.Ct. at 986. But the policy of secrecy is not absolute and cannot be applied blindly. The Supreme Court has recognized that: "Grand jury testimony is ordinarily confidential. . . . But after the grand jury's functions are ended, disclosure is wholly proper where the ends ...


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