The opinion of the court was delivered by: Robson, Chief Judge.
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
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
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
Respondents, the corporate defendants in the civil antitrust
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