United States District Court, Northern District of Illinois, E. D
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
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
ends of justice require it." United States v. Socony-Vacuum
Oil Co., 310 U.S. 150, 233, 60 S.Ct. 811, 849, 84 L.Ed. 1129
In considering applications for disclosure of grand jury
transcripts the court's task is to scrutinize the request
against the reasons for the rule of secrecy. These reasons
"(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 witnesses 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 the 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." United States v.
Amazon Industrial Chemical Corp., 55 F.2d 254,
261 (5 Cir. 1931).
These reasons have been quoted with approval by the Supreme
Court. See, e. g., United States v. Procter & Gamble, supra,
256 U.S. at 681 n. 6, 78 S.Ct. 983.
Applying these policy reasons to the facts of this case, it
is apparent that the first three reasons are no longer
applicable in that the grand jury proceedings and all criminal
proceedings arising therefrom have been completed. United
States v. Scott Paper Company, 254 F. Supp. 759 (W.D.Mich.
1966). The fifth policy reason is no longer relevant because
indictments were returned against all the corporate
respondents herein. U.S. Industries, Inc. v. United States
District Court, 345 F.2d 18 (9th Cir. 1965). The only
remaining basis for requiring the continued secrecy of the
grand jury transcripts is the fourth, the need to encourage
witnesses to testify without the fear of retaliation.
This reason has special relevancy in antitrust suits where
witnesses are often employees or even officers of potential
defendants. That factor, however, has been partially vitiated
because the repondents previously inspected the grand jury
transcripts of their employees during the course of the prior
criminal proceeding. Any danger of recriminations by these
employers would have been effected by the initial disclosure
and could not be increased by subsequent disclosure of the
same material. There remains, of course, the possibility of
retaliation from sources other than the witnesses' employers.
This court is of the opinion that this danger may be obviated
by limiting the disclosure to the attorneys of record in State
of Illinois, et al. v. Ampress Brick Company, Inc., et al., 73
C 2427, for use in that litigation only for the purposes of
impeachment, refreshing the witness' recollection and testing
The foregoing analysis fully comports with the Supreme
Court's reasoning in United States v. Procter & Gamble,
supra. There, the defendants in a civil antitrust suit brought
by the government moved under Rule 34, F.R.Civ.P., for the
disclosure of the entire transcript of the grand jury which had
investigated the case for possible criminal action. The court
held that the defendants failed to establish a "compelling
necessity" for such wholesale disclosure sufficient to overcome
the long standing policy of secrecy.
One of the considerations that weighed heavily with the
Supreme Court was that witnesses in an antitrust suit may be
employees or officers of potential defendants, or their
customers, competitors or suppliers, and that such witnesses
would be subject to retaliation if their testimony was
disclosed. By contrast, the danger of reprisals in the instant
case is remote and consequently the "compelling necessity"
be established is proportionately less. Once the reasons for
the rule of secrecy lose their relevancy, there is no
compelling reason to immunize a witness' prior testimony
before the grand jury from later scrutiny. Allen v. United
States, 129 U.S.App.D.C. 61, 390 F.2d 476 (1968).
The transcripts sought by the petitioners are material and
relevant to the unlawful price-fixing conspiracy alleged in
the civil antitrust action. The corporate defendants in that
suit have had the opportunity to inspect and analyze those
transcripts containing the testimony of their employees. It
seems to the court highly inequitable and adverse to the
principles of federal discovery to allow the defendants in a
civil suit access to grand jury transcripts but not the
plaintiffs. It is particularly inequitable when the policy
reasons supporting the rule of secrecy have been vitiated by
a prior disclosure. U.S. Industries, Inc. v. United States
District Court, supra.
Therefore, it is the opinion of the court that the ends of
justice would be served by the disclosure to the petitioners
of those grand jury transcripts previously disclosed to the
respondents during the course of the prior criminal
proceeding. The disclosure shall be limited to the attorneys
of record in the civil suit for use in that litigation only.
Further, the transcripts shall be made available to the
attorneys for all the defendants in the civil suit.
The initial disclosure shall be made at the Midwest Office
of the Antitrust Division of the Justice Department. The
parties are directed to prepare a list identifying each
transcript they desire and to certify to this court that these
transcripts are relevant and germane to the civil antitrust
suit. The parties are further directed to submit to this court
a protective order incorporating the restrictions imposed by
this memorandum. Until such time as this court shall approve
a protective order, all transcripts shall remain in the
custody of the Antitrust Division.
It is therefore ordered that the petition for production of
grand jury transcripts shall be, and the same is hereby,
granted in accordance with the conditions imposed by this
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