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BD. OF ED., ETC. v. ADMIRAL HEATING

March 18, 1981

THE BOARD OF EDUCATION OF EVANSTON TOWNSHIP HIGH SCHOOL DISTRICT NO. 202, COOK COUNTY, ILLINOIS, ET AL., PLAINTIFFS,
v.
ADMIRAL HEATING AND VENTILATION, INC., AN ILLINOIS CORPORATION, ET AL., DEFENDANTS. BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT NO. 205, COOK COUNTY, ILLINOIS, ET AL., PLAINTIFFS, V. BORG, INC., ET AL., DEFENDANTS. THE STATE OF ILLINOIS ET AL., PLAINTIFFS, V. BORG, INC., ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Plaintiffs in these three consolidated*fn1 class actions charge 22 piping construction companies and 36 individuals with bid-rigging, price fixing and job allocation in the Chicago area from 1956 until 1977 in violation of the Sherman Act. Plaintiffs have moved for reconsideration of Magistrate Cooley's November 20, 1980 order denying plaintiffs' motion to compel discovery. For the reasons stated in this memorandum opinion and order, both plaintiffs' motion for reconsideration and their motion to compel are denied.

Facts

These civil actions stem from claims related to those in three criminal cases*fn2 in which a federal grand jury indicted numerous sheetmetal and piping construction companies and certain of their corporate officers for violations of Section 1 of the Sherman Act. Plaintiffs have made three currently-disputed document requests (the "Requests" covering the "grand jury materials") in these civil actions:

  Request No. 6: "Copies of the grand jury
  transcript in United States v. Borg, Inc., . . .
  given to or in the possession of company for any
  purposes."
  Request No. 7: "Copies of pre-sentencing
  memoranda tendered to the court in United States v.
  Borg, Inc., . . . ."

At about the same time plaintiffs also joined the State of Illinois (the "State") in its action before Chief Judge Parsons*fn3 seeking access to the following grand jury materials in possession of the Department of Justice Antitrust Division:

  the transcript of the proceeding before the
  August, 1977 grand jury which returned
  indictments in 79 CR 66 and 79 CR 67; [and] all
  documents in possession of the Antitrust Division
  received pursuant to grand jury subpoena or by
  voluntary disclosure; [and] all presentencing
  memoranda and other documents and
  materials. . . .

When defendants refused to comply with the Requests, plaintiffs filed a motion before Magistrate Cooley to compel discovery. On September 2, 1980 Magistrate Cooley ruled in all matters before him other than the Requests. As to those he "reserved ruling . . . pending Judge Parson's decision on motion regarding same subject matter."*fn4 Plaintiffs renewed their motion to compel discovery of the grand jury materials in October 1980, and on November 20, 1980 Magistrate Cooley denied that motion "without prejudice to plaintiffs renewing motion after Chief Judge Parsons' decision is issued on motion regarding same subject matter." Plaintiffs then moved this Court to reconsider Magistrate Cooley's order denying discovery.

On January 8, 1981, while this motion was still being briefed by the parties, Chief Judge Parsons denied the petition before him for access to the grand jury materials. He concluded that neither Section 4F(b) of the Clayton Act nor Fed.R.Crim.P. ("Rule") 6(e) mandates release of the grand jury materials to the State and that petitioners (plaintiffs in this action, as well as the State) had failed to establish a "particularized need" for those materials, a prerequisite to authorization of their release. United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958).

Plaintiffs' motion became fully briefed less than one month after Chief Judge Parsons issued his decision. In the interest of judicial economy and to avoid further delay, this Court will rule on the motion on the merits rather than re-referring it to the Magistrate for consideration.

  1.  Plaintiffs' Document Request No. 3: Documents Submitted
      to the Grand Jury

It is a truism that the effectiveness of grand jury proceedings is in large part dependent upon their secrecy. Witnesses are encouraged to testify freely by the promise that their testimony will be confidential. Grand jury proceedings are ex parte in nature. There is "no right to counsel, no right to confrontation, no right to cross examine or to introduce evidence in rebuttal and ordinarily no requirement that the evidence introduced be only such as would be admissible upon ...


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