United States District Court, Northern District of Illinois, E.D
March 18, 1981
THE BOARD OF EDUCATION OF EVANSTON TOWNSHIP HIGH SCHOOL DISTRICT NO. 202, COOK COUNTY, ILLINOIS, ET AL., PLAINTIFFS,
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.
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. 3: "All documents submitted by the
company to the Federal Grand Jury which returned
the indictment in United States v. Borg,
Inc., . . . and (a) each subpoena or other written
request pursuant to which documents were furnished;
(b) all lists, memoranda and other documents
submitted by the company in lieu of documents
thus requested; (c) all documents submitted to
the grand jury listing documents as to which any
privilege was claimed, and any information with
respect thereto called for in such subpoena or
other reasonable request, and all documents
identifying or describing such documents."
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
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
seeking access to the following grand jury
materials in possession of the Department of Justice Antitrust
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
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
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 a
trial." United States v. Scully, 225 F.2d 113
, 116 (2d Cir.
1955), cert. denied, 350 U.S. 897
, 76 S.Ct. 156
, 100 L.Ed. 788
Failure to protect the confidentiality of the proceedings
could thus result in the disclosure of information either
or of a damaging nature without affording the "injured
parties" proper due process. See generally the Procter & Gamble
case and Douglas Oil Co. v. Petrol Stops Northwest,
441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). Nor do those
considerations diminish in importance once the grand jury is
dismissed and any trial completed, a concept confirmed by the
fact that Rule 6(e)'s prohibition on disclosure of grand jury
"proceedings" without court authorization is unlimited in time.
Request No. 3 encompasses all documents in defendants'
possession that had been submitted to the grand jury, the
subpoenas for such documents, documents submitted in lieu of
the documents requested by the grand jury and any documents
submitted asserting a privilege. Plaintiffs urge that the
principle of confidentiality does not extend to that request
1. Plaintiffs ask only for materials now in
defendants' possession and not in the possession
of either the grand jury itself or the Antitrust
2. All requested documents existed prior to the
grand jury proceedings and were not a product of
those proceedings. They should therefore not be
insulated from discovery merely because the grand
jury reviewed them.
3. By describing the materials as "grand jury
materials" plaintiffs are "shortcutting"
discovery — taking advantage of the grand jury's
narrowing of requests to pertinent items — and
thereby saving substantial expense that would be
incurred should plaintiffs be forced to "reinvent
4. In his order denying plaintiffs access to
the materials (to the extent they were in the
possession of the Antitrust Division), Judge
Parsons expressly recognized the propriety of
obtaining such access through civil discovery
Plaintiffs' position has some limited support in the
See Golden Quality Ice Cream Co., Inc. v. Deerfield
Specialty Papers, Inc., 87 F.R.D. 53 (E.D.Pa. 1980); In re
Cement-Concrete Block Chicago Area Grand Jury Proceedings,
1974-1 Trade Cases ¶ 75,131 (N.D.Ill. 1974). Both those cases
authorized civil discovery of "documents submitted to the grand
jury," so designated, on the rationale that the documents
"exist as an entity apart from the grand jury . . . not
reflect[ing] upon . . . the deliberation or work of the grand
jury." In Golden Quality Ice Cream the Court also commented
that the prior assembly of materials for grand jury inspection
would facilitate a reduction in the burden of making them
available in the civil action.
Of course the documents plaintiffs seek are not rendered
non-discoverable by their prior submission to the grand jury.
Were that principle operative, defendants would be
substantially immunized from civil liability if a grand jury
were to gain access to all damaging documentary information.
And as properly recognized in Golden Quality Ice Cream and
Cement-Concrete Block Proceedings, the documents are not a
product of the grand jury proceedings (as is grand jury
testimony) but have significance independent of the grand jury.
Discoverability of the documents need only meet the minimal
standard of Fed.R.Civ.P. 26(b)(1).
But the relevant question before this Court is not
discoverability as such. It is rather whether discovery should
be compelled in the format plaintiffs seek: collected as they
were before the grand jury (and in the case of Request No. 3,
effectively "indexed" by the subpoenas and lists requested in
addition to the documents themselves). In short, the issue is
whether the request for grand jury materials, compiled in the
manner that they were presented to the grand jury, violates
the principles of grand jury secrecy.
On that question this Court finds the dictum in United States
v. Stanford, 589 F.2d 285 (7th Cir. 1978) more persuasive than
plaintiffs' authorities. In Stanford, a criminal case, the
issue was whether documents
considered by the grand jury could be released to governmental
agents and disclosed to defendants without a court
authorization under Rule 6(e).*fn6 Our Court of Appeals held
that they could, quoting a Second Circuit opinion that when
"data is sought for its own sake — for its intrinsic value in
furtherance of a lawful investigation — rather than to learn
what took place before a grand jury, it is not a valid defense
to disclosure that the same documents had been, or were
presently being, examined by a grand jury." Id. at 291. Then
the Court said, in language strikingly apropos to the present
case (Id. at 291 n. 6, citations omitted):
We do not mean to say that disclosure of
documents is never subject to Rule 6(e). . . . A
general request for "all documents collected or
received in connection with the investigation of
antitrust violations . . ." for example, would be
in effect a disclosure of the grand jury
proceedings; the documents are significant
because they were before the grand jury.
Request No. 3 closely tracks the "general request" situation
to which Stanford referred. In fact that request is not only
for all documents submitted to the grand jury but for the
subpoenas in response to which the documents were submitted as
well. That fact of course adds to the danger recognized by the
Court of Appeals, under which document disclosure effectively
becomes a disclosure of grand jury proceedings.
Stanford is not to be distinguished because it did not
involve, as does this case, discovery in a civil proceeding.
Grand jury secrecy and its underlying policy are no less
violated by unwarranted disclosure in a civil action than in
any other context. Indeed the Court of Appeals cited, in
support of its Stanford statement, Corona Construction Co. v.
Ampress Brick Co., 376 F. Supp. 598 (N.D.Ill. 1974) — a civil
proceeding in which Judge Bauer (then a member of the District
Court) denied a request for "grand jury materials."
Plaintiffs can draw no added support from the fact that
their request is directed to defendants rather than to the
government. Grand jury confidentiality would be emasculated if
a party seeking discovery of its proceedings could do so by
routinely obtaining that information from potential (or as in
this case actual) defendants.
Finally, plaintiffs should derive no comfort from the
portion of Chief Judge Parsons' January 8 order that
recognized the possibility of permissible civil discovery.
Chief Judge Parsons' opinion, though treating a request
addressed by petitioners to a different target, might well
have been written for this case:
"Finally, according to Douglas, petitioners
should demonstrate that `their request is
structured to cover only [the] materials [they will
actually need].' Petitioners have simply requested
the release to them of all of the grand jury
material. In their quest for information grand
juries often acquire reams of documents and hours
of testimony later to be found irrelevant to the
investigation or the final charge. Its wholesale
disclosure could be embarrassing, if not
destructive of third parties or of unindicted
individuals and corporations concerned when
witnesses are called upon to testify or furnish
evidence which involves them. This is one of the
principal reasons why grand jurors are sworn to
secrecy. It is the duty of the court in following
6(e) to protect from public scrutiny and injury
such individuals and corporations. Petitioners
after having done little more than filing a suit,
seek an all-encompassing, unparticularized general
type of full disclosure which by the very nature of
the request would defeat the spirit and rule of
Procter & Gamble and Douglas Oil. Their request
offends the common-law concern for the traditional
protection of the innocent that has been built into
our grand jury system from its earliest
Accordingly this Court views the disclosure plaintiffs seek
as effectively that of "grand jury proceedings." As such, it
must be subjected to the rigid requirements of Rule 6(e) as
interpreted by the Supreme Court, though this is a civil
action and the discovery requests are directed solely at the
defendants. For the reasons stated in Chief Judge Parsons'
opinion this Court also believes that plaintiffs have failed
to demonstrate a "particularized need" for the grand jury
materials (as designated) and therefore are not entitled to
their production under Procter & Gamble and Douglas Oil.
2. Plaintiffs' Document Request No. 6: Grand Jury
Defendants have now informed the Court and plaintiffs that
they possess no transcripts of grand jury proceedings. Request
No. 6 is therefore moot.
3. Plaintiffs' Document Request No. 7: Presentencing
Plaintiffs' request for copies of presentencing materials is
apparently based on a contention that they refer to pertinent
materials submitted to the grand jury. This Court might then
simply deny Request No. 7 for the reasons applicable to
Request No. 3.
There are however important policies mandating the
confidentiality of presentence reports, independent of any
grand jury considerations, that should not go unmentioned. As
our Court of Appeals stated in another context, United States
v. Great-house, 484 F.2d 805, 807 (7th Cir. 1973):
[R]equiring disclosure of a presentence report is
contrary to the public interest as it would
adversely affect the sentencing court's ability
to obtain data on a confidential basis from the
accused for use in the sentencing process.
With the possible exception of a defendant's right of
no single factor plays a more significant
part in sentencing decisions than the presentence
investigation report. Moreover, its value (and therefore the
need for its being completely informative, including much data
that might not be admissible in judicial proceedings) does not
end with sentencing: It has ongoing importance to the Parole
Commission in the exercise of its functions in dealing with
Both the Parole Commission and the Administrative Office of
the United States Courts are even now urging the
confidentiality of such reports in a different context. This
month our District Court amended its Criminal Rule 2.07 to
provide that disclosure of such reports to the Parole
Commission itself is on a confidential loaned basis.
Both the entire thrust of Rule 32(c) and our local Criminal
Rule 2.07, and the policies they both serve, make plain the
need for such confidentiality. We judges would break faith
with defendants, whom we uniformly urge to cooperate with and
make full disclosure to the Probation Office to assist us in
our sentencing decisions, if we opened the reports up to
public scrutiny. Nothing submitted by plaintiffs justifies any
attenuation of all those policies by granting disclosure to
Plaintiffs' Motion for reconsideration of Magistrate
Cooley's November 20, 1980 order is denied. As a substantive
matter, all of plaintiffs' disputed requests for production
are also denied.