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. 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
Parsons*fn3 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 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
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 ...