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IN RE HIGH FRUCTOSE CORN SYRUP ANTITRUST LITIGATION

December 28, 1999

IN RE HIGH FRUCTOSE CORN SYRUP ANTITRUST LITIGATION. THIS DOCUMENT RELATES TO ALL ACTIONS.


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

ORDER

This matter is before the Court on Class Plaintiffs' Motion Regarding the Preservation or Production of Business Documents Held in Connection with a Grand Jury Investigation of the High Fructose Corn Syrup Industry. For the reasons stated herein, the Motion is MOOT IN PART, GRANTED IN PART, and DENIED IN PART.

Factual Background

On June 29, 1999, the Department of Justice ("DOJ") sent a letter to this Court stating that the High Fructose Corn Syrup ("HFCS") grand jury proceedings in the United States District Court for the Northern District of Georgia, Atlanta Division, had concluded. (Plt.Ex.I). The DOJ further informed this Court of its intention to contact the parties that had submitted materials either voluntarily or pursuant to subpoenas duces tecum in order to coordinate the return of those materials. (Id.). On or about July 12, 1999, Class Plaintiffs sent a subpoena duces tecum to the DOJ, requesting:

    All documents relating to HFCS produced to, taken
  by, received by or in the possession of the United
  States, pursuant to, or in connection with, any search
  warrant, subpoena, document request, investigative
  demand, or otherwise at the request of the United
  States, in connection with any investigation of any
  violations of the antitrust laws.

(Plt.Ex.J). On or about July 29, 1999, the DOJ wrote a letter to one of Class Plaintiffs' attorneys, informing him that it objects to the subpoena to the extent Plaintiffs are seeking documents submitted by parties other than Defendants ("third-party documents"). Defendants subsequently wrote a letter to Class Plaintiffs on August 3, 1999, expressing their concurrence with the DOJ's objection. However, Defendants' objection focused primarily on the fact that fact discovery in this case closed on October 31, 1997. (Dec. 31, 1996, Minute Order).

After an informal attempt among the parties and the DOJ did not resolve the dispute, Class Plaintiffs filed the current Motion with this Court. Both the DOJ and Defendants have filed Responses to Plaintiffs' Motion, and the Court heard the parties' oral arguments on December 21, 1999. This Order follows.

Discussion

The parties and the DOJ agree that there are two types of materials sought by Plaintiffs in the subpoena duces tecum: (1) original documents belonging to Defendants in this case, copies of which have already been provided to Plaintiffs; and (2) third-party documents belonging to non-defending persons and/or entitles.

With respect to the first category of materials sought by Class Plaintiffs, the DOJ asserts that this is a matter between Plaintiffs and Defendants. The DOJ has no objection on grand jury secrecy grounds to Plaintiffs inspecting and/or copying these documents in light of the fact that Plaintiffs already have copies of everything Defendants have submitted to the DOJ and/or HFCS grand jury. The DOJ further requests that it be relieved of any responsibility for the storage and handling of materials and for mediating between Defendants and Class Plaintiffs.

Defendants have agreed that after the DOJ returns the documents to them, they will maintain the documents at the office of their respective lead counsel who are located in Chicago, Illinois or Washington, D.C. Defendants further represent and agree that with adequate notice they will make the documents reasonably available to Class Plaintiffs counsel for inspection. Class Plaintiffs have represented that this arrangement is agreeable to them. Consequently, Class Plaintiffs' Motion is moot with regard to the first category of materials. If and when Class Plaintiffs desire to inspect the documents, they shall provide Defendants with no less than two business days' notice before doing so. The Court fully expects that the parties will be able to work out any differences between them regarding the inspection of documents at Defendants' lead counsel's office(s). However, if they are unable to do so, the parties shall immediately seek resolution by this Court of any dispute. The DOJ is released from any further obligation to this Court to store, safeguard, and/or maintain Defendants' documents.

The real dispute is between the DOJ and Class Plaintiffs, and it deals with the second category of materials — third-party documents. The Court notes parenthetically that although Defendants concur with the DOJ's arguments regarding third-party documents, their standing to take a substantive position on the release of these documents to Class Plaintiffs is questionable. The Court recognizes that Defendants have also objected to the release of third-party documents on the ground that fact discovery is closed in this case, which is an issue that the Court addresses later in this Order.

The DOJ makes two arguments why the third-party documents should not be disclosed to Plaintiffs: (1) Plaintiffs have failed to make the requisite showing for disclosure to occur; and (2) even if Plaintiffs have made the requisite showing, the Motion is procedurally infirm. Because the Court agrees with the DOJ that the Motion is procedurally infirm, it expresses no opinion on whether Plaintiffs have made the requisite showing. Rule 6 (e) of the Federal Rules of Criminal Procedure provides, in relevant part:

    (D) A petition for disclosure [of matters occurring
  before the grand jury] . . . shall be filed in the
  district where the grand jury convened. Unless the
  hearing is ex parte, which it may be when the
  petitioner is the government, the petitioner shall
  serve written notice of the petition upon (i) the
  attorney for the government, (ii) the parties to the
  judicial proceedings if disclosure is sought in
  connection with such a proceeding, and (iii) such
  other ...

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