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