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April 8, 2004.


The opinion of the court was delivered by: SIDNEY SCHENKIER, Magistrate Judge


This case involves multi district litigation pending in this Court, in which the plaintiffs (both individually and on behalf of the class members they seek to represent) seek recovery under the federal antitrust laws for alleged anticompetitive conduct by the defendants in connection with the output and pricing of sulfuric acid. In addition to this civil litigation, there is an open federal grand jury criminal investigation into this subject, as well as proceedings in Canada involving documents sought by the grand jury. The dispute now before the Court involves the parties' disagreement concerning the extent of the defendants' obligation to identify and produce documents they have supplied to the grand jury.

As part of discovery in this case, the plaintiffs served a request for production of documents, consisting of some 66 specific requests, on defendants Norfalco, Noranda and Falconbridge (collectively, "the Noranda defendants"), and DuPont. Request No. 7 of each of the requests asked for production of:
All documents relating to Sulfuric Acid which you have provided to, or received from, any government agency or legislative body or representative, including, but not limited to, the Federal Trade Commission, the Federal Bureau of Investigation, the United States Department of Justice, the International Trade Commission, any other law enforcement agency of any state, any grand jury, any committee of the United States Congress, any agency or representative body of any state or any other political subdivision, or any investigatory body outside the United States, including Canada's Royal Canadian Mounted Police and the Canadian Competition Bureau.
In response to Request No. 7, the defendants raised various objections, only one of which we address: the objection that this request sought production of documents in violation of the requirements of Federal Rule of Criminal Procedure 6(e). The plaintiffs argue that this objection is without merit, and have moved to compel production of documents responsive to Request No. 7 (doc. #42).*fn1

  In aid of their motion, the plaintiffs have limited the scope of Request No. 7 in the following ways: (1) the plaintiffs now seek only documents that the defendants have produced to the Government in connection with the grand jury investigation, and have withdrawn any request for copies of subpoenas or other written materials from the Government to the defendants; (2) the plaintiffs seek only the documents produced by the defendants, without any explanatory indices or tables; and (3) the plaintiffs no longer ask that the defendants produce the documents in the same order as they were produced to the Government. Particularly as limited, the plaintiffs urge that compliance with the request would not require disclosure of "matters occurring before the grand jury," and thus would not run afoul of Rule 6(c).

  The defendants disagree. They acknowledge that the production of documents in a grand jury proceeding docs not, ipso facto, render them immune from production in civil litigation. To the contrary, the defendants claim that they have not withheld from production any documents that are responsive to the plaintiffs' 65 other document requests merely because they may have been produced to the grand jury. However, the defendants claim that they need not produce documents that are not responsive to the other 65 requests merely because they were produced to the grand jury, and that they need not identify which of the documents that they have produced were provided to the grand jury. The defendants argue that identification and production of documents produced to the grand jury could allow the plaintiffs to discern the path of the grand jury investigation, and thus constitute "matters occurring before the grand jury" that are protected from production.

  For the reasons that follow, the Court agrees that Request No. 7 seeks production of matters occurring before the grand jury within the meaning of Rule 6(e). As a result, the Court may order production of those documents only if the plaintiffs establish one of the exceptions enumerated in Rule 6(e)(3), which the plaintiffs have not attempted to do. Accordingly, the plaintiffs' motion to compel is denied.


  The parties largely have cited the same case law from the Seventh Circuit and from this district concerning the limitations imposed by Rule 6(e) on the production of materials produced to or generated by grand juries. See, e.g., In The Matter of Special March 1981 Grand Jury ("Almond Pharmacy"), 753 F.2d 575 (7th Cir. 1985); In Re The Special February, 1975 Grand Jury ("In Re Baggot"), 662 F.2d 1232 (7th Cir. 1981); United States v. Stanford, 589 F.2d 285 (7th Cir. 1978); State of Illinois v. Sarbaugh, 552 F.2d 768 (7th Cir. 1977); In Re Caremark Int'l Sec. Lit., No. 94 C 4751, 1995 WL 557496 (N.D. Ill. Sept. 14, 1995); Board of Educ. of Evanston Twp. High School Dist. No, 202 v. Admiral Heating and Ventilation, Inc., 513 F. Supp. 600 (N.D. Ill. 1981). Where they differ, not surprisingly, is on the interpretation to be given to certain of these decisions, and on which of them should govern the outcome of the dispute here.


  We begin by noting an issue not fully addressed by the parties. Rule 6(e)(2)(B) bars certain categories of persons from disclosing a "matter occurring before the grand jury." Civil defendants who (like the defendants here) have supplied documents to a grand jury in a related criminal investigation are not specifically identified in the categories of persons subject to the Rule 6(c)(2)(B) prohibition on disclosure. None of the Seventh Circuit decisions cited by the parties directly address the issue of whether such parlies may avail themselves of Rule 6(e)(2)(B) in resisting efforts to compel production of matters occurring before the grand jury.*fn2 And, it might be argued that unless a person from whom documents are sought is subject to Rule 6(e)(2)(B), under the express language of the rule, there is no occasion to determine whether the person is being asked to disclose grand jury material. However, at least two decisions in this district have treated persons in the position of the defendants here as empowered to resist production on the ground of Rule 6(e)(2)(B). One of the decisions required production, In Re Caremark, and the other declined to order production, Admiral Heating. Both rulings were based not on whether the parties from whom production was sought were subject to Rule 6(e)(2)(B) but, instead, on the respective conclusions reached in those decisions about whether the production would disclose "matters occurring before the grand jury." We will follow suit, and — as have the parlies in their briefing — focus on whether the requested production would disclose matters before the grand jury.


  Rule 6(e) protects grand jury secrecy in order to promote important institutional and private interests. Almond Pharmacy, 753 F.2d at 578. The institutional interests range from "not forewarning the targets of the grand jury's investigation to protecting witnesses and grand jurors from reprisals, . . . [which] are important to the grand jury's investigatory effectiveness," Id. The private interests include "the reputation of a person accused of wrongdoing by a witness before the grand jury." Id.

  The Seventh Circuit has observed that the disclosure of grand jury testimony poses a higher risk of compromising these interests than does the disclosure of documents presented lo the grand jury. Sarbaugh, 552 F.2d at 771 n.2 ("The policy of grand jury secrecy obviously had a much more limited application to the subpoenaed documents than it did to grand jury transcripts"). At the same time, the case law recognizes that the identification and production of materials supplied to the grand jury may permit discerning attorneys to learn "not only the information contained in specific documents, but the pattern of the grand jury's entire investigation." Falstaff Brewing Corp. v. Kessler, 489 F. Supp. 191, 194 (E.D. Wis. 1980); see also In Re Doe Grand Jury Proceedings, 537 F. Supp. 1038, 1043 (D.R.I. 1982) ("an examination of all documents subpoenaed and reviewed by the grand jury can reveal a great deal about the nature, scope and purpose of a secret grand jury investigation"). Thus, the Seventh Circuit has held that documents produced to a grand jury are subject to Rule 6(e)(2)(B) unless the documents have "intrinsic value and a usefulness for other legitimate purposes and would not breach grand jury secrecy, . . ." In Re Baggot, 662 F.2d at 1244; see also Almond Pharmacy, 753 F.2d at 578 ("If a document is sought for its own sake rather than to learn what took place before the grand jury, and if its release will not seriously compromise the secrecy of the grand jury's deliberations, Rule 6(e) docs not forbid its release") (citing In Re Baggot and Stanford).

  The question presented here is on which side of the line drawn by the Seventh Circuit plaintiffs' Request No. 7 falls. Admiral Heating and Caremark both addressed requests for documents that the defendants in those cases had submitted to grand juries, and reached different conclusions ...

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