ACCESS TO AND USE OF GRAND JURY TRANSCRIPTS IN CIVIL CASES I.

INTRODUCTION Anyone practicing civil litigation knows certain civil cases have quasi-criminal components. Civil actions for conspiracy, conversion, battery, as well as anti-trust, RICO cases, an consumer protection cases, often parallel or follow criminal procee ings brought in state or fe eral court. If criminal charges are pen ing or anticipate against a witness or party in your civil case, they may invoke their constitutional privileges in refusing to provi e iscovery, may isappear, or may simply refuse to appear for eposition. In such cases, access to gran !ury transcripts an the ability to use them become crucial to proving your case or efense. "o obtain gran !ury transcripts a civil litigant must show a particulari#e nee for access to such materials outweighing the nee for continue secrecy of the gran !ury procee ing an that the request for access is structure to cover only materials that are nee e . A mere showing that such materials are relevant or woul be useful is not enough.$

II.

GROUNDS FOR SECRECY OF GRAND JURY PROCEEDINGS %istorically, our fe eral an state courts have universally recogni#e several groun s for

maintaining the secrecy of gran !ury procee ings. "hese inclu e preventing etection an escape by those who may be in icte & insuring free om to the gran !ury in its eliberations& preventing targets an their associates from tampering with gran !urors or witnesses an suborning per!ury& encouraging the free isclosure of information by people having knowle ge

of crimes& an protecting those who are not in icte from publication of the fact that they are the sub!ect of a gran !ury investigation.'

Rule ()e*)'* of the +e eral Rules of Criminal ,roce ure encompasses the general rule of secrecy in provi ing that any gran !uror, interpreter, stenographer, operator of a recor ing evice, or typist who transcribes reporte testimony, an any attorney for the government or any person to whom isclosure is ma e - shall not isclose matters occurring before the gran !ury, e.cept as otherwise provi e for - . "he rule goes on to provi e that a knowing violation may be punishe as a contempt of court./ "he rule, however, contains certain e.ceptions. "he e.ception permitting isclosure of gran !ury transcripts to thir parties is foun at Rule ()e*)/* )C*)i* which provi es that isclosure of matters occurring before the gran !ury may be ma e when so irecte by a court preliminary to or in connection with a !u icial procee ing. 0"he policy of secrecy surroun ing gran !ury procee ings, however, is not absolute. It is esigne to protect from isclosure only the essence of what takes place in the gran !ury room, in or er to preserve the free om an integrity of the eliberative process.12 "he stan ar for establishing a right to isclosure un er Rule ()e* is not an e.cessive one, but rather is a 0highly fle.ible1 one, a aptable to ifferent circumstances an sensitive to the fact that the requirements of secrecy are greater in some situations than in others.3 "he 4encks Act( an Rule '(.' of the +e eral Rules of Criminal ,roce ure require that after a witness has testifie at a criminal trial on irect e.amination, the court, on motion of a party who i not call the witness, shall or er the attorney for the government or the efen ant to pro uce for e.amination an use of the moving party any statements of the witness that are in their possession relating to the

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sub!ect matter concerning which the witness has testifie . 5uch statements inclu e transcripts of testimony before the gran !ury.

(A)

Preventing Detection n! F"ig#t $e%ore In!ict&ent

,erhaps most fun amental to the nee to keep gran !ury procee ings secret is the fear that, shoul a target be notifie of the gran !ury investigation or a possible in ictment, he or she will flee. One nee only glance at the newspapers nowa ays to see how isclosure of gran !ury procee ings may a versely effect the significant law enforcement an public interest in investigating crimes an prosecuting suspects. 5uch nee for secrecy, of late, however, has been somewhat curtaile in light of the tren towar informing suspects that they are targets of gran !ury investigations. 6here the prosecution so tips its han , the interests of maintaining gran !ury secrecy so as to avoi etection an flight fa e. 07"8he attorney, whose name was

ina vertently mentione in open court, in all probability was aware that he was a target of the investigation because such targets are often notifie by letter from the 9nite 5tates Attorney-1: 6ith the mo ern evelopment of technology an e.pansion of the me ia comes an increase likelihoo that targets will learn that they are the sub!ect of a gran !ury investigation prior to in ictment. ,rior publication by the me ia also plays against the nee for secrecy to avoi risk of flight.

($)

Protecting Innocent Peo'"e Fro& Stig& ( n! D & ge to Re')t tion

In ;nglan , gran !ury procee ings were originally public so as to enable the Crown to e.ert pressure on the !urors.< ;ventually, gran !ury procee ings there were ma e private an

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the gran !ury sat by themselves hearing witnesses one at a time with noone else being present e.cept the solicitor for the prosecutor if he was a mitte .= "hat practice was followe in Colonial >assachusetts until statutes were enacte permitting istrict attorneys, stenographers, etc., to be present.$? 0"he gran !ury as known to the common law always has been regar e as a bulwark of in ivi ual liberty an a fun amental protection against espotism an persecution.1$$ Courts recogni#e concerns that the release of gran !ury transcripts may harm the future relationships of witnesses in the business community$' an have tra itionally emphasi#e the nee to protect in ivi uals from the notoriety an isgrace associate with being the sub!ect

of a gran !ury investigation as !ustifying keeping such procee ings secret.$/ 0"his rule of secrecy impose on the hearings an eliberations of the gran !ury erives

from two significant consi erations. "he first is a ecision to save in ivi uals from notoriety unless probable cause is foun against them an an in ictment is returne an isclose .1$2

0"he right of in ivi ual citi#ens to be secure from an open an public accusation of crime, an from the trouble, e.pense an an.iety of a public trial, before a probable cause is establishe by the presentment an in ictment of a gran !ury, in case of high offences, is !ustly regar e as one of the securities to the innocent against hasty, malicious, an oppressive public prosecutions, an as one of the ancient immunities an privileges of ;nglish liberty.1$3 0"he above quotation is a eclaration an ecision that the "welfth Article of the @ill of Rights in part was aime an inten e to prohibit the scan al an isgrace of a trial in public of persons charge with infamous crimes an offences when, in truth, there was no sufficient cause to suspect their guilt.1$(

(C)

Preventing *itne++ T &'ering( S),orn tion o% Per-)r.( Inti&i! tion( n! O)t+i!e In%")ence( n! In+)ring Free!o& to t#e Gr n! J)r. In It+ De"i,er tion+

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,reventing subornation of per!ury or witness tampering is also a policy consi eration behin maintaining the secrecy of gran !ury procee ings. "hat concern, however, is iminishe once a gran !ury has isban e an trial on any in ictment it returne has complete . After the gran !ury has been ischarge , the temporary guarantee of secrecy en s an isclosure is proper

where require in the interest of !ustice.$: Our courts have long recogni#e the 0special significance1 in shiel ing gran !ury procee ings from any outsi e influences having the potential to istort its investigatory or accusatory functions.$< 5uch e.traneous influences inclu e the news me ia as well as law enforcement personnel.$= 0"he atten ance of a police officer woul affor opportunity for sub!ecting witnesses to fear or intimi ation, for preventing free om of full isclosure by testimony, an for infringing the secrecy of the procee ings.1'? (D) Enco)r ging F)"" Di+c"o+)re ,. Peo'"e / ving In%or& tion A,o)t t#e Co&&i++ion o% Cri&e+

>aintaining secrecy of gran !ury procee ings is esigne , in part, to encourage full an free isclosure of information concerning the commission of a crime.'$ 0"he promotion of many of these interests, especially the encouragement of witnesses to come forwar an testify freely, requires courts, inclu ing this court, to Aconsi er not only the imme iate effects 7of isclosure8 upon a particular gran !ury, but also the possible effect upon the functioning of future gran !uries. ,ersons calle upon to testify will consi er the likelihoo that their testimony may one ay be isclose to outsi e parties. +ear of future retribution or social stigma may act as powerful eterrents to those who woul come forwar an ai the gran !ury in the performance of its uties- "hus, the interests in gran !ury secrecy, although re uce , are not eliminate merely because the gran !ury has en e its activities.1 07I8t is reasonable to think that potential gran !ury witnesses, recogni#ing that at a future time pressure may be e.erte on them to consent to the publication of their testimony, will either refuse to come forwar or will tailor their testimony in view of that possibility- . 6e conclu e, therefore, that a rule that woul

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warrant an or er of isclosure of gran !ury procee ings where consent has been given, even by all those irectly an imme iately effecte , woul be unwise because it woul isserve the important public interests of encouraging free isclosure of information to the gran !ury an free eliberations.1'' Our courts also recogni#e, however, that in revealing amaging evi ence before a gran !ury a witness must e.pect that such evi ence will ultimately be isclose in open court at trial. "hus, some courts have hel that any hesitancy that a witness might have in ivulging harmful evi ence before the gran !ury or inarily woul be base upon the fear of the eventual necessity of giving that same evi ence in open court rather than the fear that, having once given such harmful evi ence, his gran !ury testimony might be ivulge an that isclosure of prior gran !ury testimony will not un uly iscourage free statements by witnesses before the gran !ury.'/

II.

FACTORS S/O*ING A PARTICULARI0ED NEED FOR ACCESS TO GRAND JURY TRANSCRIPTS Botwithstan ing the longstan ing rule of secrecy regar ing access to transcripts of

testimony of witnesses who appeare before the gran !ury, our courts recogni#e a number of factors ten ing to establish a 0particulari#e nee 1 for such materials weighing against the policy consi erations for maintaining secrecy.

(A)

Re%)+ " o% *itne++ to Te+ti%. t De'o+ition or Tri "

"he fact that a witness refuse to testify at eposition or the trial of a civil case, having previously testifie before a gran !ury, is consi ere in etermining whether a civil party has ma e a showing of particulari#e nee for isclosure of gran !ury transcripts. 0"he plaintiffs go further an point out that >artin, Rathke an ,ackar are key witnesses for any price fi.ing

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conspiracy allegation an have stymie

iscovery by their use of the fifth amen ment- "his

showing alone, however, woul still leave the plaintiffs short of carrying their bur en.1'2 07@8ut it shoul be note that the 5crews court i not require or fin sufficient a fin ing that the fifth amen ment ha been use to stymie iscovery before the gran !ury minutes coul be iscovere .1'3 Although it is clear beyon ispute that the gran !ury may not be use as a

vehicle for civil iscovery, a government subpoena for a gran !ury investigation seeking ocuments oes not insulate such ocuments from their use in a relate civil case especially where a witness refuse to provi e such ocuments at eposition invoking privilege against selfincrimination.'( 07"8he court is convince that iligent iscovery without access to the transcripts has not, will not, an cannot succee in presenting sufficient facts to a !ury to enable it to make any kin of informe ecision as to the issues in this case. "he +ifth Amen ment wall

is too high, too broa , an too thick.1': Accor ingly, where a civil litigant is unable to obtain testimony or ocuments through iscovery as a result of invocations of the privilege against self-incrimination of witnesses who have testifie before, or provi e ocuments to, the gran !ury, this is one factor that our courts

weigh in etermining whether a party has met its bur en of showing a particulari#e nee for gran !ury transcripts.

($)

Re%re+#ing Reco""ection n! I&'e c#ing *itne++ *it# Prior Incon+i+tent St te&ent+

One often encounters at eposition or trial a witness who is unable to recollect prior events either legitimately or otherwise. Another frequently encountere event occurs when a witness, while on the stan at trial, testifies ifferently than he or she i either at eposition, at a

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prior hearing, or before the gran !ury. Our courts have consi ere such scenarios in etermining whether a civil litigant has met the bur en of showing a particulari#e nee for gran !ury transcripts. 0"he plaintiffCs nee becomes more particulari#e an compelling when it becomes evi ent that the transcripts are essential - to assure the accuracy of testimony at trial - .1'< 07;8very e.perience trial !u ge an trial lawyer knows the value for impeaching purposes of statements of the witness recor ing the events before time ulls precious memory.1'= It has also been hel that where no gran !ury minutes e.ist, a prosecutor may be permitte to testify in a civil insurance frau case as to his recollection of what the efen ants ha previously sai before the gran !ury regar ing the value of goo s allege ly lost in fire in an effort to assure the accuracy of testimony at trial./?

0,articulari#e nee woul be shown, no oubt, when it was a mitte or somehow emonstrate that the gran !ury testimony contra icte in a material way the testimony given by the same witness at trial, an coul thus be use to impeach him or shake his cre ibility or refresh his memory.1/$ 0"he principle of secrecy is not impaire by permitting a gran !ury man, after the fin ing of an in ictment, to testify that a witness on behalf of the prosecution testifie ifferently on his e.amination before them from the testimony given by him before the !ury at trial.1/' 0"he efen ant i not show that gran !ury minutes woul cast further light as to either of the allege inconsistencies- or that the gran !ury testimony might be in any other way inconsistent with CarrCs testimony at trial.1//

(C)

Avoi!ing Un% ir A!v nt ge n! E1) "i2ing Acce++ to Re"ev nt F ct+

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Occasionally, counsel representing the a verse party in a civil case also represents that party in a criminal case resulting from an in ictment. In such cases, the a verse party will likely have been provi e with gran !ury transcripts. "his obviously provi es the a verse party with an a vantage in the civil litigation. Our courts recogni#e this to be another factor to be consi ere in etermining whether a civil litigant has ma e a showing of particulari#e nee for access to gran !ury transcripts whereas mutual knowle ge of all relevant facts gathere by both parties is essential to proper litigation./2 0"o permit efen ants to have access to gran !ury transcripts an e.hibits while prohibiting isclosure to the plaintiffs woul be patently unfair in that it woul give one si e of this litigation e.clusive access to a storehouse of relevant facts.1/3 A particulari#e or compelling nee for access to gran !ury transcripts may be base upon such an unfair a vantage./( 0It woul be e.cee ingly inequitable, iscriminating an contrary to the principles of fe eral iscovery to allow one party access to gran !ury transcripts, but not the remaining parties.1/: 0"he nee for access becomes more particulari#e an compelling when transcripts are essential to equali#e access to relevant facts.1/< 07,8articulari#e nee 1 becomes 0strong1 both for purposes of trial preparation an for trial itself, when there has been prior unlimite release to one party in the litigation of the gran !ury transcript an materials. In that case, isclosure is in or er not merely to assure the accuracy of the testimony, but also 0to equali#e the access to relevant facts which each si e possesses1 an to eliminate the obvious unfair a vantage, arising from affor ing only one si e 0e.clusive access to a storehouse of relevant fact.1 @eyon this, it is contrary to the wholesome spirit of mo ern fe eral proce ure to eny one party evi ence available to the other party. 5uch a proce ure is too much like provi ing arms to one a versary an enying it to the other.1/= (D) E3ten+ive Prior Di+c"o+)re o% Gr n! J)r. Te+ti&on.

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6here there has been prior publication of a gran !ury investigation, this weakens, but oes not eliminate, the policy consi erations behin maintaining the secrecy of such procee ings. 0A publicly file complaint or e.tensive press conference un oubte ly will reveal certain facts, inclu ing probably the target of the investigation, but in the ma!ority of cases, the recor s will contain a itional information that nee not be ma e public. "hus, because we cannot conclu e that as a general matter the release of Ano billC recor s woul be beneficial to the functioning of the system, we hol that there is no first amen ment right to access of such recor s.12? 0"he en of a gran !ury inquiry re uces the interests in gran !ury secrecy- . "he interests in secrecy are re uce further by numerous me ia reports with etails of the scheme an the names of its participants, inclu ing the efen ants in the civil case. "he nee for continue secrecy is therefore minimal.12$

Accor ingly, in etermining whether to grant a civil litigant access to gran !ury transcripts, courts will consi er whether there has been e.tensive prior publication of the investigation an to what egree such prior isclosure militates against the tra itional groun s for maintaining gran !ury secrecy an re uces a civil litigantCs bur en of showing a particulari#e nee for such transcripts.

(E)

Di+, n!ing o% Gr n! J)r.

After a gran !ury has isban e , the interests of gran !uryCs secrecy, although re uce , are not eliminate .2' After gran !ury has been ischarge an an in ictment has been returne , there no longer e.ists a risk that the target of the gran !ury investigation will flee ue to prior notification. Bor oes there e.ist any risk of the gran !ury feeling constraine in its

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eliberations or that gran !urors will be tampere with. Bor oes the nee to protect those who are not ultimately in icte from publicity e.ist. A itionally, the isclosure of information by people having knowle ge of a particular crime nee not be protecte whereas the gran !ury testimony has been complete . 0"he rule of reason has been applie . After the in ictment has been returne or the investigation en e , there is little or no reason for continuing the rigi rule of secrecy.12/ %owever, privacy concerns still e.ist after a gran !ury has isban e . "he likelihoo that potential gran !ury witnesses will consi er the possibility that their testimony may be isclose to outsi e parties after ischarge of the gran !ury an any concomitant fear of retribution or social stigma may cause reluctance to testify before the gran !ury in the first place. "his militates in favor of maintaining gran !ury secrecy even after gran !uries have isban e .22 "hus, although the temporary guarantee of gran !ury secrecy en s once a gran !ury is ischarge an , although isclosure of gran !ury testimony may be proper where require in the interest of !ustice, the mere fact that a gran !ury has isban e oes not

automatically mean that transcripts from testimony for that gran !ury will be ma e available to civil litigants.

IV.

CONCLUSION In ;nglan , as well as in the 9nite 5tates, gran !ury procee ings have always been

shrou e in secrecy. %istorical groun s for maintaining secrecy remain vital to ay notwithstan ing the fact that access to gran !ury minutes may be essential to civil litigants preparing for trial. 0It is now well settle that isclosure rather than suppression of relevant materials in gran !ury minutes or inarily promotes the proper a ministration of !ustice, both civil an criminal, an it is no longer necessary in every case for the trial !u ge, like a fussy hen,

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to scratch through the gran !ury transcripts in camera before permitting isclosure of relevant testimony therein.23 Civil litigants seeking access to gran !ury transcripts bear the bur en of showing a particulari#e nee for such materials outweighing the continue nee for secrecy an that the request for access is structure only to cover the materials nee e . +actors consi ere by our courts in etermining whether civil litigants have shown a particulari#e nee for gran !ury transcripts inclu e whether witnesses who have testifie before the gran !ury have refuse to testify uring iscovery or at trial in a civil case& whether gran !ury transcripts are necessary to refresh witnessesC recollections or impeach their cre ibility via prior inconsistent statements& whether one si e in the civil case has been provi e with gran !ury transcripts& whether there has been prior publication of the gran !ury investigation& an whether the gran !ury has been ischarge . In etermining whether to grant civil litigants access to gran !ury transcripts our courts continue to analy#e cases on an in ivi ual basis weighing the tra itional groun s for maintaining gran !ury secrecy against those factors showing a particulari#e nee for such transcripts. "here e.ist no har an fast rule as to when, or un er what circumstances, access will be grante an such ecisions will continue to epen upon the facts of each particular civil case wherein access to gran !ury transcripts is requeste .

;BDBO";5

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$'

Douglas Oil Co. of California v. ,etrol 5tops Borthwest, 22$ 9.5. '$$, == 5. Ct. $((: )$=:=*& In ReE Fran 4ury Criminal

In ictments :(-$2= an ::-:', 2(= +. 5upp. ((( )>.D. ,a. $=:<*

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9.5. v. ,rocter G Famble Co., /3( 9.5. (::, :< 5. Ct. =</, =<( n.( )$=3<*& In ReE Fran 4ury 5ubpoena, $?/ +./ '/2

)'n Cir. $==(*& +un for Constitutional Fovernment v. Bational Archives an Recor 5ervice, et al, (3( +.' <3( )D.C. Cir. $=<$*& In ReE Disclosure of "estimony @efore the Fran 4ury, 3<? +.' '<$ )<th Cir. $=:<*& In ReE Fran 4ury ,rocee ings, <?? +.' $'=/ )2th Cir. $=<(*

Rule ()e*)'* +e . R. Crim. ,.& 9nite 5tates v. ;astern Airlines, Inc., ='/ +.' '2$ )'n Cir. $==$* )"he rule of secrecy

forbi s isclosure of matters occurring before the gran !ury*.

In ReE Fran 4ury ,rocee ings Relative to Borman ,erl, </< +.' /?2 )<th Cir. $=<<* )Access to ocuments grante to

civil plaintiffs suing former attorneys*.

9nite 5tates v. 5ells ;ngineering, Inc., 2(/ 9.5. 2$<, $?/ 5. Ct. /$//, /$2= )$=</*& 5ee also In ReE Fran 4ury ocuments provi e to

,rocee ings, F4-:(-2 G F4-:3-/, <?? +.' $'=/ )2th Cir. $=<(* )Access to gran !ury transcripts an

government in civil cases*& 5ee also In ReE Request for Access to Fran 4ury >aterials Fran 4ury Bo. <$-$, >iami, <// +.' $2/< )$$th Cir. $=<:* )Recogni#ing that the stan ar for permitting access to gran !ury materials is highly fle.ible an sensitive to the fact that the nee for secrecy is greater in some situations than others*.
(

$< 9.5.C., H/3??, et seq

In ReE Charlotte Observer, ,etitioner, ='$ +.' 2: )2th Cir. $==?* )In!unction preventing newspaper from publishing name

of gran !ury investigation target that was erroneously uttere by !u ge in open court vacate . 0On the present recor , however, the cat is out of the bag.1*.

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Opinion of the 4ustices, /:/ >ass. <</, /:$ B.;.' 2'' )$=::*

$ 5tephenCs %istory of the Criminal Iaw of ;nglan , ':2

$?

Commonwealth v. %arris, '/$ >ass. 3<2, $'$ B.;. 2?=, 2$? )$=$=*

$$

Iebowitch v. Commonwealth, '/3 >ass. /3:, $'( B.;. </$ )$='?*

$'

In ReE 5crews Anti "rust Iitigation, =$ +.R.D. 2: )D. >ass. $=<$*

$/

In ReE 4ohn Doe Fran 4ury Investigation, 2$3 >ass. :': )$==/*

$2

Commonwealth v. ,e##ano, /<: >ass. (=, 2/< B.;.' <2? )$=<'*, quoting Opinion of the 4ustices, /:/ >ass. at =$=

)$=::*

$3

4ones v. Robbins, < Fray /'= )$<3:*

$(

Commonwealth v. %arris, '/$ >ass. 3<2 )$=$=*

$:

%erman 5chwabe, Inc. v. 9nite 5hoe >achinery Corp., $=2 +. 5upp. :(/ )D. >ass. $=3<* )Fran !ury transcripts

provi e to efense in civil case regar ing prior gran !ury testimony of plaintiff*.

$<

Opinion of the 4ustices, /:/ >ass. at =$< )$=::*

$=

6@'-"J2 v. District Attorney for the 5uffolk District, 2?< >ass. 3=3, 3(' B.;.' <$: )$==?*

'?

Commonwealth v. ,e##ano, et al, /<: >ass. (=, 2/< B.;.' <2$, <23 )$=<'* )9nauthori#e presence of police officer ismissal of in ictments even in the absence of a showing of pre!u ice to the efen ants*.

before gran !ury require

'$

Douglas Oil Co. v. ,etrol 5tops Borthwest, 22$ 9.5. '$$, '$= n.$? )$=:=*& 5tate of "e.as v. 9nite 5tates 5teel Corp.,

32( +.' ('( )3th Cir. $=::* )Access to gran !ury transcripts enie *& In ReE Fran 4ury, 2(= +. 5upp. ((( )>.D. ,a. $=:<* )Access to gran !ury transcripts enie to civil plaintiffs, in part, because future gran !ury witnesses woul be reluctant to testify before gran !ury knowing that their names may be release *.

''

In ReE 4ohn Doe Fran 4ury Investigation, 2$3 >ass. :': )$==/* )Access to vi eo an au iotapes regar ing gran !ury isban e , criminal prosecutions ha conclu e , many etails of

lineup an interviews enie even where gran !ury ha

lineup has been publicly isclose an consent of intereste parties was obtaine *.

'/

9nite 5tates v. %ughes, 2$/ +.' $'22 )3th Cir. $=(=* In ReE 5crews Anti "rust Iitigation, =$ +.R.D. 2:, 2= )D. >ass. $=<$*

'2

'3

%alperin v. @erlan i, $$2 +.R.D. <, $2 )D. >ass. $=<(* ),ermitting access to gran !ury transcripts to plaintiffs in civil

RICO case*.

'(

Capitol In emnity Corp. v. +irst >innesota Construction Co., et al, 2?3 +. 5upp. ='= )D. >ass. $=:3*

':

In ReE Corrugate Container Antitrust Iitigation, (<: +.' 3' )3th Cir. $=<'* )Access to gran !ury transcripts grante to

civil plaintiffs where witnesses invoke +ifth Amen ment privilege against self-incrimination at eposition*.

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In ReE 5crews Anti "rust Iitigation, =$ +.R.D. 2:, 2=-3? )D. >ass. $=<$*& In ReE Fran 4ury ,rocee ings, <?? +.' $'=/

)2th Cir. $=<(*& 5tate of Illinois v. 5arbaugh, 33' +.' :(< ):th Cir. $=::* )Access grante to 5tate of Illinois in civil antitrust suit*.

'=

In ReE Catfish Antitrust Iitigation, $(2 +.R.D. $=$ )B.D. >iss. $==3* )Access to gran !ury minutes grante to civil

plaintiffs in antritrust cases*.

/?

Bew %ampshire +ire Insurance Co. v. %ealy, et al, $3$ >ass. 3/:, '2 B.;. =$/ )$<=?*

/$

Commonwealth v. 5tewart, /(3 >ass. == )$=:2* )Relating to particulari#e nee by a efen ant in criminal case*& 5ee

also 9nite 5tates v. 5ocony-Jacuum Oil Co., Inc., et al, /$? 9.5. $3?, (? 5. Ct. <$$ )$=2?*& 5tate of Illinois v. %arper G Row ,ublishers, Inc., et al, 3? +.R.D. /: )B.D. Ill. $=(=* )During epositions in civil antitrust case witnesses emonstrate

0remarkable lack of memory1 concerning critical events. "herefore, plaintiff was grante access to transcripts of their gran !ury testimony*.

/'

Commonwealth v. %arris, '/$ >ass. 3<2 )$=$=* )Regar ing criminal case*

//

Commonwealth v. DeChristoforo, /(? >ass. 3/$ )$=:$* )Bo particulari#e nee shown by criminal efen ant for gran

!ury transcripts prior to repu iation of particulari#e nee requirement in criminal cases in >assachusetts*.

/2

%ickman v. "aylor, /'= 9.5. 2=3 )$=2:*& 9nite 5tates v. %ughes, 2$/ +.' $'22 )3th Cir. $=(=* )Allege violations of

securities an antitrust acts often resembles the most comple. cases, necessitating a vigorous probing of the mass of etaile facts to seek out the truth*& 5ee also In ReE Fran 4ury Investigation, 5tate of >issouri, 33 +./ /3? )<th Cir. $==3* ))Recogni#ing that cost of savings in terms of both time an money is a vali consi eration in etermining whether civil plaintiff has shown particulari#e nee for gran !ury materials*.

/3

Dennis v. 9nite 5tates, /2< 9.5. <33, <( 5. Ct. $<2? )$=((*& 9.5. In ustries, Inc. v. 9nite 5tates District Court, /23

+.' $< )=th Cir. $=(3* )Access to presentence memoran um provi e to civil plaintiffs because it woul be 0highly inequitable an averse to the principles of fe eral iscovery1 to allow one party access to a government ocument an not the other*& 5tate of Illinois v. 5arbaugh, 33' +.' :(< ):th Cir. $=::*& In ReE Catfish Antitrust Iitigation, 2/? +. 5upp. (/= )B.D. >iss. $==3*, citing 9nite 5tates v. +ischbach G >oore, Inc., ::( +.' </= )=th Cir. $=<3* )One partyCs possession of gran !ury transcripts necessarily favors isclosure to the opposing party as a matter of fairness an because there is a lesser interest in secrecy after initial isclosure*.

/(

In ReE 5crews Anti "rust Iitigation, =$ +.R.D. 2: )D. >ass. $=<$*

/:

5ecurities an ;.change Commission v. Bational 5tu ent >arketing Corp., et al, 2/? +. 5upp. (/= )D.C. $=::* %alperin v. @erlan i, $$2 +.R.D. < )D. >ass. $=<(*

/<

/=

In ReE Fran 4ury ,rocee ings, <?? +.' $'=/ )2th Cir. $=<(* )Access to gran !ury transcripts grante to government in

civil case*.

2?

Flobe Bewspaper Company, et al v. ,okaski, et al, <(< +.' 2=: )$st Cir. $=<=* )Access to recor s where no in ictment enie even where gran !ury procee ing is prece e by a public event such as press conference or publicly

was returne

file complaint*

2$

In ReE Fran 4ury Investigation, 33 +./ /3? )<th Cir. $==3* Douglas Oil Co. v. ,etrol 5tops Borthwest, 22$ 9.5. '$$ )$=:=*& In ReE Fran 4ury Investigation, 5tate of >issouri, 33

2'

+./ /3? )<th Cir. $==3*& In ReE Fran 4ury 5ubpoena, $?/ +./ '/2 )'n Cir. $==(*& 9nite 5tates v. 5ocony-Jacuum Oil Co., Inc., et al, /$? 9.5. $3?, (? 5. Ct. <$$ )$=2?*& In ReE Fran 4ury ,rocee ings Relation to Borman ,erl, </< +.' /?2 )<th Cir. $=<<*.

2/

,almentere v. Campbell, et al, '?3 +. 5upp. '($ )6.D. >o. $=('* )Recogni#ing that both state an fe eral courts are

moving in the irection of rela.ing rigi rules of secrecy*& In ReE 4ohn Doe Fran 4ury Investigation, 2$3 >ass. :': )$==/*& In ReE Disclosure of "estimony @efore "he Fran 4ury, 3<? +.' '<$ )<th Cir. $=:<* )07"8he gran !ury ha cease its gambling investigation. "herefore, there is presently no nee to protect against an accuse escaping before he is in icte an arreste . "here is no risk of tampering with the witnesses. "here is no risk of inhibiting the gran !uryCs investigation an eliberation. In sum, several of the reasons for gran !ury secrecy are not operable here.1*& 5tate of Illinois v.

5arbaugh, 33' +.' :(< ):th Cir. $=::* )6hen gran !ury has complete its work several of the reasons for secrecy no longer remain*& In ReE Catfish Antitrust Iitigation, $(2 +.R.D. $=$ )B.D. >iss. $==3* )Civil plaintiffs grante access to gran !ury transcripts in antitrust case after criminal investigation ha conclu e *& %erman 5chwabe, Inc. v. 9nite 5hoe >achinery Corp., $=2 +. 5upp. :(/ )D. >ass. $=3<* )Access to gran !ury minutes provi e to civil litigant ten years after gran !ury was ischarge *.

22

Flobe Bewspaper Co., et al v. ,okaski, et al, <(< +.' 2=: )D. >ass. $=<=* )Access enie even though gran !ury ha

isban e *& In ReE 4ohn Doe Fran 4ury Investigation, 2$3 >ass. :': )$==/*.

23

5tate of Illinois v. %arper G Row ,ublishers, Inc., et al, 3? +.R.D. /: )B.D. Ill. $=(=*, quoting, 5tate of 6ashington v.

American ,ipe G Const. Co., 2$ +.R.D. 3= )5.D. Cal. $=((*.