345 F.2d 18 (9th Cir. 1965), 19619, United States Industries, Inc. v. U.S. Dist. Court for Southern Dist. of Cal., Central Division

Docket Nº:19619.
Citation:345 F.2d 18
Case Date:April 07, 1965
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 18

345 F.2d 18 (9th Cir. 1965)

U.S. INDUSTRIES, INC., et al., Petitioners,



No. 19619.

United States Court of Appeals, Ninth Circuit.

April 7, 1965

Page 19

Frank D. MacDowell, William MacD. Miller, Hill, Farrer & Burrill, Los Angeles, Cal., Gordon Johnson, San Francisco, Cal., James Baldwin, Los Angeles, Cal., Paul Haerle, Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., Jesse R. O'Malley, Edward J. Riordan, Musick, Peeler & Garrett, Oliver F. Green, Paul, Hastings, Janofsky & Walker, John J. Hanson, John H. Sharer, Shari L. Nelson, Chester A. Skinner, Gibson, Dunn & Crutcher, Los Angeles, Cal., for petitioners.

William H. Orrick, Jr., Asst. Atty. Gen., Lionel Kestenbaum, Elliott H. Moyer, Attys., Dept. of Justice, Washington, D.C., for respondent.

Joseph L. Alioto, Maxwell M. Blecher, Matthew P. Mitchell, San Francisco, Cal., for 'No-Joint' plaintiffs, real parties in interest.

John Joseph Hall, Los Angeles, Cal., for 'Perovich' plaintiffs, real parties in interest.

Thomas C. Lynch, Atty. Gen. of Cal., Wallace Howland, Asst. Atty. Gen. of Cal., Mervin R. Samuel, Michael I. Spiegel, Deputy Attys. Gen. of Cal., San francisco, Cal., for State of California as amicus curiae.

Before POPE, BARNES and ELY, Circuit Judges.

BARNES, Circuit Judge.

This is a petition for writ of prohibition and for writ of mandate (either or both, in the alternative). Petitioners seek to reseal a government memorandum which the district court has determined to be a proper object of federal discovery proceedings. This court's jurisdiction to grant the requested relief is derived from the 'All Writs' statute, 28 U.S.C. § 1651.

The government document in dispute has been ordered unsealed for the use of plaintiffs in presently pending civil antitrust actions involving the concrete and coated steel pipe industry. The document had previously been prepared for sentencing purposes in the criminal antitrust proceeding from which these civil actions originate. Petitioners are corporations and corporate officers who had been indicted for violations of Section

Page 20

1 of the Sherman Act, 15 U.S.C. § 1, as well as other individuals who assert they testified before the grand jury which returned the indictments.

The indictment against a portion of the present petitioners had been returned on March 10, 1964. On March 30, 1964, the defendants, over objection by the government, were permitted to plead nolo contendere. Upon acceptance of these pleas, Honorable Albert Lee Stephens, Jr., United States District Judge, before whom the pleas were made, directed counsel for the defendants and the government to submit confidential reports to the probation officer, to facilitate his role as an advisor to the court in the sentencing process.

Pursuant to the above directions, the government prepared a 'Memorandum of Government Relating to the Imposition of Sentences and Fines' which was transmitted to the probation officer. This document, though not a grand jury document, was admitted by the government to contain information within the purview of the grand jury secrecy provision of Rule 6(e) of the Federal Rules of Criminal Procedure. That rule provides in pertinent part:

'Secrecy of Proceedings and Disclosure. Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding * * *.'

The government, however, recognized the propriety of the district court judge exercising his discretion to permit the defense counsel to inspect the memorandum so long as the memorandum was filed under seal in the criminal cases. The criminal cases were subsequently concluded with the imposition of sentences.

Prior to the termination of the criminal proceedings, six private treble damage suits had been commenced against those defendants who had been indicted for criminal violations of the Sherman Act. Subsequent to the imposition of sentences in the criminal proceedings, plaintiffs in the civil actions sought access to the above mentioned government memorandum. To this end, the private plaintiffs served a deposition subpoena duces tecum on Stanley E. Disney, Chief of the Los Angeles Office of the Antitrust Division. The government responded by requesting by motion that Judge Stephens modify the sealing order so as to permit plaintiffs access to the memorandum and to allow for the quashing of the subpoena duces tecum that had been served on Mr. Disney. The matter came before Judge Stephens who, on his own initiative, transferred the motion for hearing before Judge Harry C. Westover, before whom the civil antitrust cases were pending.

Judge Westover ruled that the sealing order should be vacated and the subpoena quashed. One October 6, 1964, an order to this effect was entered.

The question presented for our consideration is whether the district court in so ordering disclosure, committed an abuse of discretion in permitting civil plaintiffs access to a government memorandum which had been sealed because of its references to grand jury proceedings.

A preliminary matter is raised in the brief of respondents (plaintiffs in the pending civil actions). They contend that the government memorandum is not in any way protected by the cloak of secrecy of Rule 6(e). The essence of respondents' argument is that Rule 6(e) was intended only to protect the actual transcript of the grand jury proceedings. We do not read Rule 6(e) in so limited a manner. Under respondents' construction of the Rule, any document prepared after the grand jury proceedings-- even a detailed summary or other exact reiteration of what transpired before the grand jury-- would be outside the protection of Rule 6(e). Such a construction would


To continue reading