Doe v. Cabrera

• Decision Date: 04 September 2015
• Docket Number: Civil Action No. 14–1005 (RBW)
• Citation: 126 F.Supp.3d 160
• Parties: Jane Doe, Plaintiff, v. Alfredo Simon Cabrera, Defendant.
• Court: U.S. District Court — District of Columbia

126 F.Supp.3d 160

Jane Doe, Plaintiff,

v.Alfredo Simon Cabrera, Defendant.

Civil Action No. 14–1005 (RBW)

United States District Court, District of Columbia.

Signed September 4, 2015

Andrew G. Slutkin, Christopher J. Mincher, Steven J. Kelly, Silverman, Thompson, Slutkin & White, Baltimore, MD, Geoffrey Giles Hengerer, Office of the Governor, Annapolis, MD, for Plaintiff.

Benjamin Voce–Gardner, Zuckerman Spaeder, LLP, New York, NY, Rachel F. Cotton, Amit P. Mehta, Jon Ross Fetterolf, Zuckerman Spaeder, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

This civil matter came before the Court on the defendant's Renewed Motion for Disclosure of Jane Doe's Grand Jury Testimony ("Def.'s Renewed Mot."). The motion was orally granted by the Court at a hearing conducted on August 5, 2015. See August 6, 2015 Order (memorializing ruling from previous day's hearing), ECF No. 72. This Opinion serves to provide the legal justification for the Court's decision and supplements the record of the hearing.¹

I. BACKGROUND

According to the plaintiff, in April 2013, she was sexually assaulted by the defendant at a hotel in the District of Columbia.² Doe v. Cabrera, 307 F.R.D. 1, 2–3 (D.D.C.2014). Thereafter, the alleged assault was investigated by the District of Columbia Metropolitan Police Department, as well as the United States Attorney's Office for the District of Columbia ("USAO"). Def.'s Mem. at 2–3. The investigation resulted in the USAO "initiat [ing] a ... grand jury investigation into [the] [p]laintiff's accusations" during which the plaintiff presented testimony. Id. at 1. Ultimately, the USAO declined to prosecute the defendant, id. at 3, and the plaintiff instituted this civil action against the defendant to recover monetary damages for the injuries she allegedly sustained from the alleged assault, see Doe, 307 F.R.D. at 2–3.

On December 10, 2014, the defendant moved to obtain the transcript of the plaintiff's grand jury testimony. Def.'s Mot. at 1–2. But consistent with case authority, the Court denied the defendant's motion without prejudice, reasoning that the defendant must first petition the Superior Court of the District of Columbia ("Superior Court") for disclosure of the plaintiff's grand jury testimony, as that was the court where the grand jury was convened. June 10, 2015 Order at 2–4, ECF No. 56.

On June 15, 2015, the defendant petitioned the Superior Court, seeking the disclosure of the plaintiff's grand jury testimony. Notice, Exhibit ("Ex.") A (Order, Doe v. Cabrera, No. 2015 GJRSLD 132 (D.C.Super.Ct. July 17, 2015) ("Superior Court Order")) at 1. Although the Superior Court deferred to this Court on a final ruling as to whether the plaintiff's grand jury testimony should be disclosed to the defendant, it nevertheless ordered the USAO to produce a copy of the transcript of the plaintiff's grand jury testimony to the Court so that it can completely resolve the issue. Id. at 3. In doing so, the Superior Court also advised the Court that, inter alia, "the need for continued grand jury secrecy is minimal in this case." Id. at 1. The defendant then renewed his motion for an Order from this Court requiring the disclosure of the plaintiff's grand jury testimony pursuant to Federal Rule of Criminal Procedure 6(e). Def.'s Renewed Mot. at 1–2.

II. LEGAL STANDARD

Under Federal Rule of Criminal Procedure 6, a "court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs–of a grand-jury matter ... preliminarily to or in connection with a judicial proceeding...." Fed.R.Crim.P. 6(e)(3)(E)(i). Specifically, "[p]arties seeking grand jury transcripts ... must show [:] [ (1) ] that the material they seek is needed to avoid a possible injustice in another judicial proceeding[;] [ (2) ] that the need for disclosure is greater than the need for continued secrecy[;] and [ (3) ] that their request is structured to cover only material so needed." Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). This showing must be made "with particularity." United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). "[T]he typical showing of particularized need arises when a litigant seeks to use ‘the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility and the like.’ " Douglas Oil, 441 U.S. at 222 n. 12, 99 S.Ct. 1667 (quoting Procter & Gamble, 356 U.S. at 683, 78 S.Ct. 983 ). "Such use is necessary to avoid misleading the trier of fact." Id. And "a court called upon to determine whether grand jury transcripts should be released necessarily is infused with substantial discretion." Id. at 223, 99 S.Ct. 1667 (citing Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959) ).

III. ANALYSIS

Consideration of each of the factors set forth in Douglas Oil, as well as an in camera inspection of the plaintiff's grand jury testimony,³ leads the Court to the inescapable conclusion that the transcript of the plaintiff's grand jury testimony must be provided to the defendant.

A. Whether Disclosure Will Avoid Injustice

First, the plaintiff does not contend that there would be no injustice here if the defendant were denied access to the plaintiff's grand jury testimony. Nor could the plaintiff advance such a position as there appear to be some inconsistencies between her allegations in this case and what she told the grand jury.⁴ If justice is to be done in this case, these conceivable inconsistencies must be assessed by a jury. Moreover, because the plaintiff contends that she cannot recall with particularity her grand jury testimony, see Def.'s Renewed Reply at 4 n.2; Def.'s Renewed Reply, Ex. B (Deposition Transcript of Jane Doe ("Doe Dep. Tr.")) at 356:3–358:10 (plaintiff testifying, inter alia, that she "[does not] remember [the] specifics" of her grand jury testimony), the defendant must have access to the transcript of that testimony, so that he may attempt to refresh her recollection, impeach her credibility, or bolster his defense with what she previously said under oath. Notably, Circuits and district courts throughout the country have routinely explained that disclosure of grand jury testimony is permitted in similar circumstances. E.g., In re Special Grand Jury 89–2, 143 F.3d 565, 571 (10th Cir.1998) ("The reality of the [particularized] need [for grand jury testimony] can be shown by pointing to actual inability to recall relevant information or examples of inconsistent testimony on material issues."); In re Grand Jury Testimony, 832 F.2d 60, 63 (5th Cir.1987) ("We and other courts have read Douglas Oil to require that a party seeking disclosure for impeachment or refreshment of recollection of witnesses first demonstrate actual inability to recall or inconsistent testimony."); In re Fed. Grand Jury Proceedings, 760 F.2d 436, 439 (2d Cir.1985) ("Appellant argues that he needs the grand jury testimony of those grand jury witnesses who are scheduled to be called in the disciplinary hearings in order to refresh their recollections or impeach and otherwise test their credibility in the course of the hearings. The Supreme Court has indeed recognized that a petitioner's desire to use grand jury transcripts in subsequent proceedings for these purposes may constitute the particularized need required for disclosure."); see also In re Petition to Inspect & Copy Grand Jury Materials, 576 F.Supp. 1275, 1280 (S.D.Fla.1983) ( "[L]itigants in a ‘judicial proceeding,’ will occasionally have a ‘particularized need,’ for grand jury material to prevent an injustice in that proceeding. Thus, disclosure has been deemed proper to impeach a witness or test his credibility, or to refresh a witness' recollection." (internal citations omitted)), aff'd, 735 F.2d 1261 (11th Cir.1984) ; Pak. Int'l Airlines Corp. v. McDonnell Douglas Corp., 94 F.R.D. 566, 569 (D.D.C.1982) ( "[W]here there is some showing of a need to refresh recollection or a basis for impeaching a witness, a grand jury transcript may be produced to be used at the deposition of that witness or in cross-examination at the trial.")⁵ ; id. at 569 n. 7.

B. Whether Disclosure Outweighs Secrecy

As just discussed, there is a need for disclosure of the plaintiff's grand jury testimony to avoid a potential unjust result in this case. And this need outweighs the continuing need for secrecy of the plaintiff's grand jury testimony, which the Superior Court—the court that convened the grand jury before whom the plaintiff presented her testimony—has already found to be "minimal in this case." Notice, Ex. A (Superior Court Order) at 1; see also id. at 2 ("The policy considerations underlying grand jury secrecy are extremely weak in this particular case."). Nevertheless, the plaintiff challenges the Superior Court's secrecy analysis because it "failed to consider that [the] [p]laintiff's identity will be revealed at or prior to trial." Pl.'s Renewed Opp'n at 3. The plaintiff inexplicably argues that had the Superior Court properly taken into consideration the need to encourage witnesses to testify freely in future grand juries without fear that their testimony will later become public, the Superior Court would have ruled in her favor, maintaining the secrecy of her grand jury testimony. Id. Even assuming that this one policy consideration weighed in favor of secrecy, other policy considerations did not. See Douglas Oil, 441 U.S. at 219 n. 5, 99 S.Ct. 1667 (identifying five policy considerations); see also Notice, Ex. A (Superior Court Order) at 2–3 (other policy considerations weighed against secrecy).

And the Court is not convinced that disclosure of the plaintiff's grand jury testimony in this case will somehow discourage other potential witnesses from freely testifying before a grand jury in the future. As the Superior Court noted, the lessened...