Petition of Moore
| Decision Date | 04 November 1985 |
| Docket Number | Nos. 85-2684,85-2709,s. 85-2684 |
| Parties | In re Petition of Elizabeth L. MOORE, executrix of the estate of Colvert E. Moore, deceased. Appeals of VELSICOL CHEMICAL CORPORATION, David M. Whitacre, Edwin I. Goldenthal and Robert G. Geil, Robert Morris and Dr. William MacDonald, Neil R. Mitchell, Alfred A. Levin, Bernard Lorant, and Williams & Connolly, Kenneth Schulz, Harvey S. Gold, John C. Tapas, Charles J. Calo, Paul M. Newberne. to 85-2713, 85-2731, 85-2733, 85-2756, 85-2760 and 85-2808. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before BAUER, ESCHBACH, and POSNER, Circuit Judges.
We have before us motions to stay, pending appeal, an order by the chief judge of the Northern District of Illinois directing the clerk of the district court to ship the transcript of some of the testimony given before a federal grand jury to a district judge in Connecticut who is presiding over a products liability suit to which the testimony may be relevant. With the trial of that suit scheduled to begin on October 15, we decided to accelerate our consideration of the appeal, to treat the briefs that the parties had filed in support of and opposition to the motions for stay as their briefs on the merits (the issue on the merits being straightforward, as we shall see), and to decide the appeal without oral argument.
The first question is whether we have jurisdiction. Rule 6(e)(3)(D) of the Federal Rules of Criminal Procedure allows the filing, in the district where the grand jury sat, which in this case is the Northern District of Illinois, of a petition for disclosure of matters that occurred before the grand jury. Subsection (E) provides that if the suit in connection with which disclosure is sought is in another district, the court in which the petition is filed, the grand jury court as it were, "shall transfer" the petition to the other court "unless it can reasonably obtain sufficient knowledge of the proceeding [in that court] to determine whether disclosure is proper." If the court decides to make the transfer, it shall, in the further words of subsection (E), "order transmitted to the court to which the matter is transferred the material sought to be disclosed, if feasible, and a written evaluation of the need for continued grand jury secrecy." As explained in the Advisory Committee's extensive notes to the 1983 amendments to Rule 6, which added subsection (E), the transferee court is to make the ultimate decision whether to disclose, based on its own determination of the need for disclosure and the transferring court's evaluation of the competing need for continued secrecy. The chief judge of the Northern District of Illinois, having received the appellee's petition for disclosure of testimony before the grand jury for use in her products liability suit in Connecticut, decided to transfer the matter to the district court in Connecticut, and issued the order that the appellants seek to appeal from. The appellants, who include the defendant in the Connecticut suit and the witnesses whose grand jury testimony the appellee wants, complain that the chief judge did not make the required evaluation of the continued need for secrecy.
If the order to transfer the matter to the district court in Connecticut were an order actually to disclose grand jury documents or testimony--even to disclose them in a proceeding before the ordering judge--it would clearly be appealable despite the general policy against interlocutory appeals of discovery orders, for reasons explained in Illinois v. F.E. Moran, Inc., 740 F.2d 533, 535-38 (7th Cir.1984). One of those reasons is that there is no criminal proceeding which might be interrupted and delayed by an appeal from an order respecting the use of grand jury testimony in the proceeding. See id. at 538. The appellee (the plaintiff in the Connecticut suit) argues however that the order in this case is not a final order from which an appeal can lie, because the appellants cannot be harmed until the grand jury testimony is actually disclosed, a matter within the power of the Connecticut district judge to be exercised after he receives the testimony and weighs the competing needs for secrecy and for disclosure. The appellants on the other hand rely on our decision in In re Grand Jury Proceedings, Miller Brewing Co., 687 F.2d 1079, 1085 (7th Cir.1982), which allowed an appeal to be taken from an order transferring grand jury transcripts to the United States Tax Court. But Miller is distinguishable from the present case because there the district court had ordered disclosure of some documents as well as the transfer of the transcripts, and we treated the order as a single order and stressed the disclosure aspect without separate discussion of the transfer aspect.
And against Miller must be set In re 1975-2 Grand Jury Investigation of Associated Milk Producers, Inc., 566 F.2d 1293 (5th Cir.1978), cited in the Advisory Committee's notes to the 1983 amendments for the proposition that transfer orders are not appealable, and an earlier case which reached the same result, Baker v. United States Steel Corp., 492 F.2d 1074, 1078-79 (2d Cir.1974). The orders in those cases, however, shifted decision on all aspects of disclosure to the transferee court. (This was before the promulgation of Rule 6(e)(3)(E), which requires the transferring court to evaluate the need for continued secrecy.) The courts of appeals therefore viewed the orders as purely ministerial in character--as not affecting any substantive rights of the parties but just as changing the decision-maker from one federal judge to another. See 566 F.2d at 1300-01; 492 F.2d at 1078. Therefore no one was "aggrieved" by the order as that word is used in legal discussion (of course as a practical matter the identity of the deciding judge can affect the outcome of a case). Here the appellants are aggrieved by a determination which, though not final, may influence the district court in Connecticut, perhaps decisively, against their cause. In such a case In re Grand Jury Proceedings at Chattanooga, 649 F.2d 387, 388 (6th Cir.1981), allowed an immediate appeal.
Thus it does not seem that we can treat the question of appealability as having been authoritatively resolved by previous cases; but...
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