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, and consumer protection cases, often parallel or follow criminal proceedings brought in state or federal court. If criminal charges are pending or anticipated against a witness or party in your civil case, they may invoke their constitutional privileges in refusing to provide discovery, may disappear, or may simply refuse to appear for deposition. In such cases, access to grand jury transcripts and the ability to use them become crucial to proving your case or defense. To obtain grand jury transcripts a civil litigant must show a particularized need for access to such materials outweighing the need for continued secrecy of the grand jury proceeding and that the request for access is structured to cover only materials that are needed. A mere showing that such materials are relevant or would be useful is not enough.1

II.

GROUNDS FOR SECRECY OF GRAND JURY PROCEEDINGS Historically, our federal and state courts have universally recognized several grounds for

maintaining the secrecy of grand jury proceedings. These include preventing detection and escape by those who may be indicted; insuring freedom to the grand jury in its deliberations; preventing targets and their associates from tampering with grand jurors or witnesses and suborning perjury; encouraging the free disclosure of information by people having knowledge

of crimes; and protecting those who are not indicted from publication of the fact that they are the subject of a grand jury investigation.2

Rule 6(e)(2) of the Federal Rules of Criminal Procedure encompasses the general rule of secrecy in providing that any grand juror, interpreter, stenographer, operator of a recording device, or typist who transcribes reported testimony, and any attorney for the government or any person to whom disclosure is made shall not disclose matters occurring before the grand jury, except as otherwise provided for . The rule goes on to provide that a knowing violation may be punished as a contempt of court.3 The rule, however, contains certain exceptions. The exception permitting disclosure of grand jury transcripts to third parties is found at Rule 6(e)(3) (C)(i) which provides that disclosure of matters occurring before the grand jury may be made when so directed by a court preliminary to or in connection with a judicial proceeding. The policy of secrecy surrounding grand jury proceedings, however, is not absolute. It is designed to protect from disclosure only the essence of what takes place in the grand jury room, in order to preserve the freedom and integrity of the deliberative process.4 The standard for establishing a right to disclosure under Rule 6(e) is not an excessive one, but rather is a highly flexible one, adaptable to different circumstances and sensitive to the fact that the requirements of secrecy are greater in some situations than in others.5 The Jencks Act6 and Rule 26.2 of the Federal Rules of Criminal Procedure require that after a witness has testified at a criminal trial on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the government or the defendant to produce for examination and use of the moving party any statements of the witness that are in their possession relating to the

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subject matter concerning which the witness has testified. Such statements include transcripts of testimony before the grand jury.

(A)

Preventing Detection and Flight Before Indictment

Perhaps most fundamental to the need to keep grand jury proceedings secret is the fear that, should a target be notified of the grand jury investigation or a possible indictment, he or she will flee. One need only glance at the newspapers nowadays to see how disclosure of grand jury proceedings may adversely effect the significant law enforcement and public interest in investigating crimes and prosecuting suspects. Such need for secrecy, of late, however, has been somewhat curtailed in light of the trend toward informing suspects that they are targets of grand jury investigations. Where the prosecution so tips its hand, the interests of maintaining grand jury secrecy so as to avoid detection and flight fade. [T]he attorney, whose name was inadvertently mentioned in open court, in all probability was aware that he was a target of the investigation because such targets are often notified by letter from the United States Attorney7 With the modern development of technology and expansion of the media comes an increased likelihood that targets will learn that they are the subject of a grand jury investigation prior to indictment. Prior publication by the media also plays against the need for secrecy to avoid risk of flight.

(B)

Protecting Innocent People From Stigma, and Damage to Reputation

In England, grand jury proceedings were originally public so as to enable the Crown to exert pressure on the jurors.8 Eventually, grand jury proceedings there were made private and

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the grand jury sat by themselves hearing witnesses one at a time with noone else being present except the solicitor for the prosecutor if he was admitted.9 That practice was followed in Colonial Massachusetts until statutes were enacted permitting district attorneys, stenographers, etc., to be present.10 The grand jury as known to the common law always has been regarded as a bulwark of individual liberty and a fundamental protection against despotism and persecution.11 Courts recognize concerns that the release of grand jury transcripts may harm the future relationships of witnesses in the business community12 and have traditionally emphasized the need to protect individuals from the notoriety and disgrace associated with being the subject of a grand jury investigation as justifying keeping such proceedings secret.13 This rule of secrecy imposed on the hearings and deliberations of the grand jury derives from two significant considerations. The first is a decision to save individuals from notoriety unless probable cause is found against them and an indictment is returned and disclosed.14 The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense and anxiety of a public trial, before a probable cause is established by the presentment and indictment of a grand jury, in case of high offences, is justly regarded as one of the securities to the innocent against hasty, malicious, and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty.15 The above quotation is a declaration and decision that the Twelfth Article of the Bill of Rights in part was aimed and intended to prohibit the scandal and disgrace of a trial in public of persons charged with infamous crimes and offences when, in truth, there was no sufficient cause to suspect their guilt.16

(C)

Preventing Witness Tampering, Subornation of Perjury, Intimidation, and Outside Influence, and Insuring Freedom to the Grand Jury In Its Deliberations

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Preventing subornation of perjury or witness tampering is also a policy consideration behind maintaining the secrecy of grand jury proceedings. That concern, however, is diminished once a grand jury has disbanded and trial on any indictment it returned has completed. After the grand jury has been discharged, the temporary guarantee of secrecy ends and disclosure is proper where required in the interest of justice.17 Our courts have long recognized the special significance in shielding grand jury proceedings from any outside influences having the potential to distort its investigatory or accusatory functions.18 Such extraneous influences include the news media as well as law enforcement personnel.19 The attendance of a police officer would afford opportunity for subjecting witnesses to fear or intimidation, for preventing freedom of full disclosure by testimony, and for infringing the secrecy of the proceedings.20 (D) Encouraging Full Disclosure by People Having Information About the Commission of Crimes

Maintaining secrecy of grand jury proceedings is designed, in part, to encourage full and free disclosure of information concerning the commission of a crime.21 The promotion of many of these interests, especially the encouragement of witnesses to come forward and testify freely, requires courts, including this court, to consider not only the immediate effects [of disclosure] upon a particular grand jury, but also the possible effect upon the functioning of future grand juries. Persons called upon to testify will consider the likelihood that their testimony may one day be disclosed to outside parties. Fear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties Thus, the interests in grand jury secrecy, although reduced, are not eliminated merely because the grand jury has ended its activities. [I]t is reasonable to think that potential grand jury witnesses, recognizing that at a future time pressure may be exerted on them to consent to the publication of their testimony, will either refuse to come forward or will tailor their testimony in view of that possibility . We conclude, therefore, that a rule that would

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warrant an order of disclosure of grand jury proceedings where consent has been given, even by all those directly and immediately effected, would be unwise because it would disserve the important public interests of encouraging free disclosure of information to the grand jury and free deliberations.22 Our courts also recognize, however, that in revealing damaging evidence before a grand jury a witness must expect that such evidence will ultimately be disclosed in open court at trial. Thus, some courts have held that any hesitancy that a witness might have in divulging harmful evidence before the grand jury ordinarily would be based upon the fear of the eventual necessity of giving that same evidence in open court rather than the fear that, having once given such harmful evidence, his grand jury testimony might be divulged and that disclosure of prior grand jury testimony will not unduly discourage free statements by witnesses before the grand jury.23

II.

FACTORS SHOWING A PARTICULARIZED NEED FOR ACCESS TO GRAND JURY TRANSCRIPTS Notwithstanding the longstanding rule of secrecy regarding access to transcripts of

testimony of witnesses who appeared before the grand jury, our courts recognize a number of factors tending to establish a particularized need for such materials weighing against the policy considerations for maintaining secrecy.

(A)

Refusal of Witness to Testify at Deposition or Trial

The fact that a witness refused to testify at deposition or the trial of a civil case, having previously testified before a grand jury, is considered in determining whether a civil party has made a showing of particularized need for disclosure of grand jury transcripts. The plaintiffs go further and point out that Martin, Rathke and Packard are key witnesses for any price fixing

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conspiracy allegation and have stymied discovery by their use of the fifth amendment This showing alone, however, would still leave the plaintiffs short of carrying their burden.24 [B]ut it should be noted that the Screws court did not require or find sufficient a finding that the fifth amendment had been used to stymie discovery before the grand jury minutes could be discovered.25 Although it is clear beyond dispute that the grand jury may not be used as a vehicle for civil discovery, a government subpoena for a grand jury investigation seeking documents does not insulate such documents from their use in a related civil case especially where a witness refused to provide such documents at deposition invoking privilege against selfincrimination.26 [T]he court is convinced that diligent discovery without access to the transcripts has not, will not, and cannot succeed in presenting sufficient facts to a jury to enable it to make any kind of informed decision as to the issues in this case. The Fifth Amendment wall is too high, too broad, and too thick.27 Accordingly, where a civil litigant is unable to obtain testimony or documents through discovery as a result of invocations of the privilege against self-incrimination of witnesses who have testified before, or provided documents to, the grand jury, this is one factor that our courts weigh in determining whether a party has met its burden of showing a particularized need for grand jury transcripts.

(B)

Refreshing Recollection and Impeaching Witness With Prior Inconsistent Statements

One often encounters at deposition or trial a witness who is unable to recollect prior events either legitimately or otherwise. Another frequently encountered event occurs when a witness, while on the stand at trial, testifies differently than he or she did either at deposition, at a

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prior hearing, or before the grand jury. Our courts have considered such scenarios in determining whether a civil litigant has met the burden of showing a particularized need for grand jury transcripts. The plaintiffs need becomes more particularized and compelling when it becomes evident that the transcripts are essential to assure the accuracy of testimony at trial .28 [E]very experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls precious memory.29 It has also been held that where no grand jury minutes exist, a prosecutor may be permitted to testify in a civil insurance fraud case as to his recollection of what the defendants had previously said before the grand jury regarding the value of goods allegedly lost in fire in an effort to assure the accuracy of testimony at trial.30

Particularized need would be shown, no doubt, when it was admitted or somehow demonstrated that the grand jury testimony contradicted in a material way the testimony given by the same witness at trial, and could thus be used to impeach him or shake his credibility or refresh his memory.31 The principle of secrecy is not impaired by permitting a grand jury man, after the finding of an indictment, to testify that a witness on behalf of the prosecution testified differently on his examination before them from the testimony given by him before the jury at trial.32 The defendant did not show that grand jury minutes would cast further light as to either of the alleged inconsistencies or that the grand jury testimony might be in any other way inconsistent with Carrs testimony at trial.33

(C)

Avoiding Unfair Advantage and Equalizing Access to Relevant Facts

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Occasionally, counsel representing the adverse party in a civil case also represents that party in a criminal case resulting from an indictment. In such cases, the adverse party will likely have been provided with grand jury transcripts. This obviously provides the adverse party with an advantage in the civil litigation. Our courts recognize this to be another factor to be considered in determining whether a civil litigant has made a showing of particularized need for access to grand jury transcripts whereas mutual knowledge of all relevant facts gathered by both parties is essential to proper litigation.34 To permit defendants to have access to grand jury transcripts and exhibits while prohibiting disclosure to the plaintiffs would be patently unfair in that it would give one side of this litigation exclusive access to a storehouse of relevant facts.35 A particularized or compelling need for access to grand jury transcripts may be based upon such an unfair advantage.36 It would be exceedingly inequitable, discriminating and contrary to the principles of federal discovery to allow one party access to grand jury transcripts, but not the remaining parties.37 The need for access becomes more particularized and compelling when transcripts are essential to equalize access to relevant facts.38 [P]articularized need becomes strong both for purposes of trial preparation and for trial itself, when there has been prior unlimited release to one party in the litigation of the grand jury transcript and materials. In that case, disclosure is in order not merely to assure the accuracy of the testimony, but also to equalize the access to relevant facts which each side possesses and to eliminate the obvious unfair advantage, arising from affording only one side exclusive access to a storehouse of relevant fact. Beyond this, it is contrary to the wholesome spirit of modern federal procedure to deny one party evidence available to the other party. Such a procedure is too much like providing arms to one adversary and denying it to the other.39 (D) Extensive Prior Disclosure of Grand Jury Testimony

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Where there has been prior publication of a grand jury investigation, this weakens, but does not eliminate, the policy considerations behind maintaining the secrecy of such proceedings. A publicly filed complaint or extensive press conference undoubtedly will reveal certain facts, including probably the target of the investigation, but in the majority of cases, the records will contain additional information that need not be made public. Thus, because we cannot conclude that as a general matter the release of no bill records would be beneficial to the functioning of the system, we hold that there is no first amendment right to access of such records.40 The end of a grand jury inquiry reduces the interests in grand jury secrecy . The interests in secrecy are reduced further by numerous media reports with details of the scheme and the names of its participants, including the defendants in the civil case. The need for continued secrecy is therefore minimal.41

Accordingly, in determining whether to grant a civil litigant access to grand jury transcripts, courts will consider whether there has been extensive prior publication of the investigation and to what degree such prior disclosure militates against the traditional grounds for maintaining grand jury secrecy and reduces a civil litigants burden of showing a particularized need for such transcripts.

(E)

Disbanding of Grand Jury

After a grand jury has disbanded, the interests of grand jurys secrecy, although reduced, are not eliminated.42 After grand jury has been discharged and an indictment has been returned, there no longer exists a risk that the target of the grand jury investigation will flee due to prior notification. Nor does there exist any risk of the grand jury feeling constrained in its

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deliberations or that grand jurors will be tampered with. Nor does the need to protect those who are not ultimately indicted from publicity exist. Additionally, the disclosure of information by people having knowledge of a particular crime need not be protected whereas the grand jury testimony has been completed. The rule of reason has been applied. After the indictment has been returned or the investigation ended, there is little or no reason for continuing the rigid rule of secrecy.43 However, privacy concerns still exist after a grand jury has disbanded. The likelihood that potential grand jury witnesses will consider the possibility that their testimony may be disclosed to outside parties after discharge of the grand jury and any concomitant fear of retribution or social stigma may cause reluctance to testify before the grand jury in the first place. This militates in favor of maintaining grand jury secrecy even after grand juries have disbanded.44 Thus, although the temporary guarantee of grand jury secrecy ends once a grand jury is discharged and, although disclosure of grand jury testimony may be proper where required in the interest of justice, the mere fact that a grand jury has disbanded does not automatically mean that transcripts from testimony for that grand jury will be made available to civil litigants.

IV.

CONCLUSION In England, as well as in the United States, grand jury proceedings have always been

shrouded in secrecy. Historical grounds for maintaining secrecy remain vital today notwithstanding the fact that access to grand jury minutes may be essential to civil litigants preparing for trial. It is now well settled that disclosure rather than suppression of relevant materials in grand jury minutes ordinarily promotes the proper administration of justice, both civil and criminal, and it is no longer necessary in every case for the trial judge, like a fussy hen,

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to scratch through the grand jury transcripts in camera before permitting disclosure of relevant testimony therein.45 Civil litigants seeking access to grand jury transcripts bear the burden of showing a particularized need for such materials outweighing the continued need for secrecy and that the request for access is structured only to cover the materials needed. Factors considered by our courts in determining whether civil litigants have shown a particularized need for grand jury transcripts include whether witnesses who have testified before the grand jury have refused to testify during discovery or at trial in a civil case; whether grand jury transcripts are necessary to refresh witnesses recollections or impeach their credibility via prior inconsistent statements; whether one side in the civil case has been provided with grand jury transcripts; whether there has been prior publication of the grand jury investigation; and whether the grand jury has been discharged. In determining whether to grant civil litigants access to grand jury transcripts our courts continue to analyze cases on an individual basis weighing the traditional grounds for maintaining grand jury secrecy against those factors showing a particularized need for such transcripts. There exist no hard and fast rule as to when, or under what circumstances, access will be granted and such decisions will continue to depend upon the facts of each particular civil case wherein access to grand jury transcripts is requested.

ENDNOTES

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12

Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 99 S. Ct. 1667 (1979); In Re: Grand Jury Criminal

Indictments 76-149 and 77-72, 469 F. Supp. 666 (M.D. Pa. 1978)

U.S. v. Procter & Gamble Co., 356 U.S. 677, 78 S. Ct. 983, 986 n.6 (1958); In Re: Grand Jury Subpoena, 103 F.3d 234

(2nd Cir. 1996); Fund for Constitutional Government v. National Archives and Record Service, et al, 656 F.2d 856 (D.C. Cir. 1981); In Re: Disclosure of Testimony Before the Grand Jury, 580 F.2d 281 (8th Cir. 1978); In Re: Grand Jury Proceedings, 800 F.2d 1293 (4th Cir. 1986)

Rule 6(e)(2) Fed. R. Crim. P.; United States v. Eastern Airlines, Inc., 923 F.2d 241 (2nd Cir. 1991) (The rule of secrecy

forbids disclosure of matters occurring before the grand jury).

In Re: Grand Jury Proceedings Relative to Norman Perl, 838 F.2d 304 (8th Cir. 1988) (Access to documents granted to

civil plaintiffs suing former attorneys).

United States v. Sells Engineering, Inc., 463 U.S. 418, 103 S. Ct. 3133, 3149 (1983); See also In Re: Grand Jury

Proceedings, GJ-76-4 & GJ-75-3, 800 F.2d 1293 (4th Cir. 1986) (Access to grand jury transcripts and documents provided to government in civil cases); See also In Re: Request for Access to Grand Jury Materials Grand Jury No. 81-1, Miami, 833 F.2d 1438 (11th Cir. 1987) (Recognizing that the standard for permitting access to grand jury materials is highly flexible and sensitive to the fact that the need for secrecy is greater in some situations than others).
6

18 U.S.C., 3500, et seq

In Re: Charlotte Observer, Petitioner, 921 F.2d 47 (4th Cir. 1990) (Injunction preventing newspaper from publishing name

of grand jury investigation target that was erroneously uttered by judge in open court vacated. On the present record, however, the cat is out of the bag.).

Opinion of the Justices, 373 Mass. 883, 371 N.E.2d 422 (1977)

1 Stephens History of the Criminal Law of England, 274

10

Commonwealth v. Harris, 231 Mass. 584, 121 N.E. 409, 410 (1919)

11

Lebowitch v. Commonwealth, 235 Mass. 357, 126 N.E. 831 (1920)

12

In Re: Screws Anti Trust Litigation, 91 F.R.D. 47 (D. Mass. 1981)

13

In Re: John Doe Grand Jury Investigation, 415 Mass. 727 (1993)

14

Commonwealth v. Pezzano, 387 Mass. 69, 438 N.E.2d 840 (1982), quoting Opinion of the Justices, 373 Mass. at 919

(1977)

15

Jones v. Robbins, 8 Gray 329 (1857)

16

Commonwealth v. Harris, 231 Mass. 584 (1919)

17

Herman Schwabe, Inc. v. United Shoe Machinery Corp., 194 F. Supp. 763 (D. Mass. 1958) (Grand jury transcripts

provided to defense in civil case regarding prior grand jury testimony of plaintiff).

18

Opinion of the Justices, 373 Mass. at 918 (1977)

19

WB2-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 562 N.E.2d 817 (1990)

20

Commonwealth v. Pezzano, et al, 387 Mass. 69, 438 N.E.2d 841, 845 (1982) (Unauthorized presence of police officer

before grand jury required dismissal of indictments even in the absence of a showing of prejudice to the defendants).

21

Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 n.10 (1979); State of Texas v. United States Steel Corp.,

546 F.2d 626 (5th Cir. 1977) (Access to grand jury transcripts denied); In Re: Grand Jury, 469 F. Supp. 666 (M.D. Pa. 1978) (Access to grand jury transcripts denied to civil plaintiffs, in part, because future grand jury witnesses would be reluctant to testify before grand jury knowing that their names may be released).

22

In Re: John Doe Grand Jury Investigation, 415 Mass. 727 (1993) (Access to video and audiotapes regarding grand jury

lineup and interviews denied even where grand jury had disbanded, criminal prosecutions had concluded, many details of lineup has been publicly disclosed and consent of interested parties was obtained).

23

United States v. Hughes, 413 F.2d 1244 (5th Cir. 1969) In Re: Screws Anti Trust Litigation, 91 F.R.D. 47, 49 (D. Mass. 1981)

24

25

Halperin v. Berlandi, 114 F.R.D. 8, 14 (D. Mass. 1986) (Permitting access to grand jury transcripts to plaintiffs in civil

RICO case).

26

Capitol Indemnity Corp. v. First Minnesota Construction Co., et al, 405 F. Supp. 929 (D. Mass. 1975)

27

In Re: Corrugated Container Antitrust Litigation, 687 F.2d 52 (5th Cir. 1982) (Access to grand jury transcripts granted to

civil plaintiffs where witnesses invoked Fifth Amendment privilege against self-incrimination at deposition).

28

In Re: Screws Anti Trust Litigation, 91 F.R.D. 47, 49-50 (D. Mass. 1981); In Re: Grand Jury Proceedings, 800 F.2d 1293

(4th Cir. 1986); State of Illinois v. Sarbaugh, 552 F.2d 768 (7th Cir. 1977) (Access granted to State of Illinois in civil antitrust suit).

29

In Re: Catfish Antitrust Litigation, 164 F.R.D. 191 (N.D. Miss. 1995) (Access to grand jury minutes granted to civil

plaintiffs in antritrust cases).

30

New Hampshire Fire Insurance Co. v. Healy, et al, 151 Mass. 537, 24 N.E. 913 (1890)

31

Commonwealth v. Stewart, 365 Mass. 99 (1974) (Relating to particularized need by a defendant in criminal case); See

also United States v. Socony-Vacuum Oil Co., Inc., et al, 310 U.S. 150, 60 S. Ct. 811 (1940); State of Illinois v. Harper & Row Publishers, Inc., et al, 50 F.R.D. 37 (N.D. Ill. 1969) (During depositions in civil antitrust case witnesses demonstrated

remarkable lack of memory concerning critical events. Therefore, plaintiff was granted access to transcripts of their grand jury testimony).

32

Commonwealth v. Harris, 231 Mass. 584 (1919) (Regarding criminal case)

33

Commonwealth v. DeChristoforo, 360 Mass. 531 (1971) (No particularized need shown by criminal defendant for grand

jury transcripts prior to repudiation of particularized need requirement in criminal cases in Massachusetts).

34

Hickman v. Taylor, 329 U.S. 495 (1947); United States v. Hughes, 413 F.2d 1244 (5th Cir. 1969) (Alleged violations of

securities and antitrust acts often resembles the most complex cases, necessitating a vigorous probing of the mass of detailed facts to seek out the truth); See also In Re: Grand Jury Investigation, State of Missouri, 55 F.3d 350 (8th Cir. 1995) ((Recognizing that cost of savings in terms of both time and money is a valid consideration in determining whether civil plaintiff has shown particularized need for grand jury materials).

35

Dennis v. United States, 348 U.S. 855, 86 S. Ct. 1840 (1966); U.S. Industries, Inc. v. United States District Court, 345

F.2d 18 (9th Cir. 1965) (Access to presentence memorandum provided to civil plaintiffs because it would be highly inequitable and averse to the principles of federal discovery to allow one party access to a government document and not the other); State of Illinois v. Sarbaugh, 552 F.2d 768 (7th Cir. 1977); In Re: Catfish Antitrust Litigation, 430 F. Supp. 639 (N.D. Miss. 1995), citing United States v. Fischbach & Moore, Inc., 776 F.2d 839 (9th Cir. 1985) (One partys possession of grand jury transcripts necessarily favors disclosure to the opposing party as a matter of fairness and because there is a lesser interest in secrecy after initial disclosure).

36

In Re: Screws Anti Trust Litigation, 91 F.R.D. 47 (D. Mass. 1981)

37

Securities and Exchange Commission v. National Student Marketing Corp., et al, 430 F. Supp. 639 (D.C. 1977) Halperin v. Berlandi, 114 F.R.D. 8 (D. Mass. 1986)

38

39

In Re: Grand Jury Proceedings, 800 F.2d 1293 (4th Cir. 1986) (Access to grand jury transcripts granted to government in

civil case).

40

Globe Newspaper Company, et al v. Pokaski, et al, 868 F.2d 497 (1st Cir. 1989) (Access to records where no indictment

was returned denied even where grand jury proceeding is preceded by a public event such as press conference or publicly filed complaint)

41

In Re: Grand Jury Investigation, 55 F.3d 350 (8th Cir. 1995) Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979); In Re: Grand Jury Investigation, State of Missouri, 55

42

F.3d 350 (8th Cir. 1995); In Re: Grand Jury Subpoena, 103 F.3d 234 (2nd Cir. 1996); United States v. Socony-Vacuum Oil Co., Inc., et al, 310 U.S. 150, 60 S. Ct. 811 (1940); In Re: Grand Jury Proceedings Relation to Norman Perl, 838 F.2d 304 (8th Cir. 1988).

43

Palmentere v. Campbell, et al, 205 F. Supp. 261 (W.D. Mo. 1962) (Recognizing that both state and federal courts are

moving in the direction of relaxing rigid rules of secrecy); In Re: John Doe Grand Jury Investigation, 415 Mass. 727 (1993); In Re: Disclosure of Testimony Before The Grand Jury, 580 F.2d 281 (8th Cir. 1978) ([T]he grand jury had ceased its gambling investigation. Therefore, there is presently no need to protect against an accused escaping before he is indicted and arrested. There is no risk of tampering with the witnesses. There is no risk of inhibiting the grand jurys investigation and deliberation. In sum, several of the reasons for grand jury secrecy are not operable here.); State of Illinois v. Sarbaugh, 552 F.2d 768 (7th Cir. 1977) (When grand jury has completed its work several of the reasons for secrecy no longer remain); In Re: Catfish Antitrust Litigation, 164 F.R.D. 191 (N.D. Miss. 1995) (Civil plaintiffs granted access to grand jury transcripts in antitrust case after criminal investigation had concluded); Herman Schwabe, Inc. v. United Shoe Machinery Corp., 194 F. Supp. 763 (D. Mass. 1958) (Access to grand jury minutes provided to civil litigant ten years after grand jury was discharged).

44

Globe Newspaper Co., et al v. Pokaski, et al, 868 F.2d 497 (D. Mass. 1989) (Access denied even though grand jury had

disbanded); In Re: John Doe Grand Jury Investigation, 415 Mass. 727 (1993).

45

State of Illinois v. Harper & Row Publishers, Inc., et al, 50 F.R.D. 37 (N.D. Ill. 1969), quoting, State of Washington v.

American Pipe & Const. Co., 41 F.R.D. 59 (S.D. Cal. 1966).