United States v. Procter & Gamble Co., 356 U.S. 677 (1958)

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Author: Justice Harlan

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United States v. Procter & Gamble Co., 356 U.S. 677 (1958)

MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER, and MR. JUSTICE BURTON join, dissenting.

The Court reverses the judgment below without so much as adverting to what seems to me the real and only question in the case: did the District Court abuse its discretion by ordering the Government to furnish the appellees with the transcript of the grand jury proceedings?

I do not believe this question can be avoided or obscured by casting the issue in terms of whether the appellees made an adequate showing of "good cause" under Rule 34 for the discovery which they sought and gained. What constitutes "good cause" under Rule 34 necessarily turns on the facts and circumstances of each particular case, and, in the last analysis, rests within the sound discretion of the trial court. 4 Moore’s Federal Practice (2d ed. 1950) § 34.08.

Viewing the matter in this light, I do not think it can be said that the lower court was guilty of an abuse of discretion. A cursory statement of the setting in which appellees were accorded access to the grand jury transcript should suffice to make this clear. By any standards, this antitrust litigation was of great magnitude and complexity. In 1956, when discovery was ordered, the litigation had been pending for over three years, and, despite the assiduous efforts of the court to bring the issues within manageable compass, the case seems still to have been far removed from a posture where trial was in sight. The discovery order was the subject of elaborate briefing and oral argument, during the course of which the court found itself handicapped by the refusal of the Government to indicate the exact use it had made, and intended to make, of the grand jury transcript in connection with its preparation and trial of the case.{1}

In granting discovery, the District Court wrote a reasoned opinion in which it found: (1) that the Government had filed its complaint in this civil suit following an eighteen-month grand jury investigation, which had ended some four years before the discovery order without an indictment’s being returned;{2} (2) that the Government had made continuing use of the grand jury transcript in its preparation of the civil case; (3) that "the ends of justice" required that appellees be given reciprocal access to such transcript in aid of the preparation of their defense;{3} and (4) that disclosure would not, in the circumstances, violate the traditional reasons for safeguarding the secrecy of grand jury proceedings.{4}

The following quotation from the District Court’s opinion reveals its alert and sensitive concern over unnecessary disclosure of grand jury proceedings:

I realize there is a strong caveat against the needless intrusion upon the indispensable secrecy of grand jury proceedings. The reasons therefor were indelibly impressed upon we when I served as Assistant Prosecutor of my home county for ten years, where I spent the greater part of the time presenting cases to the grand jury. I realize further that a strong and positive showing should be required of persons seeking to break the seal of secrecy, which never should be done except in extreme instances to prevent clear injustice or an abuse of judicial processes. Which policy should be served here to bring about justice -- the policy requiring secrecy, or the policy permitting disclosure for discovery purposes only in the interest of justice? I believe the requirement of secrecy in this case can be safely waived and the minutes of the grand jury divulged within the limits prescribed by the law, and that the failure to do so would be an abuse of discretion and not in the furtherance of justice. Under Rule 6(e) of the Federal Rules of Criminal Procedure, our courts have, by way of interpretation, extended their jurisdiction so as to remove "the veil of secrecy" around ground jury proceedings where, in the court’s discretion, the furtherance of justice requires it. If it can be done on the criminal side, I can see no compelling reason why it cannot be safely done on the civil side in this case. I would not grant these motions if I thought they were prejudicial to the public interest, useless or unnecessary, would not reveal the information sought, or defendants already possessed all the necessary information or could obtain it by pursuing a different remedy.

The findings of the District Court as to what the procedural situation in this complicated case fairly required, made as they were by a judge who had been in charge of this case from the beginning, should not be disturbed by this Court any more lightly than findings made after a trial on the merits. Cf. United States v. Yellow Cab Co., 338 U.S. 338; United States v. Oregon State Medical Society, 343 U.S. 326.

The Court recognizes that had the Government’s grand jury investigation been instituted solely in aid of a civil suit -- that is without any thought of obtaining an indictment -- the appellees would then have been entitled to see the entire grand jury transcript. Although it may be true that no finding has been made here of such misuse of the grand jury process, I am unable to see why the case where a grand jury investigation has aborted and the Government thereafter uses the transcript solely in aid of its civil case should be treated differently. The only distinction relates to the Government’s motive in instituting the grand jury proceedings. For, in both instances, the effect on the litigation is precisely the same, and in both instances, the Government’s conduct disrespects the policy underlying 37 Stat. 731, 15 U.S.C. § 30,{5} requiring the testimony of witnesses in government Sherman Act equity suits to be taken in public. In neither type of case should the Court undertake to lay down a fixed rule concerning disclosure of grand jury transcripts, but instead should leave the matter to the sound discretion of the trial judge, to be dealt with by him in light of the particular circumstances of each case.

I fully subscribe to the view that the strong public policy of preserving the secrecy of grand jury proceedings should prevent the general disclosure of a grand jury transcript except in the rarest cases. But the inflexible rule announced today, which allows that policy to be overcome only in instances where it can be shown that the Government has "subverted" the grand jury process in the manner suggested by the Court, seems to me an unwise and unnecessary curbing of trial judges in the efficient and fair handling of the difficult problems presented by a unique type of litigation. See the Prettyman Report on Procedure in Anti-Trust and other Protracted Cases, 13 F.R.D. 62, which has been adopted by the Judicial Conference of the United States. This is particularly so in cases like the one before us, where the grand jury’s functions have long since ended. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233-234; 8 Wigmore, Evidence (3d ed. 1940), § 2362. Here as elsewhere in the realm of discretionary power appellate review should be the safeguard against abuse in particular instances, rather than the a priori imposition of rigid restrictions upon trial judges which leave them powerless to act in appropriate cases. Under the facts shown by this record, I am unable to say that the District Court abused its discretion in ordering the grand jury transcript to be made available to the appellees.

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Chicago: Harlan, "Harlan, J., Dissenting," United States v. Procter & Gamble Co., 356 U.S. 677 (1958) in 356 U.S. 677 356 U.S. 686–356 U.S. 690. Original Sources, accessed April 22, 2018, http://www.originalsources.com/Document.aspx?DocID=DCACJPPZDSBJ5FZ.

MLA: Harlan. "Harlan, J., Dissenting." United States v. Procter & Gamble Co., 356 U.S. 677 (1958), in 356 U.S. 677, pp. 356 U.S. 686–356 U.S. 690. Original Sources. 22 Apr. 2018. www.originalsources.com/Document.aspx?DocID=DCACJPPZDSBJ5FZ.

Harvard: Harlan, 'Harlan, J., Dissenting' in United States v. Procter & Gamble Co., 356 U.S. 677 (1958). cited in 1958, 356 U.S. 677, pp.356 U.S. 686–356 U.S. 690. Original Sources, retrieved 22 April 2018, from http://www.originalsources.com/Document.aspx?DocID=DCACJPPZDSBJ5FZ.