United States v. John Doe, Inc. I, 481 U.S. 102 (1987)

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Author: John Paul Stevens

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United States v. John Doe, Inc. I, 481 U.S. 102 (1987)

JUSTICE STEVENS delivered the opinion of the Court.

In United States v. Sells Engineering, Inc., 463 U.S. 418 (1983), we held that attorneys for the Civil Division of the Justice Department may not automatically obtain disclosure of grand jury materials for use in a civil suit, but must instead seek a court order of disclosure, available upon a showing of "particularized need." We explicitly left open the

issue concerning continued use of grand jury materials, in the civil phase of a dispute, by an attorney who himself conducted the criminal prosecution.

Id. at 431, n. 15. Today, we decide that open question. In addition, for the first time, we review a concrete application of the "particularized need" standard to a request for disclosure to Government attorneys.

I

In March, 1982, attorneys in the Antitrust Division of the Department of Justice were authorized to conduct a grand jury investigation of three American corporations suspected of conspiring to fix the price of tallow being sold to a foreign government and financed by the Department of State’s Agency for International Development. After subpoenaing thousands of documents from the three corporate respondents, and taking the testimony of numerous witnesses, including the five individual respondents, the Department of Justice conferred with some of respondents’ attorneys and concluded that, although respondents had violated § 1 of the Sherman Act, 15 U.S.C. § 1, criminal prosecution was not warranted under the circumstances. In early June, 1984, the grand jury was discharged without returning any indictments.

On June 28, 1984, the attorneys who had been in charge of the grand jury investigation served Civil Investigative Demands (CID’s), pursuant to the Antitrust Civil Process Act, 76 Stat. 548, as amended, 15 U.S.C. §§ 1311-1314, on approximately two dozen persons and entities, including the corporate respondents, calling for the production of various documents. The Antitrust Division advised each respondent that it could comply with the CID by certifying that the requested documents had already been furnished to the grand jury. Two of the corporate respondents refused to do so, and also refused to furnish any additional copies of the documents.

After further investigation, the Antitrust Division attorneys came to the tentative conclusion that respondents had violated the False Claims Act, 31 U.S.C. §§ 3729-3731, and the Foreign Assistance Act, 22 U.S.C. §§ 2151-2429 (1982 ed. and Supp. III), as well as the Sherman Act. Because the Civil Division of the Department of Justice has primary responsibility for enforcing the False Claims Act, see 28 CFR § 0.45(d) (1986), the Antitrust Division deemed it appropriate to consult with lawyers in the Civil Division before initiating a civil action. Additionally, because of the venue of the contemplated civil action, the Antitrust Division felt it necessary to consult with the United States Attorney for the Southern District of New York. Accordingly, the Antitrust Division lawyers filed a motion in the District Court for the Southern District of New York requesting an order under Federal Rule of Criminal Procedure 6(e) allowing them to disclose grand jury material to six named Government attorneys and such associates as those attorneys might designate. After an ex parte hearing, the District Court granted the motion, based on its finding that the Government’s interest in coordinating fair and efficient enforcement of the False Claims Act, and obtaining the Civil Division’s and United States Attorney’s expert consultation, constituted a particularized need for the requested disclosure.

On March 6, 1985, the Government advised respondents that the Rule 6(e) order had previously been entered, and that a civil action would be filed against them within two weeks. Respondents immediately moved to vacate the Rule 6(e) order and, additionally, to enjoin the Government from using the grand jury information in "preparing, filing, or litigating" the anticipated civil action. The District Court denied both forms of relief. Respondents immediately appealed, and also moved for immediate interim relief from the Court of Appeals for the Second Circuit. The Court of Appeals granted partial relief, allowing the Government to file a complaint, but ordering that it be filed under seal.

After expedited consideration, The Court of Appeals reversed both aspects of the District Court’s order. In re Grand Jury Investigation, 774 F.2d 34 (1985). First, the court examined the issue left open in Sells, and agreed with respondents that, because the attorneys who had worked on the grand jury investigation were now involved only in civil proceedings, the attorneys were forbidden from making continued use of grand jury information without first obtaining a court order. 774 F.2d at 40-43. Nonetheless, the Court of Appeals took no action with respect to the complaint that had been filed, because the court concluded that the complaint disclosed nothing about the grand jury investigation. Id. at 42. With respect to the District Court’s order allowing disclosure to the six attorneys for consultation purposes, the Court of Appeals held that the order was not supported by an adequate showing of "particularized need." Id. at 37-40. We granted certiorari, 476 U.S. 1140 (1986), and now reverse.{1}

II

The "General Rule of Secrecy" set forth in Federal Rule of Criminal Procedure 6(e) provides that certain persons, including attorneys for the Government, "shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules."{2} Unlike our previous decisions in this area, which have primarily involved exceptions to the general rule,{3} this case involves a more preliminary question: what constitutes disclosure? The Court of Appeals acknowledged that

to characterize [attorneys’] continued access in the civil phase to the materials to which they had access in the criminal phase as disclosure within the meaning of rule 6(e) seems fictional at first glance.

774 F.2d at 40. But the Court of Appeals reasoned that the attorneys could not possibly remember all the details of the grand jury investigation, and therefore the use of grand jury materials

to refresh their recollection as to documents or testimony to which they had access in the grand jury proceeding is tantamount to a further disclosure.

Ibid.

Contrary to the Court of Appeals’ conclusion, it seems plain to us that Rule 6(e) prohibits those with information about the workings of the grand jury from revealing such information to other persons who are not authorized to have access to it under the Rule. The Rule does not contain a prohibition against the continued use of information by attorneys who legitimately obtained access to the information through the grand jury investigation. The Court of Appeals’ reasoning is unpersuasive, because it stretches the plain meaning of the Rule’s language much too far. It is indeed fictional -- and not just "at first glance" -- to interpret the word "disclose" to embrace a solitary reexamination of material in the privacy of an attorney’s office.{4} For example, it is obvious that the prohibition against disclosure does not mean that an attorney who prepared a legal memorandum (which happens to include some information about matters related to the workings of the grand jury) for his file, is barred from looking at the memorandum once the grand jury investigation terminates. As the Court of Appeals for the Eighth Circuit recently concluded, "[f]or there to be a disclosure, grand jury matters must be disclosed to someone." United States v. Archer-Daniels-Midland Co., 785 F.2d 206, 212 (1986), cert. pending, No. 85-1840.

Because we decide this case based on our reading of the Rule’s plain language, there is no need to address the parties’ arguments about the extent to which continued use threatens some of the values of grand jury privacy identified in our cases{5} and cataloged in Sells Engineering, 463 U.S. at 432-433. While such arguments are relevant when language is susceptible of more than one plausible interpretation, we have recognized that, in some cases,

[w]e do not have before us a choice between a "liberal" approach toward [a Rule], on the one hand, and a "technical" interpretation of the Rule, on the other hand. The choice, instead, is between recognizing or ignoring what the Rule provides in plain language. We accept the Rule as meaning what it says.

Schiavone v. Fortune, 477 U.S. 21, 30 (1986). As for the policy arguments, it suffices to say that, as the Court of Appeals recognized, the implications of our construction are not so absurd or contrary to Congress’ aims as to call into question our construction of the plain meaning of the term "disclosure" as used in this Rule.

Respondents urge in the alternative that Rule 6(e) prohibits attorneys’ continued use of grand jury materials because the filing of a civil complaint itself discloses grand jury materials to outsiders. Respondents argue that such disclosure is inevitable, because a civil complaint’s factual allegations will invariably be based on information obtained during the grand jury investigation. This hypothetical fear is not substantiated by the record in this case. The Court of Appeals stated that the Government’s complaint

does not quote from or refer to any grand jury transcripts or documents subpoenaed by the grand jury, and does not mention any witnesses before the grand jury, or even refer to the existence of a grand jury.

774 F.2d at 37. Nor do respondents identify anything in the complaint that indirectly discloses grand jury information. We have no basis for questioning the accuracy of the Court of Appeals’ conclusion that the filing of the complaint did not constitute a prohibited disclosure. A Government attorney may have a variety of uses for grand jury material in a planning stage, even though the material will not be used, or even alluded to, in any filing or proceeding.{6} In this vein, it is important to emphasize that the issue before us is only whether an attorney who was involved in a grand jury investigation (and is therefore presumably familiar with the "matters occurring before the grand jury") may later review that information in a manner that does not involve any further disclosure to others. Without addressing the very different matter of an attorney’s disclosing grand jury information to others, inadvertently or purposefully, in the course of a civil proceeding, we hold that Rule 6(e) does not require the attorney to obtain a court order before refamiliarizing himself or herself with the details of a grand jury investigation.

III

The Department of Justice properly recognized that, under our holding in Sells, it could not disclose information to previously uninvolved attorneys from the Civil Division or the United States Attorney’s office without a court order pursuant to Rule 6(e)(3)(C)(i).{7} Upon the Department’s motion, the District Court granted an order finding a "particularized need for disclosure" pursuant to the considerations described in Sells. The District Court accepted the Government’s argument that consultation and coordination between the Civil Division, the United States Attorney, and the Antitrust Division was necessary to ensure consistent enforcement of the False Claims Act and "the fair and evenhanded administration of justice." App. 14. The Court of Appeals reversed on this point, however, concluding that disclosure was unnecessary because the same information could eventually have been obtained through civil discovery.

In Sells. we noted that Rule 6(e) itself does not prescribe the substantive standard governing the issuance of an order pursuant to Rule 6(e)(3)(C)(i), and that the case law that had developed in response to requests for disclosure by private parties had consistently required "a strong showing of particularized need" before disclosure is permitted. 463 U.S. at 443-445; see generally Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222-223 (1979).{8} Although we held that this same standard applies where a court is asked to order disclosure to a government attorney, see 463 U.S. at 443-444; Illinois v. Abbott & Associates, Inc., 460 U.S. 557 (1983), we made it clear that the concerns that underlie the policy of grand jury secrecy are implicated to a much lesser extent when the disclosure merely involves Government attorneys.

Nothing in Douglas Oil, however, requires a district court to pretend that there are no differences between governmental bodies and private parties. The Douglas Oil standard 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. Hence, although Abbott and the legislative history foreclose any special dispensation from the Douglas Oil standard for Government agencies, the standard itself accommodates any relevant considerations, peculiar to Government movants, that weigh for or against disclosure in a given case. For example, a district court might reasonably consider that disclosure to Justice Department attorneys poses less risk of further leakage or improper use than would disclosure to private parties or the general public. Similarly, we are informed that it is the usual policy of the Justice Department not to seek civil use of grand jury materials until the criminal aspect of the matter is closed. Cf. Douglas Oil, supra, at 222-223. And

under the particularized need standard, the district court may weigh the public interest, if any, served by disclosure to a governmental body. . . .

Abbott, supra, at 567-568, n. 15. On the other hand, for example, in weighing the need for disclosure, the court could take into account any alternative discovery tools available by statute or regulation to the agency seeking disclosure.

463 U.S. at 445.

In this case, the disclosures were requested to enable the Antitrust Division lawyers who had conducted the grand jury investigation to obtain the full benefit of the experience and expertise of the Civil Division lawyers, who regularly handle litigation under the False Claims Act, and of the local United States Attorney, who is regularly consulted before actions are filed in his or her district. The public purposes served by the disclosure -- efficient, effective, and evenhanded enforcement of federal statutes -- are certainly valid, and were not questioned by the Court of Appeals. Particularly because the contemplated use of the material was to make a decision on whether to proceed with a civil action, the disclosure here could have had the effect of saving the Government, the potential defendants, and witnesses the pains of costly and time-consuming depositions and interrogatories which might have later turned out to be wasted if the Government decided not to file a civil action after all. To be sure, as we recognized in Sells, not every instance of "saving time and expense" justifies disclosure. Id. at 431. The question that must be asked is whether the public benefits of the disclosure in this case outweigh the dangers created by the limited disclosure requested.

In Sells, we recognized three types of dangers involved in disclosure of grand jury information to Government attorneys for use related to civil proceedings. First, we stated that disclosure not only increases the

number of persons to whom the information is available (thereby increasing the risk of inadvertent or illegal release to others), but also it renders considerably more concrete the threat to the willingness of witnesses to come forward and to testify fully and candidly.

Id. at 432 (footnote omitted). Neither of these fears is well-founded with respect to the narrow disclosure involved in this case. The disclosure of a summary of a portion of the grand jury record to named attorneys for purposes of consultation does not pose the same risk of a wide breach of grand jury secrecy as would allowing unlimited use of the material to all attorneys in another division -- the disclosure involved in Sells. Moreover, the fact that the grand jury had already terminated mitigates the damage of a possible inadvertent disclosure. See id. at 445. Finally, because the disclosure authorized in this case would not directly result in any witness’ testimony’s being used against him or her in a civil proceeding, there is little fear that the disclosure will have any effect on future grand jury testimony.

The second concern identified in Sells is the threat to the integrity of the grand jury itself. We explained that, if

prosecutors in a given case knew that their colleagues would be free to use the materials generated by the grand jury for a civil case, they might be tempted to manipulate the grand jury’s powerful investigative tools to root out additional evidence useful in the civil suit, or even to start or continue a grand jury inquiry where no criminal prosecution seemed likely.

Id. at 432. The discussion of this concern in Sells dealt with whether the Civil Division should be given unfettered access to grand jury materials. We think the concern is far less worrisome when the attorneys seeking disclosure must go before a court and demonstrate a particularized need prior to any disclosure, and when, as part of that inquiry, the district court may properly consider whether the circumstances disclose any evidence of grand jury abuse. In this case, for example, one of the Government attorneys involved in the criminal investigation submitted an affidavit attesting to the Department’s good faith in conducting the grand jury investigation, App. 17-19, and there has been no evidence or allegation to the contrary. The fact that a court is involved in this manner lessens some of the usual difficulty in detecting grand jury abuse. See Sells, 463 U.S. at 432. Moreover, we think the fear of abuse is minimal when the civil use contemplated is simply consultation with various Government lawyers about the prudence of proceeding with a civil action.

The final concern discussed in Sells is that

use of grand jury materials by Government agencies in civil or administrative settings threatens to subvert the limitations applied outside the grand jury context on the Government’s powers of discovery and investigation.

Id. at 433. We continue to believe that this is an important concern, but it is not seriously implicated when the Government simply wishes to use the material for consultation. Of course, when the Government requests disclosure for use in an actual adversarial proceeding, this factor (as well as the others) may require a stronger showing of necessity. We have explained that,

as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury [material] will have a lesser burden in showing justification.

Douglas Oil, 441 U.S. at 223.

Although it recognized that the disclosure in this case did not seriously threaten the values of grand jury secrecy, the Court of Appeals nonetheless concluded that the request for disclosure should have been denied because virtually all of the relevant information could have been obtained from respondents through discovery under the Antitrust Civil Process Act.{9} The Court of Appeals believed that the delay and expense that would be caused by such duplicative discovery was not a relevant factor in the particularized need analysis. 774 F.2d at 39.

While the possibility of obtaining information from alternative sources is certainly an important factor, we believe that the Court of Appeals exaggerated its significance in this case. Even if we assume that all of the relevant material could have been obtained through the civil discovery tools available to the Government,{10} our precedents do not establish a per se rule against disclosure. Rather, we have repeatedly stressed that wide discretion must be afforded to district court judges in evaluating whether disclosure is appropriate. See Douglas Oil, 441 U.S. at 228; id. at 236-237 (STEVENS, J., dissenting); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399 (1959). The threat to grand jury secrecy was minimal in this context, and under the circumstances, the District Court properly considered the strong "public interests served" through disclosure. See Sells, 463 U.S. at 445; id. at 469-470 (Burger, C.J., dissenting). As we noted in Sells, the governing standard 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.

Id. at 445. The District Court correctly examined the relevant factors and we cannot say that it abused its discretion in determining that the equities leaned in favor of disclosure.{11}

The judgment of the Court of Appeals is

Reversed.

JUSTICE WHITE took no part in the consideration or decision of this case.

1. The Court of Appeals rejected respondents’ challenge to the ex parte nature of the initial Rule 6(e) hearing. 774 F.2d at 37. Respondents have not cross-petitioned for certiorari on that point, and we do not address it.

2. Rule 6(e) provides, in relevant part, as follows:

Recording and Disclosure of Proceedings.

* * * *

(2) General Rule of Secrecy. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. . . .

(3) Exceptions.

(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to --

(i) an attorney for the government for use in the performance of such attorney’s duty; and

(ii) such government personnel . . . as are deemed necessary . . . to assist an attorney for the government in the performance of such attorney’s duty to enforce federal criminal law.

(B) Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in performance of such attorney’s duty to enforce federal criminal law. An attorney for the government shall promptly provide the district court, before which was impaneled the grand jury . . . with the names of the persons to whom such disclosure has been made.

(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made --

(i) when so directed by a court preliminarily to or in connection with a judicial proceeding; or

(ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.

3. See, e.g., United States v. Procter & Gamble Co., 356 U.S. 677 (1958); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395 (1959); Dennis v. United States, 384 U.S. 855 (1966); Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979); Illinois v. Abbott & Associates, Inc., 460 U.S. 557 (1983); United States v. Sells Engineering, Inc., 463 U.S. 418 (1983); United States v. Baggott, 463 U.S. 476 (1983).

4. The word "disclose" is not defined in the Rule, but the common dictionary definitions include to "open up," to "expose to view," to "open up to general knowledge," and to "make known or public . . . something previously held close or secret." See Webster’s Third New International Dictionary 645 (1976); Webster’s New Collegiate Dictionary 325 (1977).

5. In Procter & Gamble, the Court listed the following reasons for grand Jury secrecy:

"(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt."

356 U.S. at 681, n. 6, quoting United States v. Rose, 215 F.2d 617, 628-629 (CA3 1954).

6. JUSTICE BRENNAN argues that "there can be little doubt that grand jury information was used" in preparing the complaint. Post at 124, n. 5. Mere "use" of grand jury information in the preparation of a civil complaint would not constitute prohibited disclosure. In this case, for example, one cannot say whether the Government relied at all on the grand jury information. The Government obviously had some evidence of wrongdoing (or at least suspicion) before it convened the grand jury. The general allegations of the civil complaint may well have disclosed nothing that the Government attorneys did not already know before they convened the grand jury, even though the grand jury investigation corroborated the previously known facts. To be sure, the Government’s decision to bring a civil action was "based on the evidence obtained in the course of its grand jury testimony," ibid, but this does not mean that the complaint disclosed any of that information, or that, as JUSTICE BRENNAN believes, post at 128, the Government has no interest in the material unless it actually introduces it or otherwise discloses it at trial.

7. Rule 6(e)(3)(C)(i) provides:

(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made --

(i) when so directed by a court preliminarily to or in connection with a judicial proceeding.

8. In Douglas Oil, we described the standard as follows:

Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed. . . .

441 U.S. at 222.

9. The Court of Appeals was also concerned about the specificity of the requested disclosure. While this concern was appropriate, the lack of particularity was not overly dangerous in this setting, because the interest in preserving secrecy from Civil Division lawyers was minimal and the Antitrust lawyers obviously would not have any reason to burden them with portions of the record that were not relevant to the advisory task that they were being asked to perform.

10. It is far from clear that this assumption is accurate. Only in 1986 did Congress amend the False Claims Act so as to allow the use of CID’s for investigations of violations of that Act. See Pub.L. 99-562, 100 Stat. 3153. In addition, the Government’s opportunity to proceed with civil discovery before deciding whether to file a civil complaint was significantly hampered by the fact that the statute of limitations on one of the claims was to run shortly after the grand jury was dismissed.

11. Based on his assumption that any complaint filed would necessarily disclose grand jury information, JUSTICE BRENNAN concludes that there could be no legitimate justification for disclosure to the Civil Division lawyers and the United States Attorney for consultation purposes. This argument misses two points. First, the Antitrust Division may have wanted the attorneys’ advice on the matter even if they would not have been able to disclose the actual grand jury materials in a subsequent civil proceeding. Seen. 6, supra. Second, in the event that the consultations confirmed the position that a civil suit was appropriate, the Antitrust Division attorneys may have planned on eventually seeking a second court order that would allow them to disclose the material in a civil suit. See post at 127 (Government may, of course, seek court order permitting disclosure in civil case). The purpose of the consultation, therefore, was not necessarily intertwined with any disclosure that JUSTICE BRENNAN believes is prohibited.

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Chicago: John Paul Stevens, "Stevens, J., Lead Opinion," United States v. John Doe, Inc. I, 481 U.S. 102 (1987) in 481 U.S. 102 481 U.S. 105–481 U.S. 117. Original Sources, accessed October 3, 2022, http://www.originalsources.com/Document.aspx?DocID=L9LYM96B2GM7UUB.

MLA: Stevens, John Paul. "Stevens, J., Lead Opinion." United States v. John Doe, Inc. I, 481 U.S. 102 (1987), in 481 U.S. 102, pp. 481 U.S. 105–481 U.S. 117. Original Sources. 3 Oct. 2022. http://www.originalsources.com/Document.aspx?DocID=L9LYM96B2GM7UUB.

Harvard: Stevens, JP, 'Stevens, J., Lead Opinion' in United States v. John Doe, Inc. I, 481 U.S. 102 (1987). cited in 1987, 481 U.S. 102, pp.481 U.S. 105–481 U.S. 117. Original Sources, retrieved 3 October 2022, from http://www.originalsources.com/Document.aspx?DocID=L9LYM96B2GM7UUB.