The opinion of the court was delivered by: DAWSON
This proceeding, captioned as one by 'John Doe, an attorney,' against various individuals who constitute the Committee on Grievances of the Association of the Bar of the City of New York, was brought on by a notice of motion. The motion seeks, among other things, an order
'1. Ordering the surrender and return of the transcript of the testimony of all witnesses examined before the April 1955 Special United States Grand Jury and the transcript of the testimony of witnesses given before the United States Grand Jury on April 2, 1952; and
'2. Ordering the surrender and return of all records, memoranda, extracts, notes and copies therefrom; and
'3. Ordering that the said Grievance Committee of the Association of the Bar of the City of New York and the aforesaid individual members thereof, their agents, attorneys and employees, be restrained and precluded from using any or all of said transcript of minutes or memoranda, extracts, notes and copies therefrom, or any information directly or indirectly obtained therefrom, or by means thereof, or as a result of examination and use thereof, and leads and clues revealed thereby; and
'4. Ordering that there by expunged from the records of this Court that part of the minutes of the Special United States Grand Jury of April 1955 relating to the reference to the Grievance Committee of the Association of the Bar of the City of New York of the matters relating to the activities of the movant-petitioner herein; and
'6. Ordering that the above entitled proceeding remain encaptioned anonymously and that all the papers and proceedings herein be sealed and kept confidential; and
'7. Ordering that the aforesaid Grievance Committee of the Association of the Bar of the City of New York, the aforesaid named individual members thereof, their agents, attorneys and employees, be stayed from proceeding in their investigation or any investigation in any way related to the use of the aforesaid grand jury minutes and from hearing any evidence or receiving any information or from taking any other or further proceedings in relation to the movant-petitioner herein, pending the hearing and determination of this application and the service of notice of entry of an order hereon; * * *.'
The background of the motion relates to an order made by this Court on March 22, 1956 captioned as 'In the Matter of Making Available to the Grievance Committee of the Association of the Bar of the City of New York Certain Testimony before the United States Grand Jury, Southern District of New York of Various Witnesses in an Investigation Relating to -- .'
This order of March 22, 1956 directed the United States Attorney for the Southern District of New York to make available to the Grievance Committee of the Association of the Bar of the City of New York the transcript of testimony of certain witnesses before the April 1955 Special Grand Jury, and particularly the testimony of a certain attorney in this proceeding called 'John Doe,' for use 'preliminarily to and in connection with contemplated judicial proceedings.'
This order was granted on the application of an Assistant United States Attorney and of the trial counsel of the Committee on Grievances of the Association of the Bar of the City of New York, from which the following facts appeared:
That on April 6, 1955 a Special Grand Jury was convened in this court to investigate charges of corruption in government and the criminal activity of the aforesaid John Doe, a former group chief in the Internal Revenue Service, who is also a member of the bar of the State of New York; that the evidence of criminal activity and corruption developed before the grand jury related to events where prosecution was barred by the statute of limitations and the grand jury returned no indictment, but voted that the matters relating to the activities of the aforesaid John Doe be referred to the Grievance Committee of the Association of the Bar of the City of New York; that a complaint had been made to the aforesaid Committee on Grievances and a preliminary investigation of the matters contained in the complaint was then being made with a view to the institution of a judicial proceeding seeking disciplinary action against the aforesaid John Doe pursuant to the provisions of 90 of the Judiciary Law, McKinney's Consol.Laws, c. 30, of the State of New York. The attorney for the Grievance Committee asked that an order be made permitting the minutes of the proceedings before the grand jury to be made available to the Grievance Committee. This application was supported by the Office of the United States Attorney.
Thereafter the order of March 22, 1956 was signed and pursuant thereto the minutes of the grand jury relating to this matter were made available to the Grievance Committee which is presently conducting hearings to determine whether to file a complaint instituting disciplinary proceedings against the aforesaid Jonn Doe.
John Doe has now brought this motion. At the outset it becomes necessary to consider whether this motion, which in effect seeks an injunction, is properly before this Court. No action has been instituted. An action may not be started merely by serving a notice of motion. See Warren v. Arzt, D.C.S.D.N.Y.1955, 18 F.R.D. 11. There ...