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UNITED STATES v. PROCTER & GAMBLE CO. ET AL.

decided: June 2, 1958.

UNITED STATES
v.
PROCTER & GAMBLE CO. ET AL.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.

Warren, Black, Frankfurter, Douglas, Burton, Clark, Harlan, Brennan, Whittaker

Author: Douglas

[ 356 U.S. Page 678]

 MR. JUSTICE DOUGLAS delivered the opinion of the Court.

This is a civil suit brought under § 4 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 4, to enjoin alleged violations of § 1 and § 2 of the Act. The civil suit was filed on the heels of a grand jury investigation in which no indictment was returned. The Government is using the grand jury transcript to prepare the civil case for trial; and appellees, who are defendants in that suit, desire the same privilege. They moved for discovery and production of the minutes under the Rules of Civil Procedure.*fn1 The District Court granted the motion, ruling that appellees had shown "good cause" as required by Rule 34.*fn2 It rested on the ground that the Government

[ 356 U.S. Page 679]

     was using the transcript in preparation for trial, that it would be useful to appellees in their preparation, that only in this way could appellees get the information. These reasons, the court held, outweighed the reasons behind the policy for maintaining secrecy of the grand jury proceedings. 19 F.R.D. 122, 128.

The District Court entered orders directing the Government to produce the transcript in 30 days and to permit appellees to inspect and copy it. The Government, adamant in its refusal to obey, filed a motion in the District Court requesting that those orders be amended to provide that, if production were not made, the court would dismiss the complaint. Alternatively, the Government moved the District Court to stay the order pending the filing of an appeal and an application for extraordinary writ. Appellees did not oppose the motion; and the District Court entered an amended order providing that, unless the Government released the transcript by August 24, 1956, "the Court will enter an order dismissing the complaint."*fn3 As the Government persisted

[ 356 U.S. Page 680]

     in its refusal, the District Court entered judgment of dismissal. The case is here by way of appeal, 32 Stat. 823, as amended, 62 Stat. 869, 989, 15 U. S. C. § 29. We postponed the question of jurisdiction to argument on the merits. 352 U.S. 997.

First. The orders of dismissal were final orders, ending the case.*fn4 See United States v. Wallace & Tiernan Co., 336 U.S. 793.

Appellees urge that this appeal may not be maintained because dismissal of the complaint was solicited by the Government. They invoke the familiar rule that a plaintiff who has voluntarily dismissed his complaint may not sue out a writ of error. See Evans v. Phillips, 4 Wheat. 73; United States v. Babbitt, 104 U.S. 767. The rule has no application here. The Government at all times opposed the production orders. It might of course have tested their validity in other ways, for example, by the route of civil contempt. Yet it is understandable why a more conventional way of getting review of the adverse ruling might be sought and any unseemly conflict with the District Court avoided. When

[ 356 U.S. Page 681]

     the Government proposed dismissal for failure to obey, it had lost on the merits and was only seeking an expeditious review. This case is therefore like Thomsen v. Cayser, 243 U.S. 66, where the losing party got the lower court to dismiss the complaint rather than remand for a new trial, so that ...


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