The opinion of the court was delivered by: BRIEANT
In this ancient Bivens type civil rights action, filed March 19, 1974, there has been pending since December 22, 1981 a motion by all those defendants actually served and appearing, to dismiss the complaint for failure to state a claim, or alternatively, for summary judgment. Joined with Bivens allegations of Constitutional violations by agents of the Bureau of Narcotics and Dangerous Drugs ("BNDD", now Drug Enforcement Agency) are pendent claims under state law for false arrest and defamation.
The sole remaining plaintiff, Robert T. Dale, (hereinafter "Dr. Dale") was a physician. In 1971-72 together with his wife he operated a methadone clinic in New York City. Following an audit of the clinic records by agents of the BNDD, plaintiff closed his clinic and departed for Europe.
On February 14, 1973, a Grand Jury in this district returned an indictment against Dr. Dale and another, under docket number 73 Cr. 163, charging Dr. Dale with three counts of violation of 21 U.S.C. §§ 812, 827 and 843 by furnishing false and fraudulent information in records of a controlled substance dispensed, and two counts for making false statements to federal agents in violation of 18 U.S.C. § 1001. For reasons which need not concern us, this indictment never proceeded to trial on the merits. Leave was granted to the Government by Judge Stewart of this Court on March 4, 1974 to file an order nolle prosequi, and that was done.
While the complaint contains several claims and theories pleaded, our consideration at this time is directed only to the following allegation:
"23. By making false and malicious statements to a grand jury, and acting in bad faith, certain unknown defendants caused an indictment to issue against defendants (sic, should read "plaintiffs") on or about February 16, 1973 charging them with serious and infamous crimes which defendants knew or should have known there was no cause to believe plaintiffs have committed, thus depriving plaintiffs of their right to "due process of law' guaranteed by the Fifth Amendment."
We are told without contradiction that defendant James Steinberg is the only defendant actually served and appearing in this case, who did testify before the grand jury which voted the 1973 indictment. Plaintiff does not know, nor does the Court know what his testimony was. When asked to particularize, in answer to an interrogatory, what there was false and malicious about the grand jury testimony, plaintiff could not do so. His position is that from the totality of other known facts which tend to show defendants were outraged by plaintiff's pre-indictment conduct to the extent of animus, and also from the mere fact that the indictment was returned, "false and malicious statements" must have been made, because otherwise "the grand jury would not have returned an indictment deliberately containing these counts unless the agents had presented a misleading account of the facts" (quoted from Answer to Question 1(iv) to Interrogatories propounded by defendants).
At the time of defendants' motion, plaintiff had pending for decision before the Magistrate designated by then District Judge Pierce to whom this litigation was formerly assigned, a motion to discover the grand jury testimony. That discovery motion remained undecided.
Defendants are being represented here by the Civil Division of the United States Attorney's Office in this district, however, the Assistant United States Attorney in charge of this matter has never to this day seen nor read the grand jury testimony of defendant Steinberg, which is now in the possession of his Office.
Faced with this situation, this Court on its own motion issued a Memorandum and Order dated February 2, 1982 in lieu of a subpoena duces tecum, directing as follows:
"The Court directs that the United States Attorney for this District shall produce to this Court and to the attorneys for the parties to this action copies of the grand jury testimony of all persons actually served and appearing and defending in this action, OR shall show just cause before me on February 11, 1982 at 3:00 P.M. in Courtroom 705, why he should not be required so to do
The Court realizes that the production of these minutes might present problems of which the Court is presently unaware. Counsel should confer informally in advance of the hearing to delineate any such problems which may exist, and if such there be, to attempt by means of a protective order, partial redaction (Baker v. United States Steel Corp., 492 F.2d 1074, 1075-76 (2d Cir. 1974) ), or any other reasonable means, to obviate any such problem by agreement, in order that any problems may be avoided or minimized."
On the return date provided in the aforesaid Order, the United States sought and was granted leave to intervene. It opposes disclosure of the grand jury testimony, apparently solely as a matter of principle, or upon the claim that there is no "particularized need" within Rule 6(e)(3), F.R.Crim.P. By its memorandum, and at the hearing before me, the United States specifically eschewed any contention that the release to Dr. Dale of these grand jury minutes at this time, after some nine years have passed, would compromise any ongoing investigation, or invite escape of those whose indictment may be contemplated. There is also no attempt by the Government to show that release at this time would cause targets of grand jury inquiry to suborn perjury or importune the grand jurors. There has been no response to the suggestion or invitation by this Court that the minutes be redacted if need be, to protect any other persons, or any grand juror who may have commented on the record.
As we noted in our Memorandum and Order of February 2, 1982, had this plaintiff gone to trial upon the indictment, he probably would have received the grand jury minutes either as possible "Brady" material or pursuant to 18 U.S.C. § 3500(e)(3). The grand jury witness Steinberg was and is a federal agent accustomed to testifying to the results of his investigations of violations of the federal narcotics laws. When he testified to the grand jury it was within his contemplation that he would testify at trial (if trial were held) and that at trial, following his direct testimony the grand jury minutes would ...