The opinion of the court was delivered by: NEAHER
Plaintiffs in these related treble-damage antitrust cases, which have been consolidated for pre-trial discovery purposes, have requested access to certain grand jury transcripts pursuant to Rule 6(e)(3)(C)(i), F.R.Crim.P. The grand jury, now defunct, sat in 1977-78 in the Western District of Pennsylvania to investigate pricing practices in the titanium mill industry. Indictments alleging a price-fixing conspiracy were handed down, and several defendants entered pleas of nolo contendere or guilty. Subsequently, various private antitrust suits were filed, including these three cases and United States v. RMI Company, 81 Civ. 4177 (E.D.N.Y., filed Dec. 12, 1981), a case brought by the government in its proprietary capacity also pending before this Court.
The consolidated plaintiffs have requested access to the grand jury minutes in their entirety. Alternatively, they seek access to the testimony of Robert Connell and Ward Minkler, former vice-presidents of defendant Titanium Metals Corporation of America, and of William Price, a former employee of defendant RMI, or at least access to portions of Connell's and Minkler's testimony which corresponds to matters covered in depositions. Additionally, if plaintiffs are not permitted total access to the grand jury minutes, they seek an order requiring defendants to identify which portions of the transcripts have previously been made available to defendants, and granting plaintiffs access to those transcripts.
Grand jury secrecy ensures the proper functioning of that system, and may only be lifted "discretely and limitedly." United States v. Procter & Gamble Co., 356 U.S. 677, 683, 2 L. Ed. 2d 1077, 78 S. Ct. 983 (1958); accord, Douglas Oil Company of California v. Petrol Stops Northwest, 441 U.S. 211, 221, 60 L. Ed. 2d 156, 99 S. Ct. 1667 (1979). The Supreme Court in Douglas Oil established a three-part standard for determining whether traditional grand jury secrecy must yield to specific party needs:
"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." Id. at 222 (footnote omitted).
The issue, therefore, is "whether a particularized need for disclosure outweigh(s) the interest in continued grand jury secrecy." Id. at 223.
A particularized need for grand jury testimony must be demonstrated by more than a mere showing that such material is relevant. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 3 L. Ed. 2d 1323, 79 S. Ct. 1237 (1959). The party seeking the testimony must focus "on a specific area of inquiry," United States v. Moten, 582 F.2d 654, 663 (2d Cir. 1978), and must show that the grand jury testimony will contain needed information not otherwise available. E.g., Index Fund v. Hagopian, 512 F. Supp. 1122, 1130 (S.D.N.Y. 1981). Access to grand jury minutes cannot be used solely to circumvent traditional discovery methods.
The Second Circuit has indicated that once a party has sufficiently demonstrated a particularized need, the court should generally review in camera the requested portions of the grand jury testimony:
"The district court below had the obligation to assess the strength of the particularized showing of need made by the Government in view of the case law and then to make an in camera examination of the pertinent portions of the grand jury transcript. The disclosure order must be structured to cover only the material required in the interests of justice." United States v. Sobotka, 623 F.2d 764, 768 (2d Cir. 1980).
The Second Circuit has cautioned, however, against an "approach [that] would unnecessarily burden the courts with the task of scouring the grand jury minutes in camera for details that were not otherwise disclosed." Moten, 582 F.2d at 644. If, as is the case here, the information sought is to be used to refresh faulty recollection or to impeach a witness, the reviewing court need not draw fine lines concerning what materials may be released:
"'Trial judges ought not to be burdened with the task or the responsibility of examining sometimes voluminous grand jury testimony in order to ascertain inconsistencies with trial testimony. In any event, "it will be extremely difficult for even the most able and experienced trial judge under the pressures of conducting a trial to pick out all of the grand jury testimony that would be useful in impeaching a witness." Pittsburgh Plate Glass, 360 U.S. at 410, 79 S. Ct. at 1237 (dissenting opinion). Nor is it realistic to assume that the trial court's judgment as to the utility of material for impeachment or other legitimate purposes, however conscientiously made, would exhaust the possibilities. In our adversary system, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate.'" Illinois v. Sarbaugh, 552 F.2d 768, 776-77 (7th Cir. 1977), quoting Dennis v. United States, 384 U.S. 855, 874, 16 L. Ed. 2d 973, 86 S. Ct. 1840 (1966).
Intertwined with whether plaintiffs may obtain any part of the grand jury testimony is which court is best suited to review this matter. The need to maintain grand jury secrecy must be balanced against the need for access. Numerous policy reasons support the maintenance of grand jury secrecy, and some of these concerns clearly are not dissipated even though the grand jury has completed its investigation. Douglas Oil Co., 441 U.S. at 219; Procter & Gamble, 356 U.S. at 681-82 n.6. This Court has no familiarity with the actual grand jury proceedings, and thus it is not the appropriate forum to resolve the continuing need for secrecy. Although it was not necessarily inappropriate to commence this proceeding in this Court, the Western District of Pennsylvania presided over the grand jury and has custody of its transcripts. Therefore, it is the only court that can ascertain the continuing concerns for secrecy or that can order release of the transcripts to either this Court or to the parties.
Conversely, the civil litigation is pending before this Court, giving this Court a certain expertise in determining the particularized needs of the plaintiffs. Douglas Oil Co., 441 U.S. at 209-10; see Baker v. United States Steel Corp., 492 F.2d 1074, 1076-77 (2d Cir. 1974); Index Fund, 512 F. Supp. at 1124-26. For two reasons, a determination at this time by this Court as to what needs have already been demonstrated with sufficient particularity is efficient and desirable. First, the Western District of Pennsylvania might then determine that it has before it enough information to resolve the immediate questions of access to the grand jury testimony, obviating a return to this Court for in camera review. See Douglas Oil Co., 441 U.S. at 228 (stating that disclosure of grand jury testimony requires "a coordinating of the informed views of both the civil trial court and the grand jury court"). Second, as discovery progresses in these complex antitrust cases, this Court anticipates a return by the parties either to this forum or to the Western District of Pennsylvania for further access to the ...