UNITED STATES OF AMERICA, PETITIONER V. JOHN DOE I, INC., ET AL. No. 85-1813 In the Supreme Court of the United States October Term, 1985 Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the decision of the United States Court of Appeals for the Second Circuit in this case. PARTIES TO THE PROCEEDING Respondents are three corporations -- John Does, Inc. I, II, and III, respectively -- that are defendants in United States v. "A" Corp., 85-Civ.-2062 (S.D.N.Y.), a civil case filed under seal, and five individuals -- John Does I, II, III, IV, and V, respectively -- who are officers or employees of those corporations but are not defendants in the civil case. /1/ TABLE OF CONTENTS Parties to the Proceeding Opinions below Jurisdiction Rule involved Questions Presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-18a) is reported at 774 F.2d 34. An earlier order entered by the court of appeals (App., infra, 19a-20a) is unreported. The orders of the district court (App., infra, 21a, 22a-23a) are unreported. JURISDICTION The judgment of the court of appeals was entered on September 24, 1985. A petition for rehearing was denied on December 2, 1985 (App., infra, 24a). On February 25, 1986, Justice Marshall extended the time within which to file a petition for a writ of certiorari to and including April 1, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). RULE INVOLVED Rule 6(e) of the Federal Rules of Criminal Procedure provides, in pertinent 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. A knowing violation of Rule 6 may be punished as a contempt of court. (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 by an attorney for the government 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 the 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 whose material has been so disclosed, 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 preliminary to or in connection with a judicial proceeding; (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. * * * * * If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct. QUESTIONS PRESENTED 1. Whether an attorney of the Antitrust Division of the Department of Justice who has properly had access to grand jury materials while conducting a criminal investigation may use the same materials in preparing for and litigating a related civil case without obtaining a disclosure order pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure. 2. Whether the district court acted within its discretion when it issued a Rule 6(e) order authorizing the Antitrust Division to disclose certain grand jury materials to attorneys in the Civil Division and the United States Attorney's Office in order to obtain their advice and ensure consistent federal enforcement of the False Claims Act, a federal statute as to which the Civil Division has the primary enforcement responsibility. STATEMENT This case arises out of a federal grand jury investigation into bid rigging and price fixing by American companies in connection with government-financed sales of tallow to a foreign government. /2/ The grand jury did not return an indictment, but following a subsequent civil investigation by the same government attorneys as were involved in the grand jury investigations, the United States filed (under seal) a civil complaint charging three of the respondents and one other company with violations of three federal statutes. App., infra, 2a-5a. 1. In November 1981, the Agency for International Development of the Department of State notified the Antitrust Division of the Department of Justice that conduct by American companies in connection with AID-financed sales of tallow to a foreign government might warrant investigation for possible violations of the Sherman Act, 15 U.S.C. 1 et seq. Attorneys from the Antitrust Division conducted an investigation from March 1982 through early June 1984. In the course of the investigation, a grand jury in the Southern District of New York heard testimony from several dozen witnesses and received approximately 250,000 pages of subpoenaed documents (App., infra, 2a). Early in June 1984, the Antitrust Division tentatively concluded that respondents had violated Section 1 of the Sherman Act, 15 U.S.C. 1, but also decided that in the particular circumstances of this case a criminal prosecution was not appropriate. The grand jury investigation was promptly terminated without the return of an indictment. At the same time, however, the Antitrust Division concluded that a civil action against the corporate respondents might be appropriate. /3/ Accordingly, the Assistant Attorney General in charge of the Antitrust Division instructed the same attorneys who had conducted the grand jury investigation to pursue a civil investigation of the matter, and if appropriate, to prepare a complaint for civil injunctive relief under the Sherman Act, and to consider a possible action for damages under the False Claims Act, 31 U.S.C. 3729-3731. App., infra, 2a. Late in June 1984, pursuant to the Antitrust Civil Process Act (ACPA), 15 U.S.C. 1311-1314, the government issued civil investigative demands (CIDs) for documents to nearly two dozen persons, including the corporate respondents here, that had received grand jury subpoenas duces tecum. The scope of the CIDs overlapped that of the grand jury subpoenas, and the Antitrust Division notified the CID recipients that they could comply with the CIDs by certifying that all documents called for had been produced pursuant to the grand jury subpoenas. Nearly all recipients of CIDs complied in this manner, although two of the corporate respondents, while informally advising the Division that they had previously produced the documents sought, refused to sign certificates. In the course of the civil investigation, Antitrust Division attorneys also interviewed prospective witnesses and obtained documents from certain persons on a voluntary basis. App., infra, 2a-3a. The Antitrust Division ultimately concluded that respondents' conduct violated the Sherman Act and might also be a violation of the False Claims Act. The Division then considered whether to bring a civil suit under both statutes. Although the Civil Division of the Department of Justice is charged with the primary responsibility for enforcing the False Claims Act (see 28 C.F.R. 0.45(d)), the Antitrust Division is authorized to prosecute False Claims Act suits if the conduct in question also violates the antitrust laws (see 28 C.F.R. 0.40(a)). To ensure consistency in the government's enforcement of the False Claims Act, the Antitrust Division sought advice from the Civil Division regarding the propriety of bringing a False Claims Act suit on the facts developed. Because venue for the proposed civil suits would lie in the Southern District of New York, the Antitrust Division also sought advice from the United States Attorney's office for that district. The Antitrust and Civil Divisions then entered into preliminary discussions of the case that did not involve the disclosure of grand jury material (App., infra, 3a). However, the Civil Division indicated that it could not fully advise the Antitrust Division without a description of certain information contained in the grand jury record. Accordingly, on November 30, 1984, the Antitrust Division sought an order, pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure, from the United States District Court for the Southern District of New York authorizing the disclosure of information contained in the grand jury record to four named attorneys in the Civil Division, two named attorneys in the United States Attorney's Office, and other attorneys of the Division or the Office designated by them. App., infra, 3a-4a. In a memorandum accompanying its motion, the Antitrust Division stated that the information sought to be disclosed "includes a description and analysis of the evidence * * * uncovered by the grand jury and excerpts from documents and testimony of witnesses who appeared before the grand jury" (C.A. App. 7). The Division stated that it believed its need to disclose the grand jury materials to these government attorneys for the limited purpose of consultation to ensure consistent enforcement of federal civil law outweighed the need for continued secrecy from these attorneys (id. at 10-11). /4/ See also 11/29/84 Affidavit of Anna Swerdel para. 9 at 16; C.A. App. 16. The Division made clear that the requested disclosure was "not for purposes of further investigation" by the Civil Division or the United States Attorney (C.A. App. 9). After an ex parte hearing, the district court entered a Rule 6(e) order permitting the Antitrust Division to disclose matters occurring before the grand jury to the six specified attorneys in the Civil Division and the Untied States Attorney's Office and their designees "to assist in the review of this matter provided that this information will be treated as confidential and its use will be limited solely to the purposes of this order" (App., infra, 23a; see id. at 4a). In the following weeks, the Antitrust Division provided the specified government attorneys with four memoranda prepared by the Antitrust Division that analyzed and quoted from the documentary and testimonial evidence presented to the grand jury. Some subpoenaed documents were attached to these memoranda. After analyzing this information and discussing it with attorneys from the Antitrust Division, the Civil Division advised the Antitrust Division that a False Claims Act suit would be appropriate. App. infra, 4a. 2. Early in March 1985, the Antitrust Division informed the corporate respondents that it intended to file a civil complaint against them within two weeks (App., infra, 4a). On March 11, 1985, respondents moved in the United States District Court for the Southern District of New York for an order vacating the outstanding Rule 6(e) order and prohibiting the government from using any material obtained by the grand jury in preparing, filing, or litigating the civil suit (C.A. App. 46-47; App., infra, 4a). After a hearing, /5/ the district court denied the requested relief (id. at 4a, 21a). The court rejected respondents' argument that the government had failed to demonstrate a particularized need for the Rule 6(e) order. The district court stated at a hearing on respondents' motion, "(t)he entire impact of the papers (the government) submitted was to show there was a particularized need. * * * (Government counsel) went through a great deal of trouble to indicate why they were necessary * * * (C.A. App. 66). The district court also denied respondents' motion to enjoin the government from filing its complaint and to disqualify the Antitrust Division attorneys who had participated in the grand jury investigation from participating in the civil suit, "without prejudice to (its) renewal before the trial judge * * * assigned when (the) case is filed" (App., infra, 21a). /6/ The district court ordered that the complaint be filed under seal to protect the defendants' privacy. C.A. App. 76-77, 78. Shortly thereafter, the United States filed a civil complaint under seal in United States v. "A" Corp., No. 85-Civ.-2062 (SD.N.Y.), charging the three corporate respondents (and one company that is not a respodent) with: (1) bid rigging and price fixing, in violation of Section 1 of the Sherman Act, 15 U.S.C. 1; (2) conspiring to defraud the United States, in violation of the False Claims Act, 31 U.S.C. 3729-3731; (3) making false claims against the United States, in violation of the Foreign Assistance Act of 1961, 22 U.S.C. 2399b; and (4) unjust enrichment at common law. The complaint contains no quotation from or reference to any grand jury transcript or any document subpoenaed by the grand jury, no mention of any witness before the grand jury, and no other mention (express or implied) of the existence or the workings of the grand jury. See App., infra, 5a. 3. The court of appeals reversed (App., infra, 1a-18a). /7/ The court ruled that the district court's Rule 6(e) order should be vacated because the Antitrust Division had not demonstrated a particularized need for disclosure. /8/ The court of appeals recognized that under United States v. Sells Engineering, Inc., 463 U.S. 418 (1983), the district court was "'infused with substantial discretion'" in deciding whether to authorize disclosure (App., infra, 6a (citation omitted)), and it acknowledged that the particularized need standard "is a highly flexible one" that accommodates considerations peculiar to the government "'that weight for or against disclosure in a given case'" (id. at 7a (citation omitted)). In particular, the court of appeals noted (id. at 9a) that the reasons given in this case by the Antitrust Division for the disclosure of grand jury materials to the Civil Division "are perhaps more compelling on their face than those advanced" in Sells and Illinois v. Abbott & Associates, Inc., 460 U.S. 557 (1983). Nonetheless, the court of appeals concluded that the district court had improperly authorized disclosure because the Antitrust Division could have provided the Civil Division with "substantially the same information" by exercising its discovery powers under the ACPA (App., infra, 9a). The court acknowledged that this would entail "a certain amount of duplication" and would require the investment of "a substantial amount of additional government time and effort," but concluded that, under Sells, "such a factor can play no part in our analysis" (App., infra, 10a). Finally, despite the very narrow purpose for which disclosure was sought and permitted (see pages 6-7, supra), the court of appeals stated that the breadth of the district court's Rule 6(e) order "influenced" its assessment of the government's showing of particularized need (App., infra, 10a), since neither the government's request for disclosure nor the district court's Rule 6(e) order specified precisely what grand jury materials were to be revealed (App., infra, 11a). Accordingly, the court of appeals vacated the Rule 6(e) order (App., infra, 11a). The court then turned to the question whether the Antitrust Division attorneys who had conducted the grand jury investigation could, in preparing for and litigating the contemplated civil suits, use the grand jury materials that they had already seen without first obtaining a Rule 6(e) order (App., infra, 11a-17a). /9/ The court noted that the "issue presented here is more subtle" than the one that was decided by this Court in Sells, in which the Court "expressly left this question unresolved" (App., infra, 11a-12a). In particular, the court of appeals recognized that "(t)he threshold question is whether the continued access to grand jury materials by the attorneys who conducted the grand jury investigation -- and worked with the materials during that time -- constitutes 'disclosure'" for purposes of Rule 6(e) (App., infra, 12a). The court acknowledged that it "seems fictional at first glance" to characterize as "disclosure" the mere access by the same attorneys during a civil suit to the materials they had reviewed during the criminal investigation (ibid.). But the court concluded that this characterization was justified in this case because the sizeable volume of grand jury materials would invite the government attorneys to refresh their recollection by referring "repeatedly to the documents and transcripts of which they have prior knowledge and with which they may be partially familiar" (ibid.). The court of appeals buttressed its conclusion by referring to the reasons stated in Sells for limiting access to grand jury materials. App., infra, 13a-17a. The court recognized that one of these concerns -- the threat to the integrity of the grand jury from its potential manipulation as a civil investigative device (see Sells, 463 U.S. at 432-433) -- "is largely absent in this case," since the Antitrust Division's extensive pre-complaint discovery powers under the ACPA eliminate any incentive to employ the grand jury process merely to obtain information for use in a civil suit (App., infra, 13a-14a). /10/ For the same reason, the court of appeals acknowledged that a second concern identified in Sells -- that the automatic disclosure of grand jury materials would subvert the limitation on a party's discovery powers (see 463 U.S. at 433) -- also had little force here (App., infra, 14a-15a). However, the court of appeals concluded that the general secrecy concerns discussed in Sells -- such as the risk of an illegal or inadvertent disclosure and the chilling effect of that risk on a witness's willingness to testify freely before the grand jury (see 463 U.S. at 432) -- did apply here (App., infra, 15a-17a). The court stated that continued access by the attorneys who handled the grand jury investigation would involve only "limited" disclosure. But the court assumed that the continuing access by the attorneys would involve additional exposure of grand jury materials to secretaries and paralegals assisting the attorneys and that this would constitute a harmful, additional "disclosure" in contravention of Rule 6(e), even though those secretaries and paralegals may have previously seen the same material during the course of the grand jury's investigation (App., infra, 15a-16a). /11/ The court also stated that continued access to grand jury materials by the attorneys who appeared before the grand jury would tend to discourage grand jury witnesses from speaking candidly (id. at 16a). The court conceded that the "threat of affirmative mischief" was "somewhat less than that present in Sells" (ibid.), if not "minimal" (id. at 17a), and confessed that it was "tempted" to conclude that the Antitrust Division attorneys need not obtain a Rule 6(e) order in these circumstances (App., infra, 16a-17a). But the court nonetheless felt obliged to rule in respondents' favor because of "the reluctance imposed on use from above" (id. at 17a). Finally, the court of appeals rejected respondents' claim that the mere filing of the government's civil complaint, which "does not quote from or refer to any grand jury materials," was itself an unauthorized "disclosure" of grand jury material (App., infra, 17a). The court therefore granted respondents' request for relief "only to the extent that we prohibit any further access to or use of grand jury materials by the (government) in the pending civil action, unless and until" the government obtains a Rule 6(e) order (App., infra, 17a). /12/ REASONS FOR GRANTING THE PETITION This case presents two related questions of substantial practical importance to the government's ability to enforce federal law in civil litigation. In United States v. Sells Engineering, Inc., 463 U.S. 418 (1983), the Court held that grand jury materials may not be disclosed, for use in civil litigation, to attorneys of the Department of Justice who had no part in the grand jury investigation, unless the government makes the showing of particularized need required by Fed. R. Crim. P. 6(e)(3)(C)(i) and obtains a court order authorizing such disclosure. The Court expressly declined to address "any issue concerning continued use of grand jury materials, in the civil phase of a dispute, by an attorney who himself conducted the criminal proceeding." 463 U.S. at 431 n.15. /13/ The court of appeals has now decided the issue reserved in Sells, ruling that the same government attorneys who conducted the grand jury proceeding must obtain a Rule 6(e) order before reviewing grand jury materials in connection with subsequent civil litigation. That ruling, which is contrary to the plain language of Rule 6(e) and is not justified by the legislative history of the Rule or by any of the concerns underlying this Court's ruling in Sells, will impose a significant additional burden on the Department of Justice in the conduct of civil litigation. The court of appeals greatly exacerbated the adverse practical effect of its ruling by holding that the delay and expense involved in re-obtaining through other means the testimony and documents obtained by the grand jury can play "no part" in determining whether the government has shown the "particularized need" required by Rule 6(e). App., infra, 10a. This Court made clear in Sells that, in ruling on disclosure requests, district court should take into account "any relevant considerations, peculiar to Government movants, that weight for or against disclosure in a given case" (463 U.S. at 445). The government set forth compelling considerations in this case, but the court of appeals ruled, in effect, that the government cannot obtain a Rule 6(e) order authorizing any use of grand jury materials, no matter how valid or limited that use may be, if those materials could be re-obtained through other means, no matter how burdensome they may be. The combined effect of these two rulings is that even where there is no additional dissemination of grand jury materials (i.e., where they will be used by the same government attorneys) or where there is only a very limited additional dissemination for an important and wholly legitimate purpose that is unique to the federal government (i.e., where the materials will be disclosed to government attorneys solely for the purposes of consultation on government enforcement policy), the government must either re-acquire the same materials through costly and time-consuming alternatives or forego their use entirely. Because the decision below will require the government to squander scarce resources or forego the enforcement of valid civil claims but will not materially advance the secrecy objectives underlying this Court's decision in Sells, review by this Court is warranted despite the absence of a conflict among the circuits. 1.a. The Antitrust Division, the Civil Division, and many U.S. Attorney's offices often use the same attorneys in successive, related criminal and civil investigations. Both before and since this Court's decision in United States v. Procter & Gamble Co., 356 U.S. 677 (1958), it has been the understanding of the Department of Justice that, if the decision is made not to seek an indictment and the same attorneys are used, these attorneys may review the grand jury materials, to which they have already had access, during the course of subsequent investigation and preparation for a civil suit. The Second Circuit's ruling, which now forbids that practice in that circuit, will mean that some important litigation will be needlessly expensive and some will not be brought at all. Conducting a duplicate civil investigation after the completion of a criminal investigation will often require substantial additional time. This is particularly true in complex antitrust cases because of the volume of documents and testimony that must be collected and analyzed. In order to avoid problems of staleness or the running of the statute of limitations, the Antitrust Division may be forced to conduct simultaneous but separate criminal and civil investigations whenever there is a realistic possibility that civil litigation will ensue. /14/ The cost of that course to the government, including the depletion of scarce attorney resources, would be substantial. As Chief Justice Burger observed in Sells, that cost is a matter of serious public concern (463 U.S. at 469-70 (dissenting opinion)). In some cases, otherwise appropriate civil litigation in the Second Circuit may not be pursued at all, because the Antitrust Division lacks the resources necessary to engage in double staffing or could not predict at the outset that a simultaneous separate civil investigation would be a prudent use of the Division's resources. /15/ The major changes in the Division's longstanding practice that would be required in the Second Circuit by the court of appeals' interpretation of Rule 6(e) and the wholly unjustified new burden that this decision would place on the government's ability to enforce federal civil law warrant this Court's intervention. b. The court of appeals recognized (App., infra, 12a) that this case presents the question, reserved in Sells, whether the use of grand jury materials by the same attorneys who participated in the grand jury's investigation constituted a "disclosure" within the meaning of Rule 6(e). The common meaning of that word, which is not defined in the Rule, would only forbid dissemination of grand jury materials to a person who has not previously seen them. The word "disclose" means to reveal (Webster's Third New International Dictionary 645 (1976 ed.)), and no revelation occurs when, as here, the attorneys who participated in a grand jury investigation review the same materials that were properly obtained by the grand jury during the course of its investigation. The court of appeals agreed that calling such review a "disclosure" "seems fictional at first glance" (App., infra, 12a). But the court nonetheless reasoned that, since the amount of grand jury materials in this case was too great for any person to commit to memory, the attorneys preparing the civil suit would need to refer to at least some of those materials, and concluded that "any resort to th(o)se materials by the(se) attorneys * * * to refresh their recollection * * * is tantamount to a further disclosure" (ibid.). That construction of the term "disclosure" is highly artificial. /16/ As the Eighth Circuit recently held, "(f)or there to be a disclosure (under Rule 6(e)), grand jury matters must be disclosed to someone" (United States v. Archer-Daniels-Midland Co., No. 85-1050 (Feb. 24, 1986), slip op. 12 (emphasis in original)), and it is entirely unrealistic to construe the investigating attorneys' reexamination of these materials as a "disclosure" to themselves. c. The legislative history of Rule 6(e) also does not indicate that the drafters of the Rule or Congress intended to forbid the longstanding practice followed by the Department of Justice. Neither the advisory committee notes to the original version of Rule 6(e) or to its amendments nor the legislative history of the 1977 congressional revisions of the Rule contain any hint that an attorney who participated in the grand jury investigation may not refer to the grand jury materials during the course of a subsequent civil suit. See 18 U.S.C. App. at 567-572; S. Rep. 95-354, 95th Cong., 1st Sess. (1977); H.R. Rep. 95-195, 95th Cong., 1st Sess. (1977). Indeed, to the extent that the legislative history touches on this matter, it suggests that the Department's practice is consistent with the purposes underlying the Rule. As the Court pointed out in Sells, "(t)he draftsmen of the original Rule 6" provided that, in certain circumstances, government attorneys were entitled to obtain automatic access to grand jury materials "'inasmuch as they may be present in the grand jury room during the presentation of evidence.'" 463 U.S. at 428 (quoting Fed. R. Crim. P. 6(e) advisory committee note, 18 U.S.C. (1976 ed.) App. at 1411). The advisory committee's notes to the original Rule 6(e) therefore suggest that the subsequent review of grand jury materials by those attorneys (and their supervisors) who either did appear or were entitled to appear before the grand jury presents no secrecy concern. d. The court of appeals' definition of "disclosure" also does not materially further the purpose of the Rule, which is to minimize the dissemination of grand jury materials. Attorneys who participated in the grand jury proceedings are already aware of the subject matter and content of the grand jury materials. It can hardly be suggested that their reliance on their own memories of those materials in preparing for and litigating a civil suit or in shaping the course of civil discovery involves a "disclosure." See Archer-Daniels-Midland, slip op. 12 ("(w)e do not believe that an attorney's recollection of facts learned from his prior grand jury participation can be considered (a) disclosure" within the meaning of Rule 6(e)). And there is no virtue in requiring an attorney to rely on his possibly inaccurate memory when documents are available. Cf. United States v. Jacobsen, 466 U.S. 109, 119 (1984) ("avoiding the risk of a flaw in the employees' recollection * * * hardly enhances any legitimate privacy interest"). /17/ In Sells, the Court identified three reasons for the reading of Rule 6(e) adopted in that case (463 U.S. at 431-434). /18/ The court of appeals recognized that two of those concerns -- the risk of misuse of the grand jury for the purposes of uncovering evidence for a civil suit, and the risk of circumvention of the limitations imposed on the government's civil discovery powers -- do not exist in the present case because of the Antitrust Division's broad precomplaint discovery powers under the ACPA (App., infra, 13a-15a; see also page 11 note 10, supra). /19/ But the court of appeals thought that the Court's remaining concern in Sells -- the consequences of dissemination itself -- was applicable here (App., infra, 15a, citing Sells, 463 U.S. at 431). The court of appeals identified only two reasons for such concern, and neither one supports its decision. i. First, although the court of appeals acknowledged that permitting the same attorneys to use grand jury materials poses no significant problem, the court believed -- citing Rule 6(e)(3)(A)(ii) /20/ -- that access by secretaries and paralegals would pose a "significant" additional risk of "illegal or inadvertent disclosure" (App., infra, 15a). This conclusion is wrong. In the analogous situation of the attorney-client privilege, the attorney's secretary and support staff are considered to be extensions of the attorney, and communication of a client's confidences to such persons does not destroy the privilege. /21/ Moreover, the court of appeals misconstrued Rule 6(e)(3)(A)(ii). The congressional reports and advisory committee notes to that provision show that it was adopted to permit attorneys to reveal grand jury materials to assistants such as auditors, investigators, or attorneys from federal agencies; /22/ there is no hint in the legislative history that the provision was necessary or designed to permit an attorney's secretary or paralegal to have access to grand jury materials. /23/ In fact, Sells itself appeared to recognize that the disclosure to an attorney permits secretaries and paralegals to use grand jury materials when necessary. See 463 U.S. at 420. /24/ ii. Second, the court of appeals thought that any use of grand jury materials in civil proceedings would make grand jury witnesses less willing to testify freely and candidly (App., infra, 16a). But the Second Circuit itself recently observed that, since the 1970 amendment to the Jencks Act, 18 U.S.C. 3500(e)(2), made the release of grand jury testimony "a frequent occurrence * * * (e)very sophisticated grand jury witness" "knows that, if he becomes a witness at trial, his grand jury testimony will most likely be revealed to the public. For future witnesses trying to decide whether to testify before grand juries, the marginal deterrent effect" of limited disclosure in any particular case "can only be trivial." Executive Securities Corp. v. Doe, 702 F.2d 406, 409-410 n.4 (2d Cir.), cert. denied, 464 U.S. 818 (1983). /25/ In any event, this concern, by itself, is insufficient to overcome the straightforward meaning of the term "disclosure." 2. The court of appeals greatly exacerbated the adverse effect of the holding described above by also ruling that the burden of duplicate discovery is entitled to no weight in determining whether there is a "particularized need" justifying a Rule 6(e) order. Accordingly, because this aspect of that court's decision is closely related to the one discussed above, the Court should review that issue as well. Rule 6(e)(3)(C)(i) provides that "(d)isclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made * * * when so directed by a court preliminary to or in connection with a judicial proceeding * * * " upon a showing of particularized need. /26/ In seeking authorization to disclose certain grand jury materials to the Civil Division for consultative purposes in this case, the Antitrust Division clearly made such a showing of particularized need, and the district court so held. The Antitrust Division needed the expert advice of the Civil Division in determining whether to file a civil suit under a statute for which the Civil Division has the primary federal enforcement responsibility. /27/ Of course, the Antitrust Division attorneys who conducted the grand jury investigation and would prosecute the civil suit could determine whether respondents had violated the False Claims Act. But these attorneys could not be certain whether bringing suit under the Act on these facts would be consistent with the overall enforcement policy of the Department of Justice, as developed by the Civil Division. At the same time, the Civil Division could not offer the Antitrust Division meaningful guidance on the matter without knowing the particular facts of this case, and the Civil Division could not itself obtain the facts, since it lacks the Antitrust Division's pre-complaint discovery powers. See Sells, 463 U.S. at 433. The court of appeals accepted all of this (App., infra, 7a-9a) but nevertheless concluded that the Antitrust Division had not demonstrated a particularized need for the grand jury materials because the Division could have reobtained relevant information pursuant to the ACPA (id. at 9a-11a). In essence, the court of appeals ruled that, because the Antitrust Division could have duplicated much of the necessary information through the ACPA and then revealed it to the Civil Division (with citations to CID returns and depositions, rather than to grand jury documents and transcripts), the Antitrust Division was obliged to do so, rather than seek a disclosure order. The court acknowledged that this course would have entailed time-consuming duplication of effect (id. at 10a), but it ruled that such factors "can play no part in our analysis" (ibid.). That ruling is inconsistent with the Seventh Circuit's post-Sells application of Rule 6(e) in In re Grand Jury Proceedings (Miller Brewing Co.), 717 F.2d 1136, 1138 (1983), which recognized that the time and expense of pursuing alternative discovery procedures may be considered when the government seeks a Rule 6(e) order. Moreover, the court of appeals ultimately gave no weight to either the importance or the narrowness of the purpose for which the district court authorized disclosure. Under the district court's Rule 6(e) order (see App., infra, 23a), the Civil Division was not authorized to publish the materials or use them for its own purposes, but was limited to a consultative role in the False Claims Act portion of a lawsuit to be brought and litigated by the Antitrust Division. The court of appeals failure to consider the nature of the disclosure is squarely at odds with this Court's ruling in Sells that courts should take into account "any relevant considerations, peculiar to Government movants, that weight for or against disclosure in a given case." 463 U.S. at 445. The effect of the court of appeals' ruling here is to set a standard for disclosure when the government is the movant that is much stricter than the one that the Court contemplated in Sells. This standard would needlessly encumber the government's ability to enforce federal law, without making any material contribution to legitimate secrecy concerns. Accordingly, review of this aspect of the decision below is also warranted. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General DOUGLAS H. GINSBURG RICHARD K. WILLARD Assistant Attorneys General LOUIS R. COHEN Deputy Solicitor General W. STEPHENS CANNON Deputy Assistant Attorney General PAUL J. LARKIN, JR. Assistant to the Solicitor General ROBERT B. NICHOLSON EDWARD T. HAND DOUGLAS N. LETTER ANNA SWERDEL CAROLYN G. MARK Attorneys MARCH 1986 /1/ Because of the grand jury secrecy issues involved in this case, both the district court and the court of appeals ordered that the civil complaint filed by the government be kept under seal (C.A. App. 76-77, 78; App., infra, 20a). /2/ Tallow is an animal by-product used chiefly in the manufacture of soap, animal feed, and lubricants. /3/ The government may enforce the Sherman Act through both criminal prosecutions and civil suits. See 15 U.S.C. 1, 4, 15a. /4/ As the memorandum explained (C.A. App. 10-11): The disclosure of information is necessary to ensure the proper functioning of the decision-making process of the U.S. Department of Justice. In order properly to exercise its prosecutorial discretion, review of the memoranda by the Civil Division is necessary to ensure that the Department acts consistently in its enforcement efforts. The review is also important to ensure that prosecution of this matter would carry out Department policy regarding the False Claims Act. Moreover, without disclosure of this information, the Antitrust Division would not be able to take full advantage of the Civil Division's expertise in enforcing cases under the False Claims Act. Coordination between the Civil Division and the Antitrust Division is necessary to ensure the fair and even-handed administration of justice. It would be more difficult for the Department to achieve consistency and uniformity in its enforcement efforts if its officials were unable to learn the facts of relevant matters being investigated by staff attorneys in other divisions. This uniformity of enforcement is necessary not only to the Department but to the public as well. Without uniform enforcement, the public would have difficulty rationally choosing courses of action which might be affected by the antitrust and the civil fraud laws. /5/ Respondents' motion was originally assigned to Judge Brieant. After a hearing (C.A. App. 50-58), Judge Brieant denied the motion with prejudice, on the ground that it should be presented to Judge Palmieri, who had issued the Rule 6(e) order (C.A. App. 59). After a second hearing (id. at 60-78), Judge Palmieri denied respondent's motion, and it was his ruling that was later set aside by the court of appeals. /6/ The district court also concluded that it would be unfair to enjoin the filing of the complaint since the statute of limitations might run in the near future on some of these claims. C.A. App. 70-71. /7/ After filing a notice of appeal, respondents asked the court of appeals for a protective order prohibiting the government from using grand jury materials pending appeal in preparing, filing, or litigating the proposed civil action and prohibiting the Antitrust Division from making any further disclosure to the Civil Division. The court of appeals refused to prohibit the United States from filing its complaint, but directed that the complaint be filed under seal pending the resolution of respondents' appeal. App., infra, 19a. The court also prohibited the disclosure of grand jury material to anyone who was not already privy to the information (id. at 20a). /8/ However, the court of appeals rejected respondents' argument that the district court had erred by granting the order after an ex parte hearing pursuant to Fed. R. Crim. P. 6(e)(3)(D) (App., infra, 5a-6a). /9/ Rule 6(e)(3)(A)(i) provides that disclosure otherwise prohibited by Rule 6(e) may be made to "an attorney for the government for use in the performance of such attorney's duty." See page 2, supra. /10/ Under the ACPA, the Attorney General or the Assistant Attorney General for the Antitrust Division, before a civil complaint is filed, may require "any person" to produce documentary material, give written answers to interrogatories, provide oral testimony, or furnish any combination of the above, whenever he has reason to believe that this information is relevant to a civil antitrust investigation. 15 U.S.C. 1313(a); see Associated Container Transp. (Australia) Ltd. v. United States, 705 F.2d 53, 58 (2d Cir. 1983). The court of appeals recognized (App., infra, 9a) that this power should be broadly construed. See Associated Container, 705 F.2d at 58. /11/ The court of appeals stated that this was a substantial problem because "it seems probable" that new support personnel might be needed to work on the civil case and because disclosure to secretaries and paralegals, "even if not in itself in violation of (Rule 6(e)), would increase the risk of inadvertent disclosure to nongovernment personnel" (App., infra, 16a). /12/ Respondents did not contend that an attorney who participated in the grand jury proceedings may not rely on his recollection of the information learned by the grand jury in those proceedings in the litigation of a subsequent civil case (App., infra, 17a). Accordingly, the court of appeals expressly declined to consider that question (ibid.). /13/ The Chief Justice, joined in dissent by Justices Powell, Rehnquist, and O'Connor, read the Court's decision as "allowing any Justice Department attorney who has participated in the grand jury investigation or prosecution -- and thus already had had access to the grand jury materials -- to make further use of those materials in preparing and litigating a related civil case" (463 U.S. at 473). /14/ The court of appeals' ruling does not prohibit the same attorneys from conducting successive criminal and civil investigations. (The court stated that since respondents had not contended that the attorneys who conduct a criminal investigation are, ipso facto, disqualified from litigating the civil case, the court would not address that question (App., infra, 17a).) But even where time permits this course, (a) successive investigations may be almost as wasteful of attorney resources as double staffing, and (b) the attorneys may be challenged repeatedly in the civil proceedings to establish that they did not make improper use of grand jury materials to which they once had access. /15/ The Second Circuit's ruling creates uncertainty that will influence the Department's activities elsewhere. The Antitrust Division's field offices and many of the United States Attorneys' offices in other circuits are small and generally use the same attorneys in both criminal and civil cases. These offices may be forced to alter this practice in important cases to avoid the risk of being found to have violated Rule 6(e). /16/ The only authority cited by the court of appeals was the statement in the Ninth Circuit's opinion in Sells that "'(e)ach day this order remains effective the veil of secrecy is lifted higher * * * by the continued access of those to whom the materials have already been disclosed.'" App., infra, 12a-13a (asterisks in original) (quoting In re Grand Jury Investigation No. 78-184 (Sells, Inc.), 642 F.2d 1184, 1188 (1981), aff'd, 463 U.S. 418 (1983)). But the Ninth Cicuit was making an entirely different point. In Sells, the government attorneys who handled the grand jury investigation physically handed over -- and therefore clearly "disclosed" -- grand jury materials to Civil Division attorneys who had not appeared before the grand jury. The Ninth Circuit did not purport to define "disclosure"; rather, the passage quoted by the court below responded to the government's argument that the question whether a Rule 6(e) order was required was moot, since the transfer had already taken place. See 463 U.S. at 422 n.6. /17/ Nor does this Court's decision in Sells support the court of appeals' ruling. There, one group of attorneys physically handed over grand jury transcripts and documents to other attorneys who had not been involved in the grand jury proceeding (463 U.S. at 420-422), so there clearly was a "disclosure." (By contrast, in this case the only disclosure of grand jury materials was by the Antitrust Division to the Civil Division solely for consultation and pursuant to a Rule 6(e) order.) As noted above, the Court in Sells therefore expressly declined to resolve the question presented in this case. 463 U.S. at 431 n.15. /18/ The secrecy of grand jury proceedings is also justified on other grounds not relevant here. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979); United States v. Procter & Gamble Co., 356 U.S. at 681-682 n.6. /19/ Respondents have never suggested that the grand jury proceedings were not conducted for entirely bona fide criminal investigative purposes. Any such allegation in another case could be dealt with on its merits. /20/ Rule 6(e)(3)(A)(ii) provides that disclosures otherwise prohibited by Rule 6(e) may be made to "such government personnel (including personnel of a state or subdivision of a state) as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law." See page 2, supra. /21/ See, e.g., United States v. Kovel, 296 F.2d 918, 921 (2d Cir. 1986); Burlington Industires v. Exxon Corp., 65 F.R.D. 26, 40 (D. Md. 1974); Zenith Radio Corp. v. RCA, 121 F.Supp. 792, 794 (D. Del. 1974); 2 D.Louisell & C. Mueller, Federal Evidence Section 209, at 754 (1985); C. McCormick, Evidence Section 91, at 218 (3d ed. 1984); 2 J. Weinstein & M. Berger, Weinstein's evidence Paragraph 503(a)(3)(01), at 503-524 (1985); 8 J. Wigmore, Evidence in Trials at Common Law Section 2301, at 583 (J. McNaughton rev. ed. 1961). /22/ See 18 U.S.C. App. at 568, 569-570; S. Rep. 95-354, supra, at 6-7; H.R. Rep. 95-195, supra, at 3-4. /23/ In Sells, this Court commented that the 1977 amendment was necessary "because Justice Department attorneys found that they often needed active assistance from outside personnel -- not only investigators from the Federal Bureau of Investigation, IRS, and other law enforcement agencies, but also accountants, handwriting experts, and other persons with special skills" (463 U.S. at 436 (emphasis added)). /24/ As the Court stated (463 U.S. at 420 (emphasis added)): "The question in this case is under what conditions attorneys for the Civil Division of the Justice Department, their paralegal and secretarial staff, and all other necessary assistants, may obtain access to grand jury materials * * * ." /25/ Antitrust Division attorneys who conduct a grand jury investigation routinely inform witnesses that the grand jury is inquiring whether there has been a criminal violation of the Sherman Act. It is thus unlikely that witnesses who are testifying about possible criminal activity punishable by up to three years' imprisonment will be "chilled" merely by the prospect that their testimony might lead to a civil case being brought instead of or in addition to any criminal action. /26/ That is, persons seeking such disclosure 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" (Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. at 222 (footnote omitted)). /27/ Rule 6(e) orders can properly be obtained in aid of civil investigations. See, e.g., United States v. Baggot, 463 U.S. 476 (1983). APPENDIX