In re Shopping Carts Antitrust Litigation

95 F.R.D. 299, 34 Fed. R. Serv. 2d 778, 1982 U.S. Dist. LEXIS 11016
CourtDistrict Court, S.D. New York
DecidedFebruary 9, 1982
DocketNo. M-21-29-CLB; MDL No. 451-CLB
StatusPublished
Cited by27 cases

This text of 95 F.R.D. 299 (In re Shopping Carts Antitrust Litigation) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Shopping Carts Antitrust Litigation, 95 F.R.D. 299, 34 Fed. R. Serv. 2d 778, 1982 U.S. Dist. LEXIS 11016 (S.D.N.Y. 1982).

Opinion

MEMORANDUM AND ORDER

[Discovery]

BRIEANT, District Judge.

These actions were preceded in time by a criminal antitrust action, United States v. Roblin Industries, Inc., 80 Cr. 530, Indictment filed September 4, 1980 (S.D.N.Y.), in which four corporate defendants herein pleaded nolo contendere to an indictment charging price fixing in the shopping cart manufacturing industry. The plaintiffs now seek treble damages in this private civil action. Plaintiffs filed fifty-six joint interrogatories with subparts totaling one hundred ninety-one questions. Defendants filed joint objections to many of these questions. The parties have resolved their disputes as to the bulk of the interrogatories, however, there still remain some disputed items.

By notice of motion filed October 29, 1981, plaintiffs seek an order pursuant to Rule 37, F.R.Civ.P., overruling defendants’ objections and compelling answers to interrogatories 15,19, 27, 28, 52 and 53, which all defendants have refused to answer, and interrogatory 35, which only defendants Gleason and Technibuilt have refused to answer.

Interrogatories 15 and 19 — Grand Jury Secrecy

Interrogatory 15 requests that the corporate defendants identify those persons who testified before the grand jury in United States v. Roblin Industries and state the date(s) on which these individuals gave testimony.1 Interrogatory 19 requests that the corporate defendants identify those persons who were interviewed by the Government in connection with its investigation of price fixing in the shopping cart industry; give the date or dates of each interview; and identify each document describing the nature, substance or content of the interview.2

Defendants’ grand jury secrecy objection is grounded upon Rule 6(e), F.R.Crim.P., and the recent decision of the Supreme Court in Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979), and its progeny. De[302]*302fendants’ basic claim is that Rule 6(e) articulates the long established policy of secrecy surrounding grand jury proceedings and that Douglas Oil rearticulated this policy and “reaffirmed the requirement that the party seeking disclosure of grand jury matters must demonstrate ‘particularized need’ before the information sought can be revealed.” (Defendants’ Memorandum in Opposition to Plaintiffs’ Motion to Compel Discovery, docketed February 8, 1982 (hereinafter Defendants’ “Memo in Opposition”) at 4. See generally, 8 Moore’s Federal Practice f 6.05, et seq. The defendants have assumed therefrom that since there is a policy of secrecy surrounding grand jury proceedings, that policy must also protect the secrecy of the names of grand jury witnesses, the names of those interviewed by the Government in the course of its criminal investigation, and any corporate documents discussing the interviews. Defendants have misread Rule 6(e) and misinterpreted the case law.

Rule 6(e) provides that:

“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 [the government personnel exception] shall not disclose matter 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.”

By its terms, it is evident that this Rule itself does not prohibit the corporate defendant in a criminal proceeding or in a separate civil proceeding, or its attorney, from disclosing any information it has about the grand jury proceedings.

The case law surrounding “grand jury secrecy” involves three distinctly different types or categories of grand jury related information, each with its own protections and problems.

The first category deals with the availability of grand jury testimony through release of the actual transcripts or the deposition of the reporter, grand juror or attorney. E.g., United States v. Proctor & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958) (“long established policy of maintaining secrecy of the grand jury proceedings in federal courts”); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240, 3 L.Ed.2d 1323 (1959) (this “policy” is “older than the nation itself”).

Defendants place much weight on the decision of the Supreme Court in Douglas Oil, supra, however, it is evident from that decision that the Court was only considering issues within this first category, the disclosure of grand jury transcripts and materials:

“. .. two intertwined questions concerning a civil litigant’s right to obtain transcripts of federal criminal grand jury proceedings. First, what justification for disclosure must a private party show in order to overcome the presumption of grand jury secrecy applicable to such transcripts? Second, what court should assess the strength of this showing — the court where the civil action is pending, or the court that acts as custodian of the grand jury documents?” 441 U.S. at 213, 99 S.Ct. at 1669 [footnote omitted].

The Court’s opinion simply reaffirmed the “particularized need” standard that applies to the disclosure of grand jury transcripts first enunciated many years earlier in United States v. Proctor & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958) and Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959). The Court spelled out the balancing test to be conducted in determining whether transcripts are to be disclosed and set forth the proper procedure for judicial determination of these issues when the grand jury transcripts are in the “custody” of a different district court than the court in which the civil action is pending.

The interrogatories involved here do not seek the transcripts of the grand jury testimony or the substance of that testimony through the deposition of the prosecutor, [303]*303reporter, or a member of the grand jury. Accordingly, neither Douglas Oil nor the other cases cited by the defendants which deal with grand jury transcripts are dispositive of this issue.3

Furthermore, it appears to this Court that Douglas Oil in fact supports the disclosure of the information sought in interrogatories 15 and 19. Implicit throughout the Douglas Oil decision is the requirement that applicants for grand jury transcripts present the court with a strong factual foundation favoring disclosure. In order to lay such a factual foundation, the applicant must know the names of the grand jury witnesses, which leads us to the second category. Douglas Oil, supra at 218-23, 99 S.Ct. at 1672-75.

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Bluebook (online)
95 F.R.D. 299, 34 Fed. R. Serv. 2d 778, 1982 U.S. Dist. LEXIS 11016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-shopping-carts-antitrust-litigation-nysd-1982.