In re Special November 1975 Grand Jury

433 F. Supp. 1094, 2 Fed. R. Serv. 120, 1977 U.S. Dist. LEXIS 15049
CourtDistrict Court, N.D. Illinois
DecidedJuly 8, 1977
DocketNo. 76 GJ 1301
StatusPublished
Cited by2 cases

This text of 433 F. Supp. 1094 (In re Special November 1975 Grand Jury) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Special November 1975 Grand Jury, 433 F. Supp. 1094, 2 Fed. R. Serv. 120, 1977 U.S. Dist. LEXIS 15049 (N.D. Ill. 1977).

Opinion

MEMORANDUM OPINION AND ORDER

PARSONS, Chief Judge.

Movants, Arrow Oil Corporation, Texoil Exploration, F. Gaylord Nance and Richard T. Fogle, come before me seeking to quash a grand jury subpoena duces tecum served upon the accounting firm of Peat-Marwick, Mitchell and Company. This subpoena seeks production of records presented to Peat-Marwick to enable the firm to prepare Audit Reports for Meyer, Brown and Platt, attorneys for the Continental Illinois National Bank and Trust Company of Chicago. These Reports apparently concern transactions concluded by Messrs. Nance and Fogle while they were Trust officers for the Continental Bank. Movants contend that the records were part of settlement negotiations between Nance, Fogle, and the Continental Bank, presented to Peat-Marwick with the understanding that they would not later be disclosed to any third party.

ISSUES

The issues here are two: (1) whether there is a Fifth Amendment privilege in the subpoenaed documents and (2) whether Federal Rule of Evidence 408 is applicable (by analogy) to the Grand Jury proceeding and provides a basis for granting movant’s petition to quash the Grand Jury subpoena. The latter issue seems to be one of first impression.

A better understanding of how this case comes before me is possible when a brief statement of the factual background is set forth. In May of 1976 Nance and Fogle met with Continental Bank officials, at which time they were told that alleged improprieties in transactions handled by Nance and Fogle as trust officers were being investigated. Continental Bank in[1096]*1096formed Nance and Fogle that the law firm of Meyer, Brown and Platt and the accounting firm of Peat-Marwick would be conducting an internal investigation and were to prepare a Report of any irregularities discovered in these transactions.

Nance, an attorney, and Fogle produced “personal” papers and records for inspection by Peat-Marwick in July, 1976, apparently with the understanding that they would be treated in the same fashion as the Bank’s corporate records or those of Arrow Oil or Texoil Exploration.. There is some dispute between the parties as to the exact nature of the agreement between PeatMarwick, on the one hand, and Nance and Fogle on the other, relating to disclosure of corporate or personal records to either Continental Bank or to Federal authorities.

In any case, on February 2, 1977 the Bank transmitted to the United States Attorney and the FBI some 38 Auditor’s Reports, prepared by Peat-Marwick, Mitchell and Company, dealing with Nance and Fogle’s Trust transactions. Federal investigators determined that there may have been violations of federal criminal law: thus, the Special November 1975 Grand Jury thereupon subpoenaed working papers and records then in custody of Peat-Marwick, which the Accounting firm had allegedly used as a partial basis for the aforementioned 38 Auditors Reports.

Nance and Fogle, et al., as third parties, now seek to quash the subpoena duces tecum directed to the custodian of the records, Peat-Marwick, Mitchell and Company.

I. Fifth Amendment

The Fifth Amendment claim can be dealt with summarily. The Government has erected a proverbial straw house relating to Fifth Amendment rights; movants have never raised any Fifth Amendment claims relating to production of records in the hands of Peat-Marwick, a third party.

There is no currently recognized Fifth Amendment privilege as to corporate records. United States v. Habig, 474 F.2d 57, 61 (7th Cir. 1973). The Fifth Amendment privilege against compulsory self-incrimination is personal and may not be asserted on behalf of some other person or entity. Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973); Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951).

Where a Grand Jury is seeking production of documents, only the person in actual possession of same may assert a personal privilege not to disclose through a motion to quash or to modify a subpoena. But an owner of a document may not assert such a privilege in order to prevent disclosure by another person who is then in possession of the documents in question. Couch v. United States, supra, 409 U.S. at 333, 93 S.Ct. 611. Cf., Schwimmer v. United States, 232 F.2d 855 (8th Cir. 1956), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed.2d 52 (1970).

II. F.R.E. 408 & 1101(d)(2)

The potential application of Federal Rule of Evidence 4081 has been hotly disputed by the parties. Nevertheless Federal Rule of Evidence 1101(d)(2) provides that the Rules (other than with respect to privileges)

“do not apply * * * to proceedings before grand juries.”

The Government contends that Rule 1102(d)(2) is dispositive of the motion at bar. Movants, on the other hand, argue [1097]*1097that despite Rule 1101(d)(2), in the interest of Justice and to insure the right to a fair trial, the protection of Rule 408 should be extended to the present situation. Movants further contend that Congress in enacting FRE 408 (to encourage compromise and dispute settlements, to relieve court congestion, and to reduce expenditures) should, by analogy, also be applicable here. But such an extension is specious.

The Government has countered with evidence that Sub-Committee on the Judiciary had expressed concern that,

“the parties should not be able to immunize from admissibility documents otherwise discoverable merely by offering them in a compromise negotiation.” 93rd Congress, 2nd Session, 93-1277, October 18, 1974, p. 10, U.S.Code Cong. & Admin. News 1974, p. 7057.

Of course, since the Federal Rules of Evidence only apply in trial proceedings and not to Grand Jury investigations, the legislative history of Rule 408 does not apply in the first instance, particularly given the clear language of Rule 1101(d)(2).

Movant’s assertion that the motion to quash should be granted “as a matter of the administration of justice” is, on balance, outweighed by countervailing public policy considerations, which give grand juries wide investigatory powers. Yet such power is not entirely unfettered.

“Federal courts have inherent powers over their process to prevent abuse, oppression and injustice and the process of the court comprehends proceedings before the Grand Jury and the means whereby witnesses are compelled to attend such proceedings.”

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Related

In Re National Trade Corp.
28 B.R. 872 (N.D. Illinois, 1983)
In Re Grand Jury Investigation
459 F. Supp. 1335 (E.D. Pennsylvania, 1978)

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Bluebook (online)
433 F. Supp. 1094, 2 Fed. R. Serv. 120, 1977 U.S. Dist. LEXIS 15049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-special-november-1975-grand-jury-ilnd-1977.