United States v. Sells Engineering, Inc.

463 U.S. 418, 103 S. Ct. 3133, 77 L. Ed. 2d 743, 1983 U.S. LEXIS 97, 51 U.S.L.W. 5059, 52 A.F.T.R.2d (RIA) 5361

Opinions

Justice Brennan

delivered the opinion of the Court.

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, compiled with the assistance and knowledge of other Justice Department attorneys, for the purpose of preparing and pursuing a civil suit. We hold that such access is permissible only when the Government moves for court-ordered disclosure under Federal Rule of Criminal Procedure 6(e)(3)(C)(i) and makes the showing of particularized need required by that Rule.

Respondents Peter A. Sells and Fred R. Witte were officers of respondent Sells Engineering, Inc. That company had contracts with the United States Navy to produce airborne electronic devices designed to interfere with enemy radar systems. In 1974, a Special Agent of the Internal Revenue Service began a combined criminal and civil administrative investigation of respondents. The Agent issued administrative summonses for certain corporate records of Sells Engineering. When the corporation refused to comply, the Agent obtained a District Court order enforcing the summonses. Enforcement was stayed, however, pending appeal.

While the enforcement case was pending in the Court of Appeals, a federal grand jury was convened to investigate charges of criminal fraud on the Navy and of evasion of federal income taxes. The grand jury subpoenaed, and respondents produced, many of the same materials that were the subject of the IRS administrative summonses.¹ The grand jury indicted all three respondents on two counts of conspiracy to defraud the United States² and nine counts of tax fraud.³ Respondents moved to dismiss the indictment, alleging grand jury misuse for civil purposes. Before the motion was decided, however, the parties reached a plea bargain. The individual respondents each pleaded guilty to one count of conspiracy to defraud the Government by obstructing an IRS investigation. All other counts were dismissed, and respondents withdrew their charges of grand jury misuse.

Thereafter, the Government moved for disclosure of all grand jury materials to attorneys in the Justice Department’s Civil Division, their paralegal and secretarial assistants, and certain Defense Department experts, for use in preparing and conducting a possible civil suit against respondents under the False Claims Act, 31 U. S. C. §231 et seq4 Respondents opposed the disclosure, renewing their allegations of grand jury misuse. The District Court granted the requested disclosure, concluding that attorneys in the Civil Division are entitled to disclosure as a matter of right under Rule 6(e)(3)(A)(i). The court also stated that disclosure to Civil Division attorneys and their nonattorney assistants was warranted because the Government had shown particularized need for disclosure.⁵ The Court of Appeals vacated and remanded, holding that Civil Division attorneys could obtain disclosure only by showing particularized need under Rule 6(e)(3)(C)(i), and that the District Court had not applied a correct standard of particularized need. In re Grand Jury Investigation No. 78-184 (Sells, Inc.), 642 F. 2d 1184 (CA9 1981).⁶ We granted certiorari, 456 U. S. 960 (1982). We now affirm.

H

>

The grand jury has always occupied a high place as an instrument of justice in our system of criminal law — so much so that it is enshrined in the Constitution. Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395, 399 (1959); Costello v. United States, 350 U. S. 359, 361-362 (1956). It serves the “dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.” Branzburg v. Hayes, 408 U. S. 665, 686-687 (1972) (footnote omitted). It has always been extended extraordinary powers of investigation and great responsibility for directing its own efforts:

“Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials. Tt is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.’ ” United States v. Calandra, 414 U. S. 338, 343 (1974), quoting Blair v. United States, 250 U. S. 273, 282 (1919).

These broad powers are necessary to permit the grand jury to carry out both parts of its dual function. Without thorough and effective investigation, the grand jury would be unable either to ferret out crimes deserving of prosecution, or to screen out charges not warranting prosecution. Branzburg, supra, at 688; Calandra, supra, at 343. See also United States v. Dionisio, 410 U. S. 1, 12-13 (1973); United States v. Johnson, 319 U. S. 503, 510-512 (1943); Hale v. Henkel, 201 U. S. 43, 59-66 (1906).

The same concern for the grand jury’s dual function underlies the “long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts.” United States v. Procter & Gamble Co., 356 U. S. 677, 681 (1958) (footnote omitted).

“We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand j urors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U. S. 211, 218-219 (1979) (footnotes and citation omitted).

Grand jury secrecy, then, is “as important for the protection of the innocent as for the pursuit of the guilty.” Johnson, supra, at 513. Both Congress and this Court have consistently stood ready to defend it against unwarranted intrusion. In the absence of a clear indication in a statute or Rule, we must always be reluctant to conclude that a breach of this secrecy has been authorized. See Illinois v. Abbott & Associates, Inc., 460 U. S. 557, 572-573 (1983).

B

Rule 6(e) of the Federal Rules of Criminal Procedure codifies the traditional rule of grand jury secrecy. Paragraph 6(e)(2) provides that grand jurors, Government attorneys and their assistants, and other personnel attached to the grand jury are forbidden to disclose matters occurring before the grand jury. Witnesses are not under the prohibition unless they also happen to fit into one of the enumerated classes. Paragraph 6(e)(3) sets forth four exceptions to this nondisclosure rule.⁷

Subparagraph 6(e)(3)(A) contains two authorizations for disclosure as a matter of course, without any court order. First, under subparagraph 6(e)(3)(A)(i), disclosure may be made without a court order to “an attorney for the government for use in the performance of such attorney’s duty” (referred to hereinafter as “(A)(i) disclosure”). “Attorney for the government” is defined in Rule 54(c) in such broad terms as potentially to include virtually every attorney in the Department of Justice.⁸ Second, under subparagraph 6(e)(3)(A)(ii), grand jury materials may likewise be provided to “government personnel. . . [who] assist an attorney for the government in the performance of such attorney’s duty to enforce federal criminal law” (“(A)(ii) disclosure”). Subparagraph 6(e)(3)(B) further regulates (A)(ii) disclosure, forbidding use of grand jury materials by “government personnel” for any purpose other than assisting an attorney for the Government in his enforcement of criminal law, and requiring that the names of such personnel be provided to the district court.

Subparagraph 6(e)(3)(C) also authorizes courts to order disclosure. Under subparagraph 6(e)(3)(C)(i), a court may order disclosure “preliminarily to or in connection with a judicial proceeding” (a “(C)(i) order”).⁹ Under subparagraph 6(e)(3)(C)(ii), a court may order disclosure under certain conditions at the request of a defendant. See also n. 7, swpra.

The main issue in this case is whether attorneys in the Justice Department may obtain automatic (A)(i) disclosure of grand jury materials for use in a civil suit, or whether they must seek a (C)(i) court order for access. If a (C)(i) order is necessary, we must address the dependent question of what standards should govern issuance of the order.

I — I HH HH

The Government contends that all attorneys in the Justice Department qualify for automatic disclosure of grand jury materials under (A)(i), regardless of the nature of the litigation in which they intend to use the materials. We hold that (A)(i) disclosure is limited to use by those attorneys who conduct the criminal matters to which the materials pertain. This conclusion is mandated by the general purposes and policies of grand jury secrecy, by the limited policy reasons why Government attorneys are granted access to grand jury materials for criminal use, and by the legislative history of Rule 6(e).

A

The Government correctly contends that attorneys for the Civil Division of the Justice Department are within the class of “attorneys for the government” to whom (A)(i) allows dis closure without a court order. Rule 54(c) defines the phrase expansively, to include “authorized assistants] of the Attorney General”; 28 U. S. C. § 515(a) provides that the Attorney General may direct any attorney employed by the Department to conduct “any kind of legal proceeding, civil or criminal, including grand jury proceedings . . . See also § 518(b). In short, as far as Rules 6 and 54 are concerned, it is immaterial that certain attorneys happen to be assigned to a unit called the Civil Division, or that their usual duties involve only civil cases. If, for example, the Attorney General (for whatever reason) were to detail a Civil Division attorney to conduct a criminal grand jury investigation, nothing in Rule 6 would prevent that attorney from doing so; he need not secure a transfer out of the Civil Division.¹⁰

It does not follow, however, that any Justice Department attorney is free to rummage through the records of any grand jury in the country, simply by right of office. Disclosure under (A)(i) is permitted only “in the performance of such attorney’s duty.” The heart of the primary issue in this case is whether performance of duty, within the meaning of (A)(i), includes preparation and litigation of a civil suit by a Justice Department attorney who had no part in conducting the related criminal prosecution.

Given the strong historic policy of preserving grand jury secrecy, one might wonder why Government attorneys are given any automatic access at all. The draftsmen of the original Rule 6 provided the answer:

“Government attorneys are entitled to disclosure of grand jury proceedings, other than the deliberations and the votes of the jurors, inasmuch as they may be present in the grand jury room during the presentation of evidence. The rule continues this practice.” Advisory Committee’s Notes on Federal Rule of Criminal Procedure 6(e), 18 U. S. C. App., p. 1411.

This is potent evidence that Rule 6(e) was never intended to grant free access to grand jury materials to attorneys not working on the criminal matters to which the materials pertain. The Advisory Committee’s explanation strongly suggests that automatic access to grand jury materials is available only to those attorneys for the Government who would be entitled to appear before the grand jury.¹¹ But Government attorneys are allowed into grand jury rooms, not for the general and multifarious purposes of the Department of Justice, but because both the grand jury’s functions and their own prosecutorial duties require it.¹² As the Advisory Com mittee suggested, the same reasoning applies to disclosure of grand jury materials outside the grand jury room.

The purpose of the grand jury requires that it remain free, within constitutional and statutory limits, to operate “independently of either prosecuting attorney or judge.” Stirone v. United States, 361 U. S. 212, 218 (1960) (footnote omitted). Nevertheless, a modern grand jury would be much less effective without the assistance of the prosecutor’s office and the investigative resources it commands. The prosecutor ordinarily brings matters to the attention of the grand jury and gathers the evidence required for the jury’s consideration. Although the grand jury may itself decide to investigate a matter or to seek certain evidence, it depends largely on the prosecutor’s office to secure the evidence or witnesses it requires.¹³ The prosecutor also advises the lay jury on the applicable law. The prosecutor in turn needs to know what transpires before the grand jury in order to perform his own duty properly. If he considers that the law and the admissible evidence will not support a conviction, he can be expected to advise the grand jury not to indict. He must also examine indictments, and the basis for their issuance, to determine whether it is in the interests of justice to proceed with prosecution.¹⁴

None of these considerations, however, provides any support for breaching grand jury secrecy in favor of Government attorneys other than 'prosecutors — either by allowing them into the grand jury room, or by granting them uncontrolled access to grand jury materials. An attorney with only civil duties lacks both the prosecutor’s special role in supporting the grand jury, and the prosecutor’s own crucial need to know what occurs before the grand jury.¹⁵

Of course, it would be of substantial help to a Justice Department civil attorney if he had free access to a storehouse of evidence compiled by a grand jury; but that is of a different order from the prosecutor’s need for access. The civil lawyer’s need is ordinarily nothing more than a matter of saving time and expense. The same argument could be made for access on behalf of any lawyer in another Government agency, or indeed, in private practice. We have consistently rejected the argument that such savings can justify a breach of grand jury secrecy. E. g., Procter & Gamble, 356 U. S., at 682-683; Smith v. United States, 423 U. S. 1303, 1304 (1975) (Douglas, J., in chambers); see also Abbott, 460 U. S., at 565-573. In most cases, the same evidence that could be obtained from the grand jury will be available through ordinary discovery or other routine avenues of investigation. If, in a particular case, ordinary discovery is insufficient for some reason, the Government may request disclosure under a (C)(i) court order. See Part IV, infra.

Not only is disclosure for civil use unjustified by the considerations supporting prosecutorial access, but also it threatens to do affirmative mischief. The problem is threefold.

First, disclosure to Government bodies raises much the same concerns that underlie the rule of secrecy in other contexts. Not only does disclosure increase the number of persons to whom the information is available (thereby increasing the risk of inadvertent or illegal release to others),¹⁶ but also it renders considerably more concrete the threat to the willingness of witnesses to come forward and to testify fully and candidly. If a witness knows or fears that his testimony before the grand jury will be routinely available for use in governmental civil litigation or administrative action, he may well be less willing to speak for fear that he will get himself into trouble in some other forum. Cf. Pillsbury Co. v. Conboy, 459 U. S. 248, 263, n. 23 (1983).

Second, because the Government takes an active part in the activities of the grand jury, disclosure to Government attorneys for civil use poses a significant threat to the integrity of the grand jury itself. If prosecutors in a given case knew that their colleagues would be free to use the materials generated by the grand jury for a civil case, they might be tempted to manipulate the grand jury’s powerful investigative tools to root out additional evidence useful in the civil suit, or even to start or continue a grand jury inquiry where no criminal prosecution seemed likely. Any such use of grand jury proceedings to elicit evidence for use in a civil case is improper per se. Procter & Gamble, supra, at 683-684. We do not mean to impugn the professional characters of Justice Department lawyers in general; nor do we express any view on the allegations of misuse that have been made in this case, see n. 36, infra. Our concern is based less on any belief that grand jury misuse is in fact widespread than on our concern that, if and when it does occur, it would often be very difficult to detect and prove. Moreover, as the legislative history discussed infra, Part III-B, shows, our concern over possible misappropriation of the grand jury itself was shared by Congress when it enacted the present version of Rule 6(e). Such a potential for misuse should not be allowed absent a clear mandate in the law.

Third, use of grand jury materials by Government agencies in civil or administrative settings threatens to subvert the limitations applied outside the grand jury context on the Government’s powers of discovery and investigation. While there are some limits on the investigative powers of the grand jury,¹⁷ there are few if any other forums- in which a governmental body has such relatively unregulated power to compel other persons to divulge information or produce evidence. Other agencies, both within and without the Justice Department, operate under specific and detailed statutes, rules, or regulations conferring only limited authority to require citizens to testify or produce evidence. Some agencies have been granted special statutory powers to obtain information and require testimony in pursuance of their duties. Others (including the Civil Division¹⁸) are relegated to the usual course of discovery under the Federal Rules of Civil Procedure. In either case, the limitations imposed on investigation and discovery exist for sound reasons — ranging from fundamental fairness to concern about burdensomeness and intrusiveness. If Government litigators or investigators in civil matters enjoyed unlimited access to grand jury material, though, there would be little reason for them to resort to their usual, more limited avenues of investigation. To allow these agencies to circumvent their usual methods of discovery would not only subvert the limitations and procedural requirements built into those methods, but also would grant to the Government a virtual ex parte form of discovery, from which its civil litigation opponents are excluded unless they make a strong showing of particularized need. In civil litigation as in criminal, “it is rarely justifiable for the [Government] to have exclusive access to a storehouse of relevant fact.” Dennis v. United States, 384 U. S. 855, 873 (1966) (footnote omitted). We are reluctant to conclude that the draftsmen of Rule 6 intended so remarkable a result.¹⁹

In short, if grand juries are to be granted extraordinary powers of investigation because of the difficulty and importance of their task, the use of those powers ought to be limited as far as reasonably possible to the accomplishment of the task.²⁰ The policies of Rule 6 require that any disclosure to attorneys other than prosecutors be judicially supervised rather than automatic.

B

The Government argues that its reading of Rule 6 is compelled by a textual comparison of subparagraph 6(e)(3)(A)(i) with subparagraph 6(e)(3)(A)(ii). It points out that the former restricts a Government attorney’s use of grand jury materials to “the performance of such attorney’s duty,” while the latter refers more specifically to “performance of such attorney’s duty to enforce federal criminal law” (emphasis added). The inclusion in (A)(ii) of an express limitation to criminal matters, and the absence of that limitation in the otherwise similar language of (A)(i), the Government argues, show that Congress intended to place the limitation to criminal matters on (A)(ii) disclosure but not on (A)(i) disclosure. The argument is admittedly a plausible one. If we had nothing more to go on than the bare text of the Rule, and if the subject matter at hand were something less sensitive than grand jury secrecy, we might well adopt that reasoning. The argument is not so compelling, nor the language so plain, however, as to overcome the strong arguments to the contrary drawn both from policy, supra, Part III-A, and from legislative history.

It is material in this connection that the two subparagraphs are not of contemporaneous origin. The present (A)(i) language has been in the Rule since its inception in 1946; the (A)(ii) provision was added by Congress in 1977. The Government’s argument, at base, is that when Congress added the (A)(ii) provision containing an express limitation to criminal use, but did not add a similar limitation to (A)(i), it must have intended that no criminal-use limitation be applied to (A)(i) disclosure. The legislative history, although of less than perfect clarity, leads to the contrary conclusion. It ap pears instead that when Congress included the criminal-use limitation in the new (A)(ii), it was merely making explicit what it believed to be already implicit in the existing (A)(i) language.

Rule 6(e), as it stood from 1946 to 1977, contained no provision for access to grand jury materials by nonattomeys²¹ assisting Government attorneys. The only provision for automatic access was one substantially the same as the language presently in (A)(i): “Disclosure . . . may be made to . . . the attorney[s] for the government for use in the performance of [their] dut[ies].” This became something of a problem in practice, 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. Hence, despite the seemingly clear prohibition of the Rule, it became common in some Districts for nonattorneys to be shown grand jury materials. This practice sparked some controversy and litigation.²²

Accordingly, when in 1976 this Court transmitted to the Congress several proposed amendments to the Federal Rules of Criminal Procedure, 425 U. S. 1159, a proposal was included to add one sentence to Rule 6(e), immediately following the provision for disclosure to attorneys for the Government:

“For purposes of [Rule 6(e)], ‘attorneys for the government’ includes those enumerated in Rule 54(c); it also includes such other government personnel as are necessary to assist the attorneys for the government in the performance of their duties.” 425 U. S., at 1161.

The accompanying Notes of the Advisory Committee on Rules, 18 U. S. C. App., p. 1024 (1976 ed., Supp. V), explained that the amendment was “designed to facilitate an increasing need, on the part of government attorneys, to make use of outside expertise in complex litigation.” Ibid. The Committee noted, however, that under its proposal, disclosure to nonattorneys would be “subject to the qualification that the matters disclosed be used only for the purposes of the grand jury investigation.” Id., at 1025 (emphasis added). Yet there was no express language in the proposed Rule clearly imposing this criminal-use limitation; the only limitation on use of grand jury materials was the double reference to “the performance of [Government attorneys’] duties.” It appears, then, that the Advisory Committee took that phrase to mean that use of grand jury materials was limited to criminal matters, absent a court order allowing civil use — a construction that would apply equally to Justice Department attorneys and their nonattomey assistants.

The proposed amendment to Rule 6(e) met a mixed reception in Congress. Congress first acted to postpone the effective date of the amendment to Rule 6(e) so that it might study the proposal.²³ The House, after hearings, voted to disapprove the amendment. Members of the responsible Subcommittee stated that they were in general sympathy with the purpose of the proposal, but that they were concerned that it was not sufficiently clear to protect adequately against use of grand jury materials for improper purposes by Government personnel. They were unable to agree on a substitute draft.²⁴

The Senate Judiciary Committee was more hospitable to the original proposal. After consultation with House Members,²⁵ however, the Committee undertook to redraft Rule 6(e) to accommodate both the purpose of the proposed amendment and the concerns of the House.²⁶ The result was Rule 6(e) in substantially its present form, passed by both Houses without significant opposition.²⁷

Congressional criticism of the proposed amendment focused on two problems: disclosure of grand jury materials to agencies outside the Department of Justice, and use of grand jury materials for non-grand-jury purposes. The two were closely related, however; the primary objection to granting access to employees of outside agencies, such as the IRS, was a concern that they would use the information to pursue civil investigations or unrelated criminal matters, in derogation of the limitations on their usual avenues of investigation.²⁸ Little attention was paid to the prospect that other attorneys within the Justice Department, as much as other agencies, might use grand jury materials for civil purposes — presumably because the proposed amendment did not purport to alter the text governing access by Justice Department attorneys in any way. The only participant to address that aspect of the problem directly was Acting Deputy Attorney General Richard Thornburgh, testifying on behalf of the Justice Department at the House Hearings. Thornburgh acknowledged that it would be a bad idea to allow agency personnel to use grand jury materials for civil purposes, but he contended that neither the proposal as drafted nor current practice would allow such use. Materials, he said, should be available to “every legitimate member of [the] team” conducting the criminal investigation, including “the assistant U. S. attorney who is probably conducting the investigation.”²⁹ He continued:

“Now, when you begin to move beyond the parameters of that particular investigation, we get to the point that you and I both have some trouble with. The cleanest example I can think of where a 6(e) order [i. e., a court order under what is now (C)(i)] is clearly required is where a criminal fraud investigation before a grand jury fails to produce enough legally admissible evidence to prove beyond a reasonable doubt that criminal fraud ensued.

“It would be the practice of the Department at that time to seek a 6( e) order from the court in order that that evidence could be made available for whatever civil consequences might ensue.

“If there were fraud against the Government!,] for example, there would be a civil right of the Government to recover penalties with respect to the fraud that took place.”³⁰

The rest of the legislative history is consistent with this view that no disclosure of grand jury materials for civil use should be permitted without a court order.³¹ Congress’ expressions of concern about civil use of grand jury materials did not distinguish in principle between such use by outside agencies and by the Department; rather, the key distinction was between disclosure for criminal use, as to which access should be automatic, and for civil use, as to which a court order should be required.³² The Senate Report, for example, explained its redraft thus:

“The Rule as redrafted is designed to accommodate the belief on the one hand that Federal prosecutors should be able, without the time-consuming requirement of prior judicial interposition, to make such disclosures of grand jury information to other government personnel as they deem necessary to facilitate the performance of their duties relating to criminal law enforcement. On the other hand, the Rule seeks to allay the concerns of those who fear that such prosecutorial power will lead to misuse of the grand jury to enforce non-criminal Federal laws by (1) providing a clear prohibition, subject to the penalty of contempt and (2) requiring that a court order under paragraph (C) be obtained to authorize such a disclosure. There is, however, no intent to preclude the use of grand jury-developed evidence for civil law enforcement purposes. On the contrary, there is no reason why such use is improper, assuming that the grand jury was utilized for the legitimate purpose of a criminal investigation. Accordingly, the Committee believes and intends that the basis for a court’s refusal to issue an order under paragraph (C) to enable the government to disclose grand jury information in a non-criminal proceeding should be no more restrictive than is the case today under prevailing court decisions. ” S. Rep. No. 95-354, p. 8 (1977) (footnote omitted).

This paragraph reflects the distinction the Senate Committee had in mind: “Federal prosecutors” are given a free hand con cerning use of grand jury materials, at least pursuant to their “duties relating to criminal law enforcement”; but disclosure of “grand jury-developed evidence for civil law enforcement purposes” requires a (C)(i) court order.³³

We conclude, then, that Congress did not intend that “attorneys for the government” should be permitted free civil use of grand jury materials. Congress was strongly concerned with assuring that prosecutors would not be free to turn over grand jury materials to others in the Government for civil uses without court supervision, and that statutory limits on civil discovery not be subverted — concerns that apply to civil use by attorneys within the Justice Department as fully as to similar use by persons in other Government agencies. Both the Advisory Committee Notes and the testimony of the Justice Department’s own representative suggested that even under the old Rule such disclosure for civil use would not have been permissible; indeed, the latter gave a hypothetical illustration closely similar to this very case. The express addition of a “criminal-use” limitation in (A)(ii) appears to have been prompted by an abundance of caution, owing to Congress’ special concern that nonattomeys were the ones most likely to pose a danger of unauthorized use.

IV

Since we conclude that the Government must obtain a (C)(i) court order to secure the disclosure it seeks in this case,³⁴ we must consider what standard should govern the issuance of such an order.

Rule 6(e)(3)(C)(i) simply authorizes a court to order disclosure “preliminarily to or in connection with a judicial proceeding.” Neither the text of the Rule nor the accom panying commentary describes any substantive standard governing issuance of such orders. We have consistently construed the Rule, however, to require a strong showing of particularized need for grand jury materials before any disclosure will be permitted. Abbott, 460 U. S., at 566-567; Douglas Oil, 441 U. S., at 217-224; Dennis, 384 U. S., at 869-870; Pittsburgh Plate Glass Co., 360 U. S., at 398-401; Procter & Gamble, 356 U. S., at 681-683. We described the standard in detail in Douglas Oil:

“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. . . ,

“It is clear from Procter & Gamble and Dennis that disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy, and that the burden of demonstrating this balance rests upon the private party seeking disclosure. It is equally clear that as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification. In sum, . . . the court’s duty in a case of this kind is to weigh carefully the competing interests in light of the relevant circumstances and the standards announced by this Court. And if disclosure is ordered, the court may include protective limitations on the use of the disclosed material . . . .” 441 U. S., at 222-223 (citations omitted).

The Government points out that Douglas Oil and its forerunners all involved private parties seeking access to grand jury materials. It contends that the Douglas Oil standard ought not be applied when Government officials seek access “in furtherance of their responsibility to protect the public weal.” Brief for United States 43. Earlier this Term, however, we rejected a similar argument in Abbott, supra. At issue there was an antitrust statute requiring the United States Attorney General to turn over to state attorneys general certain investigative files and materials, “to the extent permitted by law.” 15 U. S. C. § 15f(b). We assumed that grand jury records are among the materials to be disclosed under the statute, 460 U. S., at 566, n. 10. We held nevertheless that the particularized-need standard applies to disclosure to state attorneys general, and that Congress did not intend to legislate to the contrary when it enacted the statute in question. Id., at 566-568, and nn. 14-16.

Our conclusion that Douglas Oil governs disclosure to public parties as well as private ones is bolstered by the legislative history of the 1977 amendment of Rule 6(e), supra, Part III-B. That amendment was not directed at the provision for court-ordered disclosure (now (C)(i)), which remained textually unchanged. The Senate Committee that drafted the present Rule noted the importance of that provision, however, pointing out that it would continue to govern disclosure to Government parties for civil use under prevailing court interpretations.³⁵ Moreover, if we were to agree with the Government that disclosure is permissible if the grand jury materials are “relevant to matters within the duties of the attorneys for the government,” Brief for United States 13, a (C)(i) court order would be a virtual rubber-stamp for the Government’s assertion that it desires disclosure. Thus, under the Government’s argument, it would get under subparagraph (C)(i) precisely what Congress in 1977 intended to deny it under subparagraphs (A) and (B)— unlimited and unregulated access to grand jury materials for civil use.

The Government further argues that “disclosure of grand jury materials to government attorneys typically implicates few, if any, of the concerns that underlie the policy of grand jury secrecy.” Brief for United States 45. The contention is overstated, see supra, at 431-434, but it has some validity. Nothing in Douglas Oil, however, requires a district court to pretend that there are no differences between governmental bodies and private parties. The Douglas Oil standard is a highly flexible one, adaptable to different circumstances and sensitive to the fact that the requirements of secrecy are greater in some situations than in others. Hence, although Abbott and the legislative history foreclose any special dispensation from the Douglas Oil standard for Government agencies, the standard itself accommodates any relevant considerations, peculiar to Government movants, that weigh for or against disclosure in a given case. For example, a district court might reasonably consider that disclosure to Justice Department attorneys poses less risk of further leakage or improper use than would disclosure to private parties or the general public. Similarly, we are informed that it is the usual policy of the Justice Department not to seek civil use of grand jury materials until the criminal aspect of the matter is closed. Cf. Douglas Oil, supra, at 222-223. And “under the particularized-need standard, the district court may weigh the public interest, if any, served by disclosure to a governmental body . . . .” Abbott, supra, at 567-568, n. 15. On the other hand, for example, in weighing the need for disclosure, the court could take into account any alternative discovery tools available by statute or regulation to the agency seeking disclosure.

In this case, the District Court asserted that it had found particularized need for disclosure, but its explanation of that conclusion amounted to little more than its statement that the grand jury materials sought are rationally related to the civil fraud suit to be brought by the Civil Division. App. to Pet. for Cert. 22a-23a. The Court of Appeals correctly held that this was insufficient under Douglas Oil and remanded for reconsideration under the proper legal standard. 642 F. 2d, at 1190-1192.³⁶

V

The Court of Appeals correctly held that disclosure to Government attorneys and their assistants for use in a civil suit is permissible only with a court order under Rule 6(e)(3)(C)(i), and that the District Court did not apply correctly the particularized-need standard for issuance of such an order. Accordingly, the judgment of the Court of Appeals is

Affirmed.

Footnotes

1

The Court of Appeals, upon learning this, remanded the summons enforcement action for reconsideration. The Government did not pursue the matter further, and the suit was dismissed for want of prosecution.

2

18 U. S. C. §371.

3

26 U. S. C. §7206(2).

4

Although the Government has always contended that the Civil Division attorneys are entitled to disclosure without any court order, the Government chose to request permission for disclosure from the District Court. It stated that it thought no order necessary, but requested an order in the alternative. Record 519-622; see Tr. of Oral Arg. 5-9.

5

The District Court found it unnecessary to pass on the allegations of grand jury misuse, but it stated without elaboration that had it considered the issue it would have found no such misuse. App. to Pet. for Cert. 24a.

6

The District Court refused to stay disclosure. A single Circuit Judge did issue an interim stay, but a two-judge panel vacated it and refused a further stay. Hence, the Civil Division attorneys and their assistants enjoyed access to the grand jury materials for more than two years while this case was pending in the Court of Appeals. During this time the Government filed its False Claims Act suit against respondents. The Civil Division has been denied access since the Court of Appeals issued its mandate.

The Government argued in the Court of Appeals that the case was moot because the disclosure sought to be prevented had already occurred. The Court of Appeals correctly rejected the contention:

“The controversy here is still a live one. By its terms the disclosure order grants access to all attorneys for the Civil Division, their paralegal and secretarial staff, and all other necessary assistants. Each day this order remains effective the veil of secrecy is lifted higher by disclosure to additional personnel and by the continued access of those to whom the materials have already been disclosed. We cannot restore the secrecy that has already been lost but we can grant partial relief by preventing further disclosure.” In re Grand Jury Investigation No. 78-181 (Sells, Inc.), 642 F. 2d, at 1187-1188.

7

Rules 6(e)(2) and (3), as presently in force, provide as follows:

“(e) 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 preliminarily to or in connection with a judicial proceeding; or

“(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.”

A fifth exception has been created this Term in an amendment to Rule 6(e), to take effect August 1, 1983. 461 U. S. 1121 (1983). The amendment adds a new subparagraph 6(e)(3)(C)(iii), permitting disclosure “when the disclosure is made by an attorney for the government to another federal grand jury.” The Advisory Committee’s Note points out that secrecy is not thereby compromised, since the second grand jury is equally under Rule 6’s requirement of secrecy.

8

“‘Attorney for the government’ means the Attorney General, an authorized assistant of the Attorney General, a United States Attorney, [and] an authorized assistant of a United States Attorney . . . .” See also n. 12, infra.

9

See generally United States v. Baggot, post, p. 476.

10

See generally 8 J. Moore, Moore’s Federal Practice ¶6.04[7] (2d ed. 1983); 1 C. Wright, Federal Practice and Procedure § 105 (2d ed. 1982). But see n. 12, infra.

11

We do not mean to suggest that (A)(i) access to grand jury materials is limited to those prosecutors who actually did appear before the grand jury. If that were so, the Government would be arbitrarily foreclosed from increasing or changing the staffing of a given criminal case after indictment, or even from replacing an attorney who leaves Government service. Moreover, there would be little point to such an interpretation, since anyone working on a given prosecution would clearly be eligible under Rule 6(d) to enter the grand jury room, even if particular individuals did not have occasion to do so. Rather, as the history discussed by the dissent, post, at 452-455, shows, the intent of the Rule is that every attorney (including a supervisor) who is working on a prosecution may have access to grand jury materials, at least while he is conducting criminal matters. Cf. n. 15, infra. See Hearings on Proposed Amendments to the Federal Rules of Criminal Procedure before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 95th Cong., 1st Sess., 46-47 (1977) (hereinafter House Hearings); id., at 67 (testimony of Department of Justice representative that every member of the prosecution “team” is entitled to automatic access); infra, at 439-440. Nothing in these sources or those cited by the dissent, however, suggests that the draftsmen of Rule 6(d) or (e) intended that Justice Department attorneys not working on a prosecution should have automatic access. On the contrary, the passages quoted post, at 452-455, show fairly clearly that the reason why it was thought desirable to allow disclosure to other prosecutors was to facilitate effective working of the prosecution team.

12

Indeed, the Courts of Appeals have held or assumed that even an attorney from the Justice Department’s Criminal Division may appear before a grand jury only if he has been authorized to conduct grand jury proceedings under 28 U. S. C. § 515(a), § 543(a), or a similar statute, because only with such credentials would the attorney be an “authorized assistant of the Attorney General” as required by Rule 54(c). E. g., United States v. Prueitt, 540 F. 2d 995, 999-1003 (CA9 1976); In re Persico, 522 F. 2d 41, 46 (CA2 1975); United States v. Wrigley, 520 F. 2d 362 (CA8 1975).

13

Not only would the prosecutor ordinarily draw up and supervise the execution of subpoenas, but also he commands the investigative forces that might be needed to find out what the grand jury wants to know. See also, e. g., 18 U. S. C. § 6003 (United States Attorney to request order granting use immunity).

14

See generally United States v. Calandra, 414 U. S. 338, 351 (1974); Hale v. Henkel, 201 U. S. 43, 60, 65 (1906); Fed. Rule Crim. Proc. 7(c)(1) (prosecutor to sign indictment); National District Attorneys Association, National Prosecution Standards 14.2-E, 14.4, and accompanying commen tary (1977); ABA Standards for Criminal Justice 3-3.5, 3-3.6 (2d ed. 1980); ABA Section of Criminal Justice, ABA Grand Jury Policy and Model Act 4-9, 12 (2d ed. 1982).

15

This ease involves only access by Civil Division attorneys who played no part in the criminal prosecution of respondents. It does not present any issue concerning continued use of grand jury materials, in the civil phase of a dispute, by an attorney who himself conducted the criminal prosecution. We decline to address that problem in this case.

16

But see infra, at 446.

17

See, e. g., Calandra, 414 U. S., at 346, and n. 4; United States v. Dionisio, 410 U. S. 1, 11-12 (1973); Branzburg v. Hayes, 408 U. S. 665, 688, 707-708 (1972); id., at 709-710 (Powell, J., concurring); Curcio v. United States, 354 U. S. 118 (1957); Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920); Hale, 201 U. S., at 75-77.

18

Title 31 U. S. C. § 232(F) (1976 ed., Supp. V) provides that in suits under the False Claims Act (such as the one brought by the Government here), subpoenas for trial testimony may be served anywhere in the United States, rather than in the limited area provided for in Federal Rule of Civil Procedure 45(e). Section 232(F), however, does not affect Rule 45(d), regulating subpoenas for depositions.

19

The Government contends that the issue of Government access for civil use was settled in United States v. Procter & Gamble Co., 356 U. S. 677 (1958). We disagree. In that case, the Government was using grand jury materials to press a civil antitrust suit. The defendants sought to discover the materials under Federal Rule of Civil Procedure 34; we held that such discovery was impermissible without a showing of particularized need. We rejected the defendants’ argument that they should obtain discovery because the Government had improperly used the grand jury as a civil discovery device, noting that there was “no finding that the grand jury proceeding was used as a short cut to goals otherwise barred or more difficult to reach.” Id., at 683. The passages from that decision so heavily relied on by the dissent, post, at 457-458, are simply the Court’s recognition that civil use of properly created grand jury materials is not per se illegal. The Court did not address, however, the conditions under which such civil use by the Government could be permitted, since the issue in the case was only whether private parties could obtain access. In particular, no issue was presented in the case as to whether, having used the grand jury for strictly criminal purposes, the Government should have been permitted to use the grand jury’s records for civil ends (whether through the same attorneys or different ones, ef. n. 15, supra) without a court order. The Court’s opinion did not discuss that aspect of the case at all. Justice Whittaker, concurring, did address it, suggesting that a court order should be required in at least some eases. 356 U. S., at 684-685. Since Justice Whittaker joined the majority opinion, however, he at least did not interpret that opinion as the Government now reads it.

20

See also United States v. Mara, 410 U. S. 19, 45-46 (1973) (MARSHALL, J., dissenting).

21

Although, for convenience, we use the term “nonattorneys” to describe the “other government personnel” referred to in (A)(ii), the provisions of (A)(ii) apply as well to attorneys for Government agencies outside the Justice Department, unless they are specially retained under 28 U. S. C. § 515 or §543.

22

See, e. g., J. R. Simplot Co. v. United States District Court, 77-1 USTC ¶ 9416 (CA9 1976), withdrawn as moot, 77-2 USTC ¶ 9511 (1977), reprinted in House Hearings 249; Robert Hawthorne, Inc. v. Director of Internal Revenue Service, 406 F. Supp. 1098 (ED Pa. 1975); In re Grand Jury Investigation of William H. Pflaumer & Sons, Inc., 53 F. R. D. 464 (ED Pa. 1971).

23

90 Stat. 822.

24

H. R. Rep. No. 96-195, pp. 4-6 (1977); id., at 13-16 (additional views of Rep. Wiggins); 123 Cong. Rec. 11109 (1977) (remarks of Rep. Mann); id., at 11110 (remarks of Rep. Wiggins); id., at 11111 (remarks of Rep. Holtz-man); id., at 25195-26196 (remarks of Rep. Wiggins).

25

See id., at 25194 (remarks of Rep. Mann).

26

S. Rep. No. 95-354, pp. 1-2, 5-8 (1977).

27

Rule 6(e) was further amended in other respects in 1979 and again this Term (the latter amendment to take effect on August 1,1983). Neither of these amendments has any bearing on this case, except as discussed in n. 7, swpra. The present Rule 6(e)(3) was designated as Rule 6(e)(2) in the version proposed by the Senate and enacted in 1977.

28

The House Report recommending disapproval, for example, stated:

“It was feared that the proposed change would allow Government agency personnel to obtain grand jury information which they could later use in connection with an unrelated civil or criminal case. This would enable those agencies to circumvent statutes that specifically circumscribe the investigative procedure otherwise available to them.” H. R. Rep. No. 95-195, p. 4 (1977) (footnote omitted).

29

House Hearings 67.

30

Ibid. (emphasis added).

The dissent asserts that Thornburgh’s testimony refers to use of grand jury materials by lawyers for outside agencies, not by attorneys in the Jus tice Department. Post, at 461, and n. 8. This assertion is inexplicable, since Thornburgh was speaking of a suit on behalf of the Government for civil fraud — in other words, to the precise situation presented in the present case.

The dissent also refers to various other indications, as it takes them to be, of standard Department practice as it existed at various times considerably before 1977. As the dissent itself notes, however, post, at 456-457, “standard practice” was somewhat inconsistent with itself, and in many instances resulted in use of grand jury materials that clearly would now be considered illegal under Rule 6(e). Indeed, in the Procter & Gamble case, the Government argued in the District Court that there was nothing improper in its practice of using a grand jury deliberately for the purpose of advancing a civil investigation, United States v. Procter & Gamble Co., 19 F. R. D. 122, 124, and n. 7 (NJ 1956) — a proposition we squarely rejected in our decision, 356 U. S., at 683-684. In any event, we think the most reliable evidence of what Congress in 1977 understood to be standard Department practice was what Thornburgh, the Department’s official representative at the hearings, stated it to be.

31

Admittedly, there were one or two suggestions in the course of consideration that there might be some distinction between the Justice Department and all other agencies, based on a district court’s greater ability to exercise supervision over a United States Attorney. See, e. g., House Hearings 47-54 (statement of Judge Becker); see also Robert Hawthorne, Inc. v. Director of Internal Revenue Service, 406 F. Supp. 1098 (ED Pa. 1976) (Becker, J.). This suggested solution did not prevail, however. Indeed, the Senate’s compromise redraft was intended to avoid imposing a supervisory role on the district court with regard to criminal use of grand jury materials by prosecutors or their assistants. See S. Rep. No. 95-354, pp. 7, n. 12, 8 (1977).

32

The American Bar Association’s Section of Criminal Justice has since proposed to amend (A)(i) by adding the same express limitation to criminal matters that now exists in (A)(ii). According to the ABA, the amendment would “make explicit the clear intention of the drafters of the 1977 amendment to the rule . . . [to] ensur[e] that the grand jury is not used, by anyone, as an uncontrolled means of enforcing civil laws.” ABA Grand Jury Policy and Model Act 5, 15 (2d ed. 1982) (emphasis in original). See also House Hearings 124. The Advisory Committee on Criminal Rules of the Judicial Conference tentatively proposed to adopt the ABA’s suggestion, but it deferred consideration of the matter pending our decision in this ease. Letter of transmittal from William E. Foley to this Court, October 1, 1982, attachment.

33

Cf. n. 15, supra.

34

The Government concedes that in any event it would need a (C)(i) order before it could show these materials to the Defense Department experts whose assistance it desires.

35

S. Rep. No. 96-354, p. 8, and n. 13 (1977). See also House Hearings 92-93.

36

The Court of Appeals properly directed that the District Court should consider respondents’ allegations of grand jury misuse. 642 F. 2d, at 1192. The District Court had already stated as an aside that it was not persuaded that any such misuse had taken place, but it expressly declined to rule on the matter formally or to state the grounds for its view. App. to Pet. for Cert. 24a. We also leave it to the District Court to consider the significance, if any, of the findings on respondents’ allegations entered in a related litigation. See Brief for United States 8-9, n. 8.