Anchor Hocking Corp. v. St. Joe Container Co.
Opinion of the Court
This appeal challenges the propriety of the district court’s order releasing certain grand jury transcripts to the opt-out plaintiffs. It is a procedural freckle on the litigation behemoth known as In re Corrugated Container Antitrust Litigation, MDL 310 (S.D.Tex.).
I
In 1975, a federal grand jury began an investigation into the pricing practices of the corrugated container industry. Fourteen corporations and twenty-six individuals were subsequently indicted for violating the federal antitrust laws. Civil antitrust actions by purchasers of corrugated board and containers ensued.
In the spring of 1979, the class and opt-out plaintiffs in the corrugated container civil litigation sought discovery of various transcripts
Meanwhile, the opt-out plaintiffs had renewed their requests for certain grand jury transcripts. In Pretrial Order No. 64, dated April 15, 1981, the district court ordered disclosure of the entire transcripts of testimony by five grand jury witnesses. Four of the witnesses, Phillip Barnum, Warren Fryburg, Robert Lindeman, and Leroy Stalder, are current or former employees of MacMillan Bloedel, Inc., a defendant in the opt-out litigation. The fifth witness, Edwin A. McCain, was an employee of St. Joe Paper Co., another defendant in the opt-out litigation. On May 26, 1981, the district court moved to enforce its April 15 order by directing the Justice Department, pursuant to Fed.R.Crim.P. 6(e),
The district court certified its order for appeal under § 1292(b), but this court dismissed the petition for leave to appeal. The defendants and witnesses then appealed the district court’s order under 28 U.S.C. §§ 1291 & 1292(a)(1). This panel granted appellants’ motion for a stay pending appeal and ordered that the appeal be expedited. We heard oral argument in January 1982.
We assumed appellate jurisdiction over this case in issuing our earlier order. Although we did not pause in that brief order to pinpoint a basis for jurisdiction, we note here that the district court’s Rule 6(e) order was a final decision under 28 U.S.C. § 1291. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 1680, 60 L.Ed.2d 156 (1979) (Rehnquist, J., concurring); see also State of Illinois v. Sarbaugh, 552 F.2d 768, 773 (7th Cir.), cert. denied, 434 U.S. 889, 98 S.Ct. 262, 54 L.Ed.2d 174 (1977); 9 J. Moore, B. Ward & J. Lucas, Moore’s Federal Practice ¶ 110.13[11], at 193 (2d ed. 1982).
After oral argument, this panel issued an order on January 14, 1982, calling on the plaintiffs to move the district court to compel the deposition testimony of the five witnesses, and calling on the court to review the grand jury transcripts in camera, to consider the materials discovered by plaintiffs since the district court’s original order, and to rebalance the need for disclosure against the need for grand jury secrecy. 667 F.2d 4, 4. The court was then to issue a supplemental order to be certified to this panel. Id.
The parties and the district court have now complied with our directives. The district court refused to compel the deposition testimony of the five witnesses after they made it clear that they would respond as before. The district court then engaged in the requested analysis and concluded that release of portions of the four MacMillan Bloedel employees’ transcripts and all of the McCain transcript was required.
The defendants and McCain once again argue that the district court has erred in ordering release of the transcripts. The MacMillan Bloedel employees have not complained about the new order, no doubt because their employer has settled with the
II
The standards by which the district court’s order should be analyzed are set out in the Supreme Court’s decision in Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). That case similarly involved a request by civil antitrust plaintiffs for grand jury transcripts emanating from the government’s investigation of the civil defendants. The Court stated:
Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.
Id. at 222, 99 S.Ct. at 1674. A district court’s determination to release grand jury transcripts under Rule 6(e) may be upset only upon a showing of a clear abuse of discretion. Id. at 223, 99 S.Ct. at 1675; State of Texas v. United States Steel Corp., 546 F.2d 626, 629 (5th Cir.), cert. denied, 434 U.S. 889, 98 S.Ct. 262, 54 L.Ed.2d 174 (1977); Allis-Chalmers Mfg. Co. v. City of Fort Pierce, 323 F.2d 233, 241 (5th Cir. 1963); 8 Moore’s Federal Practice ¶ 6.05[2], at 6-109 (1981).
The district court here did not abuse its discretion in ordering release of the grand jury transcripts. The discussion that follows considers separately the district court’s exercise of discretion with respect to the transcripts of McCain and the MacMillan Bloedel employees.
A
When deposed by the opt-out plaintiffs, McCain experienced considerable and frequent difficulty in recalling the events about which he was questioned. In addition, he invoked the fifth amendment once. The district court, in its April 15, 1981, order, directed that McCain’s entire grand jury transcript be released. It found that “in the interest of justice the need for disclosure ... far outweighs the slender remaining need for secrecy.” The grand jury in question had been disbanded. McCain’s transcript had already been made available, in whole or in part, to the litigants. His employer, St. Joe, and its competitors already had access to it, thus minimizing the chances of retaliation against him. The district court found the need for disclosure to be great since certain information in that transcript could only be made available to the trier of fact through release of the transcript.
After remand, the district court found that details about McCain’s participation in the price-fixing conspiracy had not been discovered despite the opt-out plaintiffs’ intensive discovery efforts. The district court reviewed in camera the transcripts of McCain’s grand jury and deposition testimony and ordered release of the entire grand jury transcript finding that “[djisclosure is necessary to uncover relevant, but otherwise unavailable, discovery information.”
We affirm the district judge’s order releasing the McCain transcript. The district judge should be the best informed individual in the legal world concerning the details of the corrugated container litigation. He has applied the appropriate legal standard, reviewed the pertinent materials, and concluded that release of the McCain transcript would help to refresh McCain’s recollection. Release of a grand jury transcript to refresh a witness’ recollection is perhaps the most frequently cited justification for such a course of action. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222 n.12, 99 S.Ct. 1667, 1674 n.12 (1979); United States v. Procter & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 987, 2 L.Ed.2d 1077
B
The four MacMillan Bloedel employees all invoked or threatened to invoke the fifth amendment when questioned during depositions about their roles in the price-fixing conspiracy. They had previously testified under grants of immunity before the grand jury. In response to the opt-out plaintiffs’ request that these grand jury transcripts be released, the district court stated:
After presiding over both the criminal and the class trials, after supervising discovery by class and opt-out plaintiffs in the civil litigation, after ruling on motion after motion regarding the grand jury transcripts, the court is convinced that diligent discovery without access to the transcripts has not, will not, and cannot succeed in presenting sufficient facts to a jury to enable it to make any kind of informed decision as to the issues in this case. The Fifth Amendment wall is too high, too broad, and too thick.
The court concluded that the interests of justice required that the grand jury transcripts of the MacMillan Bloedel employees be disclosed.
In our remand order, we required the opt-out plaintiffs to lay a proper predicate for release of the grand jury transcripts by first moving to compel the deposition testimony of the MacMillan Bloedel employees. After remand, the opt-out plaintiffs moved to compel the testimony. In addition, the plaintiffs narrowed their request for the grand jury transcripts of the four employees. They requested release of the portions of the grand jury transcripts concerning price communications with competitors relating to any opt-out account, the Northern Indiana marketing area, the Ohio marketing area for the time period after 1971, and national accounts, as well as acts of affirmative concealment of the conspiracy.
The district court denied the plaintiffs’ motion to compel deposition testimony and ordered release of the portions of the grand jury transcripts requested by the plaintiffs.
The district judge’s careful weighing of the interests at stake in disclosure of these transcripts also must be affirmed. The deference normally due the decision of a district judge in these matters is particularly appropriate in a case such as this. The district judge has presided over all phases of this litigation and is thoroughly acquainted with the issues that will arise in the opt-out trial. His conclusion that a compelling and particularized need for the information in the grand jury transcripts of these witnesses exists which outweighs countervailing considerations has not been shown to be wrong. Clearly, it cannot be perceived as an abuse of the discretion vested in the district judge.
Defendants urge that the opt-out plaintiffs failed to particularize and structure their needs for grand jury transcripts as closely and strictly as possible. The result, they claim, is an order which permits an inappropriate breadth of discovery of secret
Although disclosure of grand jury transcripts over later assertions of the fifth amendment is not as common as disclosure based on subsequent memory failures, courts have held that such fifth amendment assertions do justify disclosure. See, e.g., United States v. Borden, Inc., 1976-2 Trade Cases ¶ 61,177 (D.Ariz. 1976); In re Disclosure of Grand Jury Transcripts, 309 F.Supp. 1050, 1053 (S.D.Ohio 1970). The finding necessary to justify disclosure is a need sufficiently compelling and particularized that disclosure is essential to avoid an injustice. There is no plausible reason why a witness’ invocation of the fifth amendment would foreclose the possibility of such a finding.
Ill
The district court noted that, with release of the transcripts involved in this appeal, the opt-out plaintiffs will in the future face a greater burden in demonstrating a need for disclosure of other transcripts. The only issue before this panel, however, is whether the district court abused its discretion in ordering release of the five transcripts. We conclude that it did not and, accordingly, we
AFFIRM.
. First-time readers may wish to review the general summary of the litigation’s background which appears at 643 F.2d 195 (5th Cir. 1981).
. Throughout this opinion, we refer to “grand jury transcripts” to describe transcripts of testimony, interviews, and interview statements from the grand jury investigation.
. Fed.R.Crim.P. 6(e)(3)(C)(i) provides that “[disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made ... when so directed by a court, preliminarily to or in connection with a judicial proceeding.”
. The district court based its denial of plaintiffs’ motion to compel on the current uncertainty of the law in the area. See In re Corrugated Container Antitrust Litigation, Appeal of John Conboy, 661 F.2d 1145 (7th Cir. 1981) (en banc), cert. granted sub nom., Pillsbury Co. v. Conboy, 454 U.S. 1141, 102 S.Ct. 998, 71 L.Ed.2d 292 (1982).
Reference
- Full Case Name
- In re CORRUGATED CONTAINER ANTITRUST LITIGATION. ANCHOR HOCKING CORPORATION, Opt-Out v. ST. JOE CONTAINER COMPANY, Edwin A. McCain, Grand Jury Witnesses-Appellants
- Cited By
- 1 case
- Status
- Published