Obtaining Documents and Testimony Presented Before A Grand Jury

• Pages: 179-189

179

CHAPTER IX

OBTAINING DOCUMENTS AND TESTIMONY

PRESENTED BEFORE A GRAND JURY

Antitrust cases often follow an announcement from the Department of

Justice that it has commenced a grand jury investigation of a particular

entity or industry. This can make documents and testimony presented

before a grand jury particularly important to the prosecution and defense

of related private antitrust actions. This chapter addresses potential

difficulties in obtaining documents and testimony presented to a grand

jury and the standards that must be met before the material will be released

to a civil litigant.

A. Grand Jury Secrecy

“‘[T]he proper functioning of our grand jury system depends upon the

secrecy of grand jury proceedings.’” 1 The secrecy surrounding grand

juries is strong and long-established.2 With certain exceptions, Federal

Rule of Criminal Procedure 6(e) recognizes the importance of this

1. Alexander v. FBI, 186 F.R.D. 102, 107 (D.D.C. 1998) (quoting Douglas

Oil v. Petrol Stops Nw., 441 U.S. 211, 218 (1979)).

2. Douglas Oil, 441 U.S. at 218 (“We consistently have recogn ized that the

proper functioning of our grand jury system depends upon the secrecy of

grand jury proceedings.”); United States v. Procter & Gamble, 356 U.S.

677, 681 (1958) (noting the “long-established policy that maintains the

secrecy of the grand jury proceedings in the federal courts”); In re Sealed

Case, 199 F.3d 522, 526 (D.C. Cir. 2000) (“There is a plethora of authority

recognizing that the grand jury context presents an unusual setting where

privacy and secrecy are the norm . . . . [S]ince the 17th century, grand jury

proceedings have been closed to the public, and records of such

proceedings have been kept from the public eye. Unlike typical judicial

proceedings, grand jury proceedings and related matters operate under a

strong presumption of secrecy.”) (internal quotation marks and citation

omitted).