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

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