*1 discussed, supra, therein and the cases a decision perceive how is hard to rejecting existence
reached those partnership. Most of claimed taxes; we but
were controversies about why should see no reason concluded, how- applied here. haveWe Cameron, Judge, Circuit dissented. officers ever, to let administrative insure case to take another look at the orderly pro- requirements
cedure observed. is, judgment below court re-
therefore, case and the reversed back
manded sent so that it Secretary in the reconsideration light principles herein. announced
Reversed remanded. MANUFACTURING
ALLIS-CHALMERS Appellants, al., et COMPANY PIERCE, FLORIDA,
CITY OF FORT Appellee.
No. 20345. Court of Fifth Circuit.
Sept.
proved respects and confirmed in all Dyer, the Honorable David W. Chief Judge of Southern District Florida. directs the disclosure The order Joseph
portions W. grand jury. a before federal McMullen un- the statement order contained The 1292(b) effect der 28 U.S.C. § controlling question of is involved law ground is substantial as to which there opinion for difference might materially appeal ad- immediate termination vance the ultimate litigation. Court, filed order ap- February 1963, granted leave interlocutory peal order from the Davis, Polk, Gillespie, Ward- Hazard S. Judge Dyer Chief Kiendl, York New & well, Sunderland duly appeal was thereafter filed. Yancey, Hervey & Smathers City, appellant now the order. Fla., We affirm Miami, for Thompson, Mfg. Co. proceeding Allis-Chalmers which the order The Elkins, us is one about 1800 Vinson, incident Searls, David T. ap- proceedings Tex., which have been Searls, Houston, for &Weems brought courts federal district Company. pellant Electric General complaints throughout country. The Kelleher, Kelleher, & Harry Lemle B. damages proceedings these seek treble Burns, Orleans, La., Robert C. New Burns, Middleton, Act, Clayton under 4 of the Section Farrel, Rogers Palm & arising from defendants’ U.S.C. § Beach, Pepper, Miami Beach, Fla., Claude 1 of the activities in violation of Section Westinghouse Electric Fla., appellant for Act, The activi- Sherman U.S.C. § Corp. alleged subject of ties were investi- Clark, Jr., C. William E. Merrell gation by juries sitting in federal Willes, City, Chanler, Errol S. York New Pennsylvania in the Eastern District of Kohn, Fla., Aaron Pierce, E. Harold Fort 1960 and a result which as Kalish, Paxson, Kohn Dilworth, Fine, M. charging indictments were returned cer- Winthrop, Pa., Philadelphia, Dilks, & among corporations individuals, tain Roberts, York Stimson, New & Putnam present were the defendants in the whom Berger, Phila- appellee; David City, for action, with violations the antitrust Pa., delphia, of counsel. including laws, price fixing, rigging bid RIVES, CAMERON and Before and market allocation in connection with Judges. HAYS,* heavy Circuit the sale of items of elec- various equipment. trical Judge. HAYS, Circuit devising orderly With view appealed handling system from was cases, here these The the United States District the Chief Justice of the United appointed States entered District judges, Southern committee federal George chairmanship Honorable H. under the of Chief Florida Judge Boldt, District Albert Murrah of the Court of Washington, District of for the Tenth Circuit. This Western committee plan sitting District of pre- worked out a in the Southern under which ap- Special It Master. orders have been entered each Florida
*
sitting by designation.
0£ the Second Circuit
significant
discrepancy
facts
proceedings
in which
districts
concealed, or
which the witness
providing for the establishment
pending
Deposition
remember,
deposition.
failed
National
is called a
what
necessary
Program.
to un-
feature of
Such
as is
central
*3
Program permits
complete
cover full
facts must be
Deposition
National
taking
any
depositions
If,
completion
of
each
of
allowed.
deposition
at the
of
a series
having
been
taken in the national
as
to be considered
which is
program,
simultaneously
districts
a motion
for
in all the
is made
taken
production
pending.
of that witness’ Grand
in which cases are
Jury testimony,
deposition
and if the
taking the
of
in the course
It was
Judge requests it from this Court
Joseph
deposition
McMullen
W.
of
camera,
for examination in
testi-
Program
Deposition
part
the National
of
mony
immediately
will
requested
to the
plaintiff
access
deposition
available to him. The
testimony
McMullenbefore
Mr.
of
earlier
Judge may then contrast the Grand
grand juries.
the federal
Jury testimony
deposition
with the
taking depositions un-
course of
In the
determine,
discretion,
in his own
Program
whether
issue
of
der the
justice
whether in the interest of
right
of
disclosure
plaintiff has a
compelling
is
there
need for dis-
testimony
a
jury
arisen in
has
closure.”
occasion of
On the
number of instances.
City
Westinghouse
Philadelphia
of
taking
deposition witness
of
the
Allen,
of
Corp.,
(E.D.Pa.
Elec.
Judge Clary
of the United
Chief
1962).1
for the Eastern
District Court
Pennsylvania,
reaching
Judge Clary
where
his
District of
grand
decision
sought
testimony
physically
Department
from the
of Justice
application
position
located,
for dis-
respect
a statement of its
denied an
with
ordering
of
to the
court’s
closure
Judge
grand jury testimony.
Department
At the same time
the witness.
following
Clary held,
examina- made the
after
extensive
statement:
“
of the authorities:
tion
power
‘1. That such
exists in
any
Jury transcript of
this Court.
Grand
“[T]he
“
deposed
program,
in
witness
this
power
‘2. That such
should be
this district
other
either in
only
exercised
if and when the Court
district of the United States
makes the same kind of determina-
pending,
cases are
which these
tion as to the need for such dis-
dep-
should be made available
closure a
court would
Judge
use in his dis-
osition
usually make.
trict.”
“
That such
‘3.
determination
Judge Clary continued:
requires an in camera examination
may
probably
transcript by
will be
“There
of the
this
Court for
during
deciding
many
purpose
these na-
instances
whether or
justice
depositions when disclosure
rule
will
tional
not the
be better
may
not
be advisable. Were it
served
such disclosure than
summary
availability
non-disclosure,
is,
Allen’s
whether the
Jury testimony,
maintaining
public
this
Grand
interest
just
Jury process
that sort of in-
have been
the Grand
outweighed by
open
particulari2;ed
The refusal to
Allen’s
stance.
show-
ing
production
cannot rule out
that disclosure is needed to
litiga-
just
examination
achieve
result in
where
camera
this
Judge
deposition
uncovers material
tion.
appeal
Appellee’s
brief indicates that
the Court
the Third Cir-
Clary’s
dismissed
cuit.
decision was
from
“
ordered disclosed we
such a determi-
been
‘4.
where
That
appellee’s
the de-
brief
much
formed
nation is made
so
do
fendants have stated
plan
disclosed
shall be
appeal.
achieve this result.
needed to
“
Clary’s
particular
in the case
‘5. That before
over,
provision
is turned
the Justice
witness Allen contained
given
securing
deposition
Department
judge’s
a reasonable
opportunity
express
in advance
its view as
a witness
contemplated
taking
F.
propriety
(210
of his
491).
ques-
Supp. p.
In accordance
turnover
*4
”
Judge
pro-
provision,
present
Boldt
tion.’
taking
ceeding,
of McMullen’s
before the
the order
decided before
In
three
begun,
deposition
requested
re-
and
had
Judge Clary
entered,
access to
was
of
of McMullen’s
ceived the
(In
grand jury
re Grand
records
same
taking
testimony.
of
As the
Proceedings,
(E.D.
Jury
151
29 F.R.D.
Judge
deposition proceeded,
Boldt
Cir.,
(3d
Pa.1961),
309 F.2d
aff’d
grand jury testimony. On
followed the
1962);
Elec.
General
States v.
day
deposition pro-
the fourth
of the
F.Supp.
(E.D.Pa.1962)),
ceeding plaintiffs
of
for disclosure
moved
grand jury subpoenas (Appli-
and
testimony. Judge Boldt
Mr. McMullen’s
granted
California,
F.Supp.
cation of State
conclu-
motion. After the
(E.D.Pa.1961))
denied. However
was
deposition
sion of the
he confirmed his
cases,
not connected
which were
in these
Judge
prior
for
order
disclosure.
Boldt’s
Program,
Deposition
National
with the
“approved
order for
disclosure was
sought
plaintiffs
access to
respects” by
(cid:127)confirmed
all
Chief
discovery
general
purposes
records for
Judge
Dyer
David
of the United
W.
purposes
limited
for the
rather
States District Court for the Southern
Judge Clary
by
held
which were
District
Florida.
distinguished by
proper.
cases were
Judge
ground
Clary
(210
McMullen,
deponent,
on this
J. W.
dis-
they are likewise
pp. 490-491),
at
clearly
closure of whose
was ordered
distinguishable
the case with
present proceeding, was,
from
in the
at the
dealing.
presently
grand jury,
arewe
time he testified before the
Which
appellant
a Vice-President of
Allis-
Clary’s order,
Judge
disclosure
Since
Manager
Chalmers and General
of its
in the case
six wit-
directed
been
has
Equipment
posi-
Power
Division. In this
Judge
nesses,
Boldt
three
three
charged
gen-
tion McMullen was
Feinberg
Judge
Dis-
the Southern
supervision
eral
over the manufacture
Judge Boldt
York.
has de-
of New
trict
type
heavy
and
equipment
sale
electrical
application for disclosure of the
nied
subject
which was the
witness.
of one
grand jury indictments. McMullentesti-
interlocutory
Applications for
review
grand jury April, 1960,
fied
four cases
denied in
been
have
June,
Eight
and in
of the indict-
Second,
Appeals in the
Third
Courts
charged
ments
Allis-Chalmers as a de-
(Atlantic City
Circuits
Elec.
Seventh
charged
fendant and
two it was
Co.,
tance of
contrary
cuit has
reached
con-
jury proceedings and continued:
Spangelet
clusion. United States v.
follow, however,
“It does not
Cir.], 258
[2
F.2d 338. Be
grand jury minutes should never be
may,
question
resolution of that
available
the defense.
must
await
case where the issue is
long
that there are
held
presented
the record. The short
occasions, see United States v.
present
of it is that in the
case the
Gamble, supra,
Procter &
[356 U.S.]
petitioners did not invoke the dis-
986-987,
at 683
S.Ct. at
[78
L.Ed.
judge,
cretion of the trial
but as-
1077],
judge may
2d
when the trial
supposed
right,
serted a
absolute
of his
in the exercise
discretion order
right
which we hold
did not
minutes of a
witness
400-401,
have.”
Harlan for of the disclosure Chance involved We hold that disclosure of Denying application case. Mr. Jus- jury testimony granted properly is where tice Harlan said: compelling there is a dis need I have “After due deliberation required closure and such stay reached the conclusion that a justice. the ends of Disclosure even Putting should not issue. aside the closely these circumstances must procedural issues, I satisfied that am portions confined to the limited light v. Procter United States testimony for which there is found Co., & Gamble 78 S.Ct. particularized U.S. need. Pittsburgh 1077; 2 L.Ed.2d The standards which we have set States, Plate Glass Co. v. United forth are the standards fol which were S.Ct. by Judge ordering lowed Boldt in dis 1323, and the determinations made present closure deposi in the case. As Court, no the District there is judge, tion after in camera examination expectation reasonable that certio- of the testimony, granted by rari will this Court particulars found that “in several obvi respect underlying ques- to the ously importance litiga of utmost in this tion. In such circumstances the tion, particular compelling need granting already stay, of a unani- * * * shown”, has been and that “the mously denied the the Court of justice clearly ends of require” disclosure. obviously Appeals after deliberate particular determination in a case matter, consideration of the would of whether or not disclosure justified. Magnum will be not be port Im- granted properly to be left Coty, Co. v. 163- “sound discretion of the district court” 922; 67 L.Ed. Tri- (Pittsburgh Plate Glass Co. v. United Corp. Continental Financial v. Unit- States, supra; City Atlantic Elec. Co. ed S.Ct. L.Ed.2d Co., A. B. supra.) Chance 613.” B.A. Chance Co. v. Atlantic City Elec. 10 L.Ed. We find no reason to disturb the lower 122, (1963). 2d court’s pres- exercise discretion in the showing ent ease. There is no that that argument Appellants stress in their discretion was abused. desirability preserving Affirmed. grand jury proceedings. They cite Gamble,supra, v. Procter United States & CAMERON, (dis- Circuit Pittsburgh Plate Glass Co.v. United senting) . States, supra. sup- These cases do indeed proposition port the for which private is a civil action for dam- cited, importance e., ages, i. of the element buyer between the and sellers of secrecy. But, seen, equipment. as we have each governing The rules distinguishable cases is two on triál of such a case are the Federal Rules present facts from the its case. More- of Procedure, Civil interpreted by courts, over both the Court discusses the federal by agree- or as modified justify making standards which will parties. an ment of the The fact that this general exception secrecy. eighteen-hundred-odd rule of case is one is, therefore, impor- The issue not the not, electrical my anti-trust cases is secrecy. importance opinion, tance of That “par- sufficient *10 granted by by Judge accepted all and was ticularized need in case of [this] one departure point required by Boldt as a basic in witness” Supreme the plaintiffs’ applica- prerequisite the consideration as a opening up to the
243 1962, grand jury grand jury records. United States 486. The 1958, 677, testimony Gamble, before whom Procter and the here con- given 983, 1077. cerned was in sat that district. production But it would seem that vel non many agree general, of the I In judge trying is a decision for the the majority’s law of the abstract statements sought case in which the records are grand governing production of the used. be testimony. agree such I that whether initially words, “particularized produced In other no records “good by in or need” cause” shown before decision to be made the judicial I discretion. the was released. As read the exercise of sound ruling, any (though Clary’s deposition apply here The same standards govern may transcripts perhaps master any that the the in strictly) more obtain documents, by parties production etc. of these cases at time persons discovery progresses. by or I under Rule or third examination as parties conform under F.R.Civ.P. See believe this does not Rule fact, spirit Gamble, supra. it letter or Rules and Procter the that the would seem of one of course much that the utilization followed observed too loose by only these Rules is the manner which which a standard must be used may dealing records the from their when with “the extracted serving non-government public community in custodian case. institution might testifying if [which] suffer those modify quash of motion After a today knew their subpoena Rule is made under testimony would lifted tomorrow.” produce made under a motion to when Gamble, supra, Procter and 356 U.S. at party the burden on seek- L.Ed.2d S.Ct. Dis- “good ing production cause” to show sitting trict Courts this Circuit are Rules a “need” for the documents. not, my opinion, released from com- 45, F.R.Civ.P.; Procter and by Judge pliance Clary’s with the Rules Taylor, supra; Hickman v. delivery proffer and of the minutes. 451; 385, 91 L.Ed. Cir., 1959, Blackford, particular problem Herron before us has course, passed upon Supreme the case of an F.2d 723. Of attempted never been jury testi- disclosure of Court. At stake is a vast amount of mony, are not at stake which interests secret be disclosed eighteen parties, custodian, of the or some those hundred cases. It is my opinion procedure witness who is called here testify, general upon of the but also utilized is not without manifest preserving firmity; public willing give interest and I am not —an traditional until countenance so instructed proceedings. Any concept Supreme workable Court. procedure require would there be questions I raise two other as to the opportunity objection reasonable ' procedures correctness of the followed oppor- to made. no There was upon by appel- The “need” below. relied tunity here. by hindsight. lees seems to be revealed general case, Compare I proposition As understand the facts possession “probable master was in existence cause” is tested light times, at all and had of information available when discovery pro- taken, considering obtained it when these action is not in what is ceedings began, authority under the later discovered. Not until the master opinion Clary compared rendered Chief as disclosed in of the District Court of the United him with the state- Pennsylvania, the Eastern District of ments the witness could case, City Philadelphia in another need for have been demon- Westinghouse Corp., E.D.Pa., Only Electric knew strated. he what he saw. *11 part by F.R.Civ.P. most Rule showing. the Depositions Under such There was no other “discovery may used need, if such procedure, evidence 26(a). Rule as evidence.” or for use appear shown, not does can be was Thereby deposition McMullen of witness The produced.1 are the documents Order Pre-Trial under 26. taken requirements is de- purpose the the deposition-taking dis- necessarily was No. 8. The not does feated. This attitude may covery; deposition taken showing the con- of a contemplate the that evidence. This is true not he used as deposition the and the tradiction between e., the depositions, trial on all i. until the made be- must be merits, deposition is offered released, and until the Pitts- transcript can be the fore discovery evidence, depositions burgh v. United Plate Glass Co. deposition McMullen tools. of Mr. The 400-401, 360 U.S. any deposition than a “trial” 1323; no more least there but at 3 L.Ed.2d any civil case. showing other taken the factual must be some particular witness’ need of say This is not to that This is released. before the at the disclosed can never be teachings of the to me to seems stage; discovery Procter and Gamble relating Supreme latest discovery. possibility involved But the subject, and Gamble Procter greatly preju- party “would be Pittsburgh supra. Glass, Plate or that without reference [the diced anti-trust that these fact The mere done,” injustice transcript] an would long out, and “complex, drawn cases are Gamble, supra, 356 U.S. at Procter expensive prosecute” no excuse. page 986, page L.Ed.2d at p. Gamble, supra, at Procter nearly great the dis- 1077 is not so 986-987, pp. S.Ct. at stage. covery Review court’s of the lower necessary discuss here 1077. It is not ruling point is not a review of on showings to in- would suffice factual what judge’s discretion, exercise of Court, for here the discretion of voke proceeding of whether he was under but showing was made. sort no legal mistaken “Na- notion these Depositions” discovery dep- tional are not too, opinion, principle my is not In governed and, thus, not ositions disclosure should followed here thereby imposed. stricter standards solely discovery pur- never be Clary’s Judge opinion, West- poses. cases decided view that the I am p. inghouse, supra, denying courts dis- federal the lower gov- expressly The stated that rule. he grand jury proceedings closure Judge Clary’s reply ernment, represent circumstances under similar expression of views on vitation cannot be distin- view and the better govern- subject “It is the stated: guished principle, and con- that no should be view ment’s favoring policy traction discovery purposes.” made for grand jury proceedings must Supreme made, all, taking depositions, if made at in- be and use therefore, governed I, applicable, dissent. for Court. as here sofar testimony, Dyer Judge Judge read heard the reveal 1. The record does not depositions, designated or read the 'to serve a Dis my opinion, “approval” is, for the Southern District of trict objection pro- contrary, Indeed, re sufficient. Florida. Special sitting is in addition followed to others cedures he was veals that text. Dis noted Master. It would seem that documents trict could majority opinion. page produced. There is no that Chief