This is an appeal from an order of the district court refusing to vacate an
ex parte
order authorizing the disclosure to the Civil Division of the Department of Justice of the grand jury transcript and exhibits in connection with an investigation of charges made by the petitioner Litton Industries, Inc. (Litton), under a government contract. The district judge found that the government had met the test of “particularized need” required for such disclosure under Rule 6(e), Fed.R.Crim.P. for use in defending a civil proceeding by Litton to recover extra charges.
See United States v. Sells Engineering, Inc.,
I.
This is a judicial proceeding that seems to have no end. It arose out of a contract executed in 1968 between Litton Industries, Inc. and the United States Navy for the construction of three nuclear submarines at its Ingalls Division in Pascagoula, Mississippi. Two years later (in 1970), Litton filed a claim for extra costs. The Navy contracting officer denied such claim except for $3 million. Litton appealed to the Armed Services Board of Contract Appeals (Board). The Navy sought a stay of such appeal, in order to permit consideration of possible fraud in the assertion of the claim. Stay was denied. The matter proceeded to a hearing before the Board. After the Board hearings had been concluded but before decision, a grand jury was impaneled in March, 1975, to investigate any possible fraud in Litton’s claim. A month later the Board issued its decision, awarding Litton some $13 million beyond the $3 *1296 million allowed by the contracting officer. The initial investigatory grand jury’s term expired without any indictment being returned.
After the term of the initial grand jury expired, discussions of settlement were carried on by the parties for a month or two until, in November of 1976, Litton terminated consideration of the Navy’s proposal for settlement. The Department of Justice, to which the Navy’s claim of fraud had been referred, submitted the matter of possible fraud by Litton to another grand jury for the purpose of seeking an indictment in February, 1977. When advised of this development, Litton sought to work out a settlement with the Department along the lines of an earlier proposal of the Government. After a hearing before the Attorney General, the determination was made to continue with the prosecution and on April 6, 1977, the grand jury returned an indictment against Litton for filing a false claim in violation of § 287, 18 U.S.C. On the same day, Litton filed its action in the then Court of Claims to recover the award made in its favor by the Board. To that action the government responded by denying Litton’s claim and by asserting a counterclaim to recover for alleged fraudulent charges by Litton.
Litton moved in the district court where the criminal proceedings were pending to dismiss the indictment for prosecutorial misconduct and for collateral estoppel.
1
This motion was granted in May, 1977. Such dismissal was appealed and was reversed in April, 1978 by this Court,
U.S. v. Litton Systems, Inc.,
Trial of the criminal case was delayed while Litton engaged in negotiation for settlement of the civil suit and dismissal of the criminal prosecution. On March 19, 1984, the Government moved ex parte for an order “authorizing the disclosure of evidence, both documentary and testimonial, presented to two Special Grand Juries convened ... from March 1975 to April 1977____” In support of that motion, the *1297 Government alleged it expected Litton to “seek to negotiate simultaneously a criminal plea and a civil settlement. In either event, government attorneys and personnel handling the civil litigation need to evaluate the grand jury materials, which are admittedly relevant and central to the issues in both the criminal and civil cases, and which Litton and its attorneys ... have had unfettered access [to] for seven years.” The district judge promptly granted the motion ex parte 3 Thereafter, following a two-months trial in the Mississippi district court, to which by a motion for change of venue the criminal prosecution had been transferred, Litton was acquitted of the criminal charge in December, 1984.
In August, 1985 — after the criminal prosecution had been concluded but while the civil suit was still proceeding — counsel for the Government advised counsel for Litton in August, 1985 of the district court’s earlier ex parte order releasing the grand jury records to the Government’s counsel conducting the defense of the civil action. More than three months later Litton moved the district court to reconsider its order releasing the grand jury materials to the Government’s counsel in the civil suit. By way of relief, Litton requested the entry of an order to reconsider and vacate the district court’s ex parte disclosure order, to order the return of all grand jury materials, to forbid any Government attorney who had access to the grand jury materials from participating in the civil proceedings, to prohibit the Government’s use of any grand jury materials in the civil suit, and to prohibit any further disclosure of grand jury materials. That motion came on for hearing before the district court, and, after a full hearing, the district judge entered his order denying the motion.
In denying the motion in an oral opinion, the district judge first declared that whether proof of a “particularized need” for disclosure of the grand jury records under Rule 6(e) exists “depends ... on the circumstances of the [particular] case.” He then found, based on his intimate connection with the case over the years, that the civil action between the parties in the Court of Claims and the criminal proceedings represented “parallel proceedings, and almost identical proceedings.” He noted that the transcripts of the grand jury proceedings were “in the hands of Litton” and found a similar need on the part of the Government for “these transcripts even in a wholesale manner as they have asked to enable them to get the timely testimony of the witness to be able to impeach that witness if it [sic] testifies to the contrary, to allow them to conduct meaningful discovery in the Court of Claims civil proceedings.” He further observed that the long “lapse of time” between the grand jury proceedings and the request for disclosure, as well as the disclosure to Litton, all of which he found to be a factor to be considered in resolving the issue of “particularized need”, warranted the disclosure. Finally, he pointed out that much of the proceedings before the grand jury had “been thoroughly aired” in the criminal proceedings and that the need for secrecy of the grand jury proceedings is “just not as important or as crucial as it had been.” He accordingly denied Litton’s *1298 motion. It is that denial which is the subject of this appeal. 4
II
The traditional rule of grand jury secrecy is codified in Rule 6, Fed.R.Crim.P. The Rule, however, includes a number of exceptions under which the secrecy may be broken and disclosure made. Only one of these is relevant to this controversy. In subsection (e)(3)(C)(i) of the Rule, it is provided that disclosure of grand jury materials may be made “when so directed by a court preliminarily to or in connection with a judicial proceeding.” While other sections of Rule 6(e) authorize
ex parte
disclosure automatically both to government attorneys engaged in enforcing criminal law and to those assisting those attorneys “in the performance of such attorney’s duty to enforce federal criminal law,” Rule 6(e)(3)(C)(i) does not in similar explicit terms grant government attorneys engaged in civil proceedings any
ex parte
automatic right to disclosure of grand jury materials.
5
Despite this absence, it is said to have been routine in the Department of Justice to assume that (C)(i) conferred a like automatic right of access to Government attorneys engaged in civil litigation to that accorded those engaged in the enforcement of criminal law. Swenson,
The Implications of United States v. Sells Engineering, Inc. and United States v. Baggot,
12 Am.J.Crim. Law 327, 329 (1984);
cf.,
however,
In re Grand Jury,
After commenting that “[njeither the text of the Rule [i.e., (C)(i)] nor the accompanying commentary describes any substantive standard governing the issuance of orders of discovery”, the Court in
Sells
also provided some guidance on the actual application of the Rule. It declared that an applicant for disclosure under the Rule is required to make “a strong showing of particularized need for grand jury material before any disclosure will be permitted.”
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.
The trial court, in determining whether to release grand jury transcripts and materials under this construction of the Rule as enunciated in
Sells
and
Douglas,
is to balance the petitioner’s need for release against the traditional public interest reasons for grand jury secrecy and “only in those cases where the need for [disclosure] outweighs the public interest in secrecy” will the requirement of “particularized need” for release be found to exist.
In fact, the federal trial courts as well as the Courts of Appeals have been nearly unanimous in regarding disclosure as committed to the discretion of the trial judge. Our cases announce the same principle, and Rule 6(e) is but declaratory of it.
And in
Petrol Stops Northwest v. Continental Oil Co.,
While it is true that the courts have used terms of some “apparent linguistic rigor” in stating the standard of proof to be met by one seeking grand jury materials disclosure, we agree with the comment of the court in
Re Final Grand Jury Report, Etc.,
It follows that in any case where disclosure is sought, the existence or absence of the traditional needs for grand jury secrecy as well as the needs for disclosure must be carefully assessed under the balancing test mandated by
Douglas, Illinois
and
Sells.
The strength or weakness of the need for secrecy will naturally determine how strong or minimal must be the justification for disclosure made by the party seeking disclosure under this test.
See Pittsburgh Plate Glass,
Grand jury secrecy is, of course, not an end in itself. Grand jury secrecy is maintained to serve particular ends. But when secrecy will not serve those ends or when the advantages gained by secrecy are outweighed by a counter-vailing interest in disclosure, secrecy may and *1300 should be lifted, for to do so in such a circumstance would further the fair administration of criminal justice.
The public interest factors to be considered under the
Douglas
balance test are those “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 jurors 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.441 U.S. at 219 ,99 S.Ct. at 1673 .
The trial court, in considering the motion to disclose, should consider as an additional public interest concern, “the possible effect upon the functioning of future grand juries” by encouraging persons to testify fully and freely before future grand juries.
In
Pittsburgh Plate Glass,
Justice Brennan, in dissent, stated much the same public interests concerns in justifying grand jury secrecy, which must be considered in the balancing test. In his formulation these interests are: “(1) To prevent the accused from escaping before he is indicted and arrested or from tampering with the witnesses against him. (2) To prevent disclosure of derogatory information presented to the grand jury against an accused who has not been indicted. (3) To encourage complainants and witnesses to come before the grand jury and speak freely without fear that their testimony will be made public thereby subjecting them to possible discomfort or retaliation. (4) To encourage the grand jurors to engage in uninhibited investigation and deliberation by barring disclosure of their votes and comments during the proceeding.”
7
All of these reasons, as stated in
Douglas
and
Pittsburgh Plate Glass,
(Brennan, J., dissenting) and as we have already observed, may be and often are substantially weakened by the facts of the particular case. The facts considered in this balancing of reasons favoring or dissuading disclosure of grand jury materials are “necessarily couched in broad terms,”
United States v. Sobotka,
Probably the most common factual circumstance which is found in the decisions as a reason for regarding the public interest in grand jury secrecy diminished in a particular case is the fact that the grand jury whose materials are the subject of a disclosure motion has terminated its investigation. In
In Re Grand Jury,
Substantially, all the public interest considerations favoring secrecy are satisfied after the grand jury investigation and the resulting criminal proceedings have been exhausted except for the consideration of “the possible effect upon the functioning of future grand juries” as stated by Justice Powell in his opinion in
Douglas.
Moreover, all these public interest considerations may well present “less risk of further leakage or improper use,”
Sells,
peculiar to Government movants, that weigh for or against disclosure in a given case. For example, a district court might reasonably consider that disclo *1302 sure 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 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, [441 U.S.], at 222-223 [99 S.Ct. at 1674-1675 ]. And “under the particularized-need standard, the district court may weigh the public interest, if any, served by disclosure to a governmental body____” Abbott,460 U.S., at 567-568, n. 15 [103 S.Ct. at 1361-1362, 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.463 U.S. at 445 ,103 S.Ct. at 3149 .
Over against these public interest considerations are to be balanced the “particularized needs” of the party moving for disclosure. As
Douglas
makes clear, and as we have already observed, the showing of “particularized need” may be diminished by the weakness of the public interests concerned in continued secrecy.
10
One’s right to disclosure may not, however, rest simply on the weakness of the public interest considerations in favor of secrecy; there must be a showing of some real need on the part of the moving party. And this need, in the case of an application by the government, must be more than a legal conclusion that the Civil Division was entitled to disclosure on the Division’s simple statement “that it has a legitimate interest in the disclosure” and has a “need” for disclosure,
In re Grand Jury Investigation,
... it is especially important that the defense, the judge and the jury should have the assurance that the doors that may lead to truth have been unlocked. In an adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant facts. Exceptions to this are justifiable only by the clearest and most compelling circumstances. For this reason we cannot accept the view of the Court of Appeals that it is “safe to assume” no inconsistencies would have come to light if the grand jury testimony had been examined. There is no justification for relying on “assumptions”. 13
Ill
Applying these principles in this controversy, we conclude the district judge did not abuse his discretion in granting disclosure and in refusing to vacate his order of disclosure. The public interest reasons that argue for continued secrecy are substantially answered by the facts of this case. The grand jury proceedings had terminated some four years before and the resulting criminal proceedings have been concluded by a jury verdict after what the district court described as a full “airing” of the entire controversy. Litton has had unlimited possession of the grand jury material for about eight years. There will be no opportunity for an accused to escape or to avoid arrest by reason of this additional disclosure if allowed; if Litton had wished [and we do not mean to suggest it would have], its opportunity to tamper, frighten or embarrass any potential grand jury witness has long passed; and whatever chances there may have been for retalia tion against an employee for his testimony before the grand jury ceased shortly after Litton acquired the grand jury transcript [there is, it should be said, no evidence of the slightest attempt in this regard]. Further, no witness before the grand jury in this case has come forward to request protection from disclosure, though the Rule, as we view it, unquestionably permits such intervention by a witness.
Moreover, it must be borne in mind that the grand jury investigation resulted in an indictment. The trial under that indictment lasted for two months. Voluminous testimony was taken. Witnesses — presumably many of those who had testified before the grand jury — testified. Documents were introduced. As the district judge said in granting disclosure, this whole matter has already been thoroughly “aired” publicly. Coupling this with the fact that Litton has had for eight years the grand jury material, we can perceive no abuse of discretion on the part of the district judge in releasing to the government the grand jury materials. Certainly Litton can claim no prejudice unless it be that for some reason it is to be given the advantage of access to a “storehouse of fact” to which the government, its adversary, is denied access. Furthermore, whatever effect disclosure might have on future grand jury proceedings occurred when prior disclosure was authorized and granting disclosure to the government now will not add materially to this effect.
It must be borne in mind, too, that the district judge who entered the order in this case had been intimately involved in this proceeding from its inception. He convened and was responsible for the grand jury which investigated the facts in this case. When an indictment was returned, it was returned before him. All the initial motions and proceedings in the criminal proceedings were before him. No one was better able than he to evaluate the reasons, pro and con, on the issue of disclosure.
*1304
There can be little argument that the government has a need for the grand jury materials if it is to litigate on equal terms with Litton in the civil proceedings. Litton obtained access to these materials because it was thought that such access was important in Litton’s defense in the criminal ac7' tion. Since, as Litton alleged, the issues iii both the civil and criminal proceedings were “identical” and presumably the relevant evidence the same, the civil branch of the Department of Justice has the same interest in and the same right to this material as Litton had.
14
Moreover, because of the lapse of substantial time, access to a record made when the recollections were not so dim would be of great value in performing what Justice Powell described in
Douglas
to be “the typical showing of particularized need.”
The result reached by the district judge in this case follows precisely the pattern of decision in
Douglas.
The Supreme Court reversed
Douglas
in
On remand in Douglas, the California district court decided that disclosure was appropriate. As stated in the opinion of the Court of Appeals, the California court, in reaching its decision,
noted that the first three reasons for grand jury secrecy were “of no pertinence whatsoever” in the instant case, since the grand jury was no longer in session and the criminal proceedings had terminated. The weight of the fourth factor — encouraging untrammeled disclosure — was sharply reduced by the fact that the transcripts Petrol Stops sought had already been released to Douglas and Phillips, so that disclosure to Petrol Stops would create no additional risk of reprisal by Douglas and Phillips against employees who had testified. The relevance of the fifth factor was greatly diminished because Douglas and Phillips had pleaded nolo contendere.647 F.2d at 1009 n. 2.
The Arizona district court, “[g]iven that determination” by the California court, granted disclosure and on appeal, the decision granting disclosure was affirmed.
Petrol Stops Northwest v. Continental Oil Co.,
15
Litton has, however, cited
In re Grand Jury Investigation,
CONCLUSION
Accordingly, we conclude the decision of the district court herein should be and is
AFFIRMED.
Notes
. Litton alleged in its motion to dismiss that “ '[t]he subject matter of both the ASBA decision [which is the subject of the Court of Claims action] and the indictment are the same’ and that the issues in the criminal prosecution and the ABSCA proceedings ... are ‘identical’.”
. The Court of Claims order actually stayed discovery until the Fourth Circuit ruled on the dismissal of the criminal indictment which was then on appeal. Litton later agreed to an extension of the stay until the completion of the criminal proceedings, however, when the government conditionally paid Litton the $13 million dollars at issue before the Court of Claims.
. The Rule expressly permits the granting of such a motion by the government ex parte. Section 6(e)(3)(D) of the Rule provides that the motion may be ex parte "when the petitioner [for disclosure] is the government____”
The petition of the government for the ex parte order referred to the fact that Litton had obtained previously an order of the trial court giving it complete access to the transcripts of all proceedings before the grand jury, including the documentary material, without any limitation on its use but while the government’s counsel, pursuing this action, was deprived of all access to that material. As a result of this situation where Litton had unbridled access to all the grand jury transcripts and materials and the government was denied such access in a case which Litton had alleged was "identical" both on its facts and issues to the criminal proceeding considered by the grand jury, the government alleged that Litton enjoyed "a decided advantage [over it] in preparation for the upcoming Claims Court proceedings.” Further, the government, in its petition, alleged that it expected attempts by Litton to negotiate "simultaneously a criminal plea and a civil settlement” and that the government needed access to the same grand jury records as Litton in order to "evaluate" properly Litton's claims in any such attempted negotiations.
. The appealability of the order herein is not contested.
See In re Grand Jury Investigation,
. The Rule does make a clear difference between the rights of the government and that of a private party in one instance. It does permit the granting of an order of disclosure ex parte on motion of the government but requires notice in the case of a private party. This difference, recognized in the Rule, merely illustrates the difference that, under certain circumstances, is to be made between applications for disclosure to the government and disclosure to the private party, a point adverted to in Sells, as discussed later herein.
. Continental Oil Co. was an affiliate of Douglas Oil. Thus, while the two opinions differ in the name of the defendant, actually the two cases had the identical defendant, called in one case
Douglas
and in the other
Continental. See
. This further consideration has been removed by the language of 6(e), which eliminates from disclosure under the Rule the votes and deliberations of the grand jury.
. This opinion preceded the adoption of Rule 6(e) in 1946.
. This language in
Socony-Vacuum
is quoted with approval by Justice Brennan in his dissent in
Pittsburgh Plate Glass,
. In
Douglas,
Justice Powell said “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."
.
See In Re Grand Jury Subpoenas,
.
In re Screws Antitrust Litigation,
. This was a criminal case but the reasoning is equally applicable in a civil case such as we have here.
. See note 3 supra.
. This was the new title of the case.
. It is interesting that Litton cited Douglas as establishing that the possession by the opposing party of the grand jury transcripts will not justiity disclosure. It may be that, standing alone, that fact will not require disclosure absolutely but it is a significant fact in determining whether to disclose. In fact, it seems to have been the decisive/fact inducing the court in Douglas on remand^ to grant disclosure. Litton strangely *1305 does not note this later opinion in the Douglas case, which largely answers its argument. Moreover, the denial of certiorari on the opinion after remand has more than normal importance. Had the new opinion been at variance with what the Supreme Court had earlier decided in the case it is to be assumed it would have reversed.