MEMORANDUM AND ORDER
Thе Securities and Exchange Commission moves this court, pursuant to rule 6(e)(3)(C)(i), Fed.R.Crim.P., for an order disclosing testimony and documents generated in the course of grand jury investigations of John P. Galanis and Akiyoshi Yamada. The SEC also seeks permission for Lester Green, an SEC attorney, to disclose to the Commission “certain information” he learned while assisting the Unitеd States Attorney for the Southern District of New York in the conduct of the aforementioned grand jury investigations. The Chief of the Business Fraud Section of the United States Attorney’s Office for the Southern District of New York has informed the SEC that he has no objection to disclosure of the requested grand jury materials.
Of the thirteen defendants remaining in this action, six havе sought to oppose the SEC’s motion.
The circumstances which give rise to the present motion date back to 1970. From early 1970 through November 1971 the SEC conducted a formal investigation into the activities of Galanis and Yamada. As a
Subsequent to filing this action in 1971, the SEC referred the matter of Galanis’ and Yamada’s activities to the United States Attorney’s Office for the Southern District of New York for possible criminal prosecution. Original documents which the Commissiоn had collected in the course of its formal investigation were transferred to that office. Green, an SEC attorney involved in the Commission’s investigation of Galanis and Yamada, was detailed to the U.S. Attorney’s Office to explain the SEC’s criminal reference report and to assist in grand jury investigations. According to Green, “more than one grand jury was em-panelled to consider the pre-1972 illegal activities of Galanis and Yamada” and “[ajpproximately 15 criminal actions were brought during the period 1972 through 1975 against 14 of the defendants in this civil action and against other persons not named in the complaint who were associated with these defendants in the illegal activities.” Affidavit оf Lester Green, March 14, 1980 at 4 & n.3. Although Green was never appointed a special assistant United States Attorney, 28 U.S.C. § 515(a), see In re Perlin,
During the time he assisted the United States Attorney with the grand jury investigations and with criminal trials when indictments were returned, Green continued to рarticipate, to one degree or another, in the SEC’s civil action pending before this court. Green avers: “From April, 1972 through the date of this affidavit, I was aware that I had an obligation not to disclose to my colleagues at the Commission any information which I had learned from my work in assisting the United States Attorney’s office in connection with grand jury investigations into the activities of Ga-lanis and Yamada. To date I have complied with this obligation.” Affidavit of Lester Green, March 14, 1980 at 5-6.
In or about June, 1979, Green was informed by the Supervisor of the Mail and Records for the United States Attorney’s Office for the Southern District of New York that “all documents pertaining to certain cases” he had worked on while detailed to the U.S. Attorney’s Office were to be shipped, as records of closed cases, to government warehouses. Fearful that materials might be misplaced if shipped for storage, Green asked the United States Attorney’s Office to place the materials in sealed cartons and to send them to the SEC’s headquarters in Washington, D. C. This was done. Twelve sealed boxes were received by the SEC in Washington, D. C. and they remain there, under seal, pending resolution of the present motion for disclosure of grand jury materials the SEC believes are contained in the boxes. If disclosure is ordered, the SEC intends to “cull out” from the materials contained in the boxes
When confronted with a request for disclosure of grand jury transcripts “preliminary to or in connection with a judicial proceeding,” Fed.R.Crim.P. 6(e)(3)(C)(i), the court must balance the need for disclosure against the policy of grand jury secrecy. Douglas Oil Co. v. Petrol Stops Northwest,
The grаnd juries investigating Galanis’ and Yamada’s “pre-1972 activities” have concluded their work. The reasons for continued secrecy are few;
The SEC states that the grand jury transcripts it hopes to find in the twelve sealed boxes
Of greater significance is the SEC’s intent to use grand jury testimony given by the remaining defendants (if such testimony is found in the twelve boxes, see note 6 supra) to cross-examine those defendants and to refresh their recollections during depositions the SEC plans to take. There is support for such use of grand jury transcripts during depositiоns. E. g., Illinois v. Sarbaugh,
The wholesale discovery of grand jury transcripts sought by the SEC is denied without prejudice.
Grand Jury Documents
The Commission has requested permission to cull through the materials contained in the twelve boxes in an effort to locate original documеnts (brokerage, bank, and corporate records) relevant to this action. According to the SEC, most of these documents were initially produced to the Commission in the course of its formal investigation of Galanis and Yamada. The documents were then transferred to the United States Attorney’s Office together with the SEC’s criminal reference report. “While copies were made by the Commission of these documents, in many instances the copies are imperfect and illegible. In some instances some of the copies have become misplaced.” Affidavit of Robert M. La-prade, February 29, 1980 at 2. The remainder of the grand jury documents contained in the twelve boxes are alleged to be original documents produced directly to the grand juries pursuant to grand jury subpoenas.
A request for grand jury documents evokes different, and less exacting, considerations than a request for transcripts of grand jury testimony. Illinois v. Sarbaugh,
Grand jury documents are sought here for a lеgitimate purpose — use in a civil proceeding. While the SEC’s need for these documents is largely occasioned by its carelessness, disclosure will save the parties in this action from costly, and perhaps futile, discovery of documents produced to the SEC or directly to grand juries almost ten years ago. Cf. United States v. Saks & Co.,
Disclosure by Green
The SEC requests that Green be authorized to disclose, to the SEC “information he learned while assisting the United States attorney in the conduct of the grand jury investigations, deemed absolutely necessary to the prosecution of the civil action.” Affidavit of Robert M. Laprade, February 29, 1980 at 5. Green is said to be the only Commission employee “having a working knowledge of the complex and extensive facts and issues essential to the prosecution of the remaining defendants in this action.” Plaintiff’s Memorandum at 13.
There has been no showing of аny sort what information Green seeks to disclose. Thus, the court cannot balance the need for disclosure against the consequences, if any, disclosure might have on the secrecy of grand jury proceedings. If “certain information” includes Green’s recollections of specific grand jury testimony, for example, then the considerations discussed supra (disclosure of grand jury transcripts) apply here as well. Plaintiff’s request is denied without prejudice.
Accordingly, it is hereby ordered:
The twelve sealed boxes, presently located in the SEC’s Washington, D. C. headquarters, shall be shipped to the United States Courthouse located in the Southern District of New York, marked to the attention of the Clerk of the Court, to remain thеre under seal pending further order of the court.
So ordered.
Notes
. Defendants’ opposing papers, except for those of F. Peter Zoch III, are defective. Counsel’s affidavit on behalf of defendants Morton Dear, Robert Bier, and Thomas Marti no was untimely filed, contains legal arguments, and was not accompanied by a memorandum of law “setting forth the points and authorities relied upon in opposition.” Rule 9(b), General Rules of the U.S. District Court for the Southern District of N.Y. Counsel’s affidavit on behalf of defendant Jerome E. Treisman argues the law and was not accompanied by a memorandum of law. Counsel for defendant Ira N. Smith did not submit a memorandum of law to accompany his affidavit. Although the court does not condone these defects, it will consider the papers submitted because the issue drawn here impacts the public interest in preserving the secrecy of grand jury proceedings.
Motion papers have not been served on counsel for two of the remaining defendants: United States Secretarial Institute, Ltd. and Alfred P. Herbert. According to plaintiff, counsel representing the two defendants “has been disbarred. No substitution of counsel has been noticed with the Court. Further service on counsel has been discontinued since all mail is being returned.” The SEC’s decision to discontinue service commends itself neither to reason nor law. If a party is no longer reрresented by an attorney, as necessarily was the case here, service must be made on the party himself. See Fed.R.Civ.P. 5(a), (b); Vindigni v. Meyer,
. As of the present date, final judgments of permanent injunction have been issued against twenty-nine defendants including Galanis and Yamada. Two defendants have been dismissed pursuant to rule 41(a), Fed.R.Civ.P.
. According to the SEC, the boxes contain: transcripts of testimony given before the grand juries investigating the activities of Galanis and Yamada; original documents obtained by the Commission in the course of its investigation of Galanis and Yamada and subsequently transferred to the U.S. Attorney’s office; original documents obtained through subpoenas issued by the grand juries investigating Galanis and Yamada; materials pertaining to the criminal trials of those indicted by the grand juries; and privileged legal memoranda prepared by staff attorneys for the SEC and the U.S. Attorney.
. United States v. Moten,
. In assessing the SEC’s showing, the court takes into account that disclosure here is “not simply sought by a private person for use in a judicial proceeding” but rather by an independent agency acting to fulfill its mandate. So-botka, supra,
. The SEC identifies no specific transcripts, but assumes that certain of the remaining defеndants in this action have testified before grand juries investigating Galanis and Yamada, and that transcripts of their testimony are contained in the twelve boxes. The Commission’s request is not limited to defendants’ grand jury testimony, but extends to relevant testimony given by other unidentified witnesses who appeared before the grand juries.
. As stated supra, at no time was Green ever аppointed a special assistant United States Attorney, 28 U.S.C. § 515(a).
. During the time Green assisted the United States Attorney, rule 6(e) authorized disclosure of grand jury matters to “attorneys for the government”, who were defined under rule 54(c), Fed.R.Crim.P., as “the Attorney General, an authorized assistant of the Attorney General, a United States Attorney . . Applying a strict interpretation to rule 54(c), two courts held that attorneys for government agencies were not “attorneys for the government” and, therefore, were not entitled to receive grand jury documents, absent a court disclosure order, to further their agency’s investigations. In re Grand Jury Proceedings,
. Prior to 1977, this restriction was implicit in those decisions, see note 8 supra, authorizing disclosure to government personnel actively assisting, and under the supervision of, “attorneys for the government.” See Notes of Advisory Committee on Rules, 1977 Amendment to rule 6(e), Fed.R.Crim.P.
. After receipt of the boxes, the court will schedule a conference to discuss procedures whereby grand jury documents shall be made available to plaintiff and defendants for inspection and copying.