United States v. Procter & Gamble Company – Oral Argument – April 28, 1958 (Part 2)

Media for United States v. Procter & Gamble Company

Audio Transcription for Oral Argument – April 28, 1958 (Part 1) in United States v. Procter & Gamble Company

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Kenneth C. Royall:

— reached the point I think which I described the complexity, scope of the case, many factors that arose and shown that the bringing of this case and the preparation of it was founded primarily upon the grand jury proceedings including the grand jury transcript.

It was in the light of that background that the Court ordered the production of the grand jury proceedings.

Before doing so however, the Court sought to find more specific facts of — as to the use of these proceedings.

Those facts of course, being only known in great part by the Government, and he asked the — “Mr. McDowell, do you object to submitting a detailed affidavit” —

Where is that?

Kenneth C. Royall:

This is on page 139 of the record.

“Stating what use, if any, the plaintiff has made in the past to the grand jury transcript while preparing for the trial of this case, what use, if any, the plaintiff intends to make of the transcript during its future preparation and what use the plaintiff intends to make of the transcript during the trial?”

The answer to that question, which appears on page 197, was slightly less than revealing.

The answer was this, “I am afraid that I would be of little value because I had no connection with this case until last year, and will be unable to address myself to anything in that connection.”

That was followed by a letter, “Well, Mr. McDowell,” saying the question — this is on 360, “The question which you put to me at the hearing on December the 12 relating to the use by the government of the transcripts of the grand jury testimony have been given serious consideration within the Department of Justice.

I am instructed respectfully to inform you that we do not wish to add to the statement which I made at the hearing,” which statement was that Mr. McDowell knew nothing about it.

Now the — that was the situation when this came on to be considered.

Then the Court —

Felix Frankfurter:

When you — when you — may I interrupt Mr. Royall.

Kenneth C. Royall:

Yes, sir.

Felix Frankfurter:

When you deal with this problem, would you like to — in due course to say what response was made to the judge’s second question on page 139, the question that he addressed to defendant’s counsel, in due course.

I would like all of the defendant counsel tell me exactly the production there in your transcript (Inaudible) when you come to it, not — don’t say it now, in due course.

Kenneth C. Royall:

Well, sir, I would be glad to come back to that.

Felix Frankfurter:

In due course.

Kenneth C. Royall:

All right, sir.

Now, the — the Court specifically adverted in his order to the serious, complex and unique procedural of problems involved in this case.

And on the question of relevance, we call attention to this fact.

When the Government sought the grand jury documents and that was contested by the defendants, the only statement they made was that they are relevant or material to the issues of this case and are needed to the aid of the plaintiff in the preparation of it, and that’s the limit of their statement.

The grand jury transcripts were intertwined or became later and were part of the same investigation.

And this — these later queries got no additional information.

These documents and the transcript were jointly used, and I want to add this statement of the counsel, well, of the Court and then of the counsel.

The — the Court says the plaintiff has never contended the transcript is irrelevant to the issues in this case.

Indeed, such a contention would be disingenuous in view of the fact of the plaintiff’s use of the transcripts.

Now, that’s on the background, they wouldn’t tell him what the use was.

The plaintiff does not deny that it intends to use this evidence in the — in the future, if the occasion should arise and they were to place no limits on its use.

Kenneth C. Royall:

And they are the ones who knew.

The plaintiff’s counsel said, “I did not understand that there was any question whether the Government had the use of the grand jury transcripts.

William O. Douglas:

Where is this in the record?

Kenneth C. Royall:

That’s on page 274.

Upon this record, the Court has properly found that the plaintiff has used and will continue to use the transcript while preparing for the trial and he’s also found that the defendants will be aided hereby with such production.

He added this little more specifically.

“I would not grant these motions, if I thought they were useless or necessary or the defendants possessed — already possessed all the necessary information or could obtain it by any different remedy.”

And finally, he concluded that clearly, the ends of justice will be attained by plaintiff’s disclosure of the grand jury transcript — the grand jury testimony and the defendants have shown good cause for the production.

Now, further in that connection, the — the Court before this judgment was — this order of production was signed, sought to get from the Government any suggestions they might have as to the limitation, restriction, narrowing of the order of production but with no success.

Felix Frankfurter:

Where is that in the record?

Kenneth C. Royall:

That appears on transcript 309-10 and on 314.

I think those are the two pages.

He invited them to submit a form of order and he said this, “Because it might be interesting to see what kind of order you would submit, you apparently don’t like the one the defendants have submitted because you think it’s too sweeping.

Now, let’s see what you would submit.”

The reply was, “We felt it unnecessary to cross that bridge before we came to it.

Well the bridge was right in front of it.”

And then he said, “Again, let’s see what kind — what kind of order the Government is going to submit.”

The Government did not offer an order, did not suggest a change in the form of order, but on the contrary, consented to the form of the production order.

That appears on pages — page 262 to 263.

Now, the decision of the Court in ordering this production was not a general and sweeping decision applicable to all types of cases, it was made on the facts of this case.

And among other things he said this, “I don’t want to make a burdensome big case more bothersome for anybody.

It is bad enough as its best.

When I wrote this opinion, I had one type of litigation in mind.

I was only judging the facts of this case.”

You’ll find that on 307-10 and 303.

Felix Frankfurter:

This colloquy took place after the opinion that — that Judge —

Kenneth C. Royall:

This I think, was said on the —

Felix Frankfurter:

After —

Kenneth C. Royall:

— motion to rehear —

Felix Frankfurter:

All right.

Kenneth C. Royall:

— perhaps.

Felix Frankfurter:

But he — the opinion before this is the one on — the Judge Modarelli’s opinion and there was — I don’t know what the day was, the one that’s in page 11 of the Government’s jurisdictional statement, is that right?

I think it is.

Kenneth C. Royall:

I’ll have to read that if this already were here.

Now, I will — I think the question before this Court on the part of production, is — to me seems a simple one and that is whether within the discretion of the District Court he can determine what information is relevant, needed and appropriate for the defendants’ preparation of a case.

The burden of showing an abuse of trust — of discretion is on the Government.

I’ll give you the background, his efforts to get information which he could not get and having before him only the fact of the statement, admitted statement that they used as transcript, to draw the complaint and to prepare for the case and they failed to give him any more definite information.

It’s been suggested that some of these witnesses were witnesses of the defendants.

The defendants particularly in this type of case wouldn’t have much allowed talking to competitors who had charged these other defendants.

The other witnesses they don’t know about.

It would be impossible for them to get a sufficient knowledge to equal the knowledge which the Government had and stated it had and use this as the basis for the entire action.

The — another feature of this case is this.

If with — if with a judge who’s been from the case since it started and with the knowledge and full statement he made of his efforts to get particular information, if his to be overruled then the effect is merely, to transfer the burden of administration of these big cases to a higher court.

He must be left with that and your remember Judge Friedman’s report, which ties in with just the thought I’m giving you.

Now, the other question I want to make is the question of mutuality.

We — the defendants — the — the plaintiff has all the information he needs from this transcripts.

I will bring the suit of an interrogatories, depositions in the case and to determine the witnesses, the type of examination with or without that information.

And the Court said, the Court concludes this is the plaintiff has used in the transcript containing relevant information, the ends of justice require the Court to order the plaintiff to produce and permit the inspection and copying of the transcripts, equal use of transcripts by defendants, will give them the same knowledge and so forth that the Government has.

The — it reminds me which — of a citation which I know has been said many times to this Court, this question of mutuality, when the Government becomes a moving party and levels the great powers against the citizens.

It should be held with the same standards of fair dealing, as we prescribe for other legal contest, to let the Court — let the Government adopt such lesser ones, as suits the convenience of his officers, is to start down the totalitarian path and that’s the opinion of one of your members.

The — the Government is seeking to convert the grand jury proceedings, not into the shield, it was proposed to be, but into a sword to use against defendants in civil actions.

That’s what they are — that’s — that’s the result of at their action, all that contentions in this case.

Do you — do you — is your position — go so far as to say that if it appears that a civil antitrust case has been the subject of the grand jury proceedings, then without more, the defendants should be entitled to see the minutes.

Kenneth C. Royall:

If I had to answer that question, I might say yes, but that is not this case.

We do not have to rest on that board of principle but, of course, here we had a situation that the Government used it principally, for bringing their case, preparing their case and intended to use it.

But you — you got almost that situation it seems to me on this rather marvelous record because the judge I take it didn’t look at the grand jury minutes, you’re in no position obviously to say what was in them.

The Government refused to say what was in them.

So, it seems to me it almost comes down to be brought on a framework as I’ve indicated.

Kenneth C. Royall:

Well I say — I would say clearly on this case, they’re entitled to them on the Board principle, perhaps.

But certainly, when you add to that, first the use that the Government has made of use of them and the boldness in which they stated, and the breadth on which they stated and add to that the unsuccessful efforts to the Court, to get any particularization out them or to suggest any other means of solution.

Felix Frankfurter:

But Mr. Royall, you’re not — you’re not suggesting or arguing that this would — this was simply because the Government has these minutes, you as an abstract proposition, even Steven are entitled to that.

Kenneth C. Royall:

No.–

Felix Frankfurter:

You must have some reason?

Kenneth C. Royall:

We must have the reason —

Felix Frankfurter:

Now, what is the reason that appears from the record or argumentatively from what you’re about to tell us?

Kenneth C. Royall:

Well, I think the reason I’ve stated before but the reasons are these.

That the Government uses to prepare the complaint.

They used it in their discovery efforts.

They used it in whatever questions they asked by deposition or any other way.

They are — say they will use it in any other way that comes along, perhaps, in — during the trial, they would had to get specific permission of the Court.

But that’s not questioned here.

The question is the proprietary use of it.

They made a broad use.

They have not enlightened the Court and they are the only ones that could enlighten the Court.

Felix Frankfurter:

Now, suppose you — suppose you’ve learned that the Government in preparation of a civil antitrust suit, call in an eminent lawyer who specializes with all sorts of views that other people haven’t got and advised the Government, and submitted an important — to the Government an important document indicating the way in which they should shape up the litigation.

I don’t suppose you would, on knowledge of that, assume it was made public, assume the Government says, “We acted in this case, we called in a special counsel, John Smith, who has given us the basis of” — you wouldn’t say, that because the Government has this memorandum, you’re entitled to get it, wouldn’t you?

Kenneth C. Royall:

No, sir because that comes —

Felix Frankfurter:

What’s the difference?

Kenneth C. Royall:

That comes in the — in the professional privilege but this case doesn’t involve that.

This is a record of the Court and not a private document of the Department of Justice which they got in the manner that you described in your illustration.

Supposing the Government had call in all of these witnesses and examined them, the antitrust division office is acceptable.

Did you get all the statements?

Suppose it hadn’t been a grand jury, you had it transferred to — in any (Voice Overlap) —

Kenneth C. Royall:

Of course you’ve got — you got cases on that and I think that that would come probably within the professional privilege, perhaps.

But this — this would not fall within that category at all.

Now, the last thing I want to say is —

William J. Brennan, Jr.:

Mr. Royall, do you concede that what the Government used it for — the Government was privileged to use it for?

Kenneth C. Royall:

They had — they a right to use it for.

There’s no question about that.

That’s not involved in this case.

William J. Brennan, Jr.:

Well now, that — that being so, then don’t you have to show a special justification aside from their exercise of the privilege?

Kenneth C. Royall:

No, sir.

William J. Brennan, Jr.:

(Voice Overlap)

Kenneth C. Royall:

I don’t — I — the privilege would not be sufficient, but the exercise of the privilege in the preparation for a civil case and that being the only evidence we got of it.

And they refusing to answer other question as to the use, it’s the only thing we can rely otherwise we’ll be barred completely in this type of situation.

Felix Frankfurter:

And you’re not suggesting, at least I haven’t heard yet, that the claim is based on the fact or the belief, justifiable belief that the grand jury proceedings were brought in order to elicit this information with a view to the subsequent use of it, in a civil suit.

That is not part of the —

Kenneth C. Royall:

If the Court would ask me my opinion, I would answer it one way but I don’t think it’s proper for me to do so —

Felix Frankfurter:

No, no.

Kenneth C. Royall:

— but I will say this —

Felix Frankfurter:

(Voice Overlap)

— that’s the problem —

Kenneth C. Royall:

I will say if that were the issue in this case.

I believe in a court reading this record would assume that was the sole purpose.

Felix Frankfurter:

But I was wondering what the legal (Voice Overlap) —

Kenneth C. Royall:

Well, there no — we are not dependent on that.

Felix Frankfurter:

Yes, I understand that, but — but assume that one can — is concerned with the — with the potentialities of the use of a grand jury minutes which is a factor that, at least in my mind, is relevant to this problem.

There’s an allegation to this problem namely, that in as much as the Government has the facilities of a grand jury and therefore — and therefore, at least has available if used by way of preparation for a forth coming civil suit, that that is an element in the situation entitling the defendant, with the civil suit to get the knowledge.

Kenneth C. Royall:

Well, sir, I — I think these questions are in reversing are much more restrictive in a limited situation than is presented in this case and while I’m interested in the discussion of those, I think I must confine it to the — in touching the ends of the facts of this case clearly, beyond any question, we are entitled of those to get a fair treatment.

Now, I don’t —

Hugo L. Black:

Supposed you had precisely the — I’m following on Mr. Justice Harlan’s question, I didn’t quite understand you.

Suppose you had precisely the same facts to view it — except instead of a grand jury witness’s testimony, the F.B.I. had taken necessity and we have all these 50 witnesses or whatever they are and it was alleged that the Government had used those statements in preparing a case going up (Inaudible)

Kenneth C. Royall:

Well, sir, that might raise a question.

I — I’m not one to pass on the F.B.I.

[Laugh] case —

Hugo L. Black:

Well, I don’t mean on what — I don’t mean on account of privilege because —

Kenneth C. Royall:

Yes.

Well —

Hugo L. Black:

Privilege here.

Kenneth C. Royall:

Well, privilege is a point.

Kenneth C. Royall:

The privilege is a point in the question as I understood it to be asked.

The — but this is a judicial process which is different from any administrative process and there are distinctions between the two.

Tom C. Clark:

When the F.B.I. reports in (Inaudible) was an issue here?

Kenneth C. Royall:

What is that, sir?

Tom C. Clark:

Are you familiar with (Inaudible), the case —

Kenneth C. Royall:

Yes, sir.

I’m very — I’m very familiar and that — that is not a case of — affects this case at all because that is the question of not of a public document, judicial document.

Tom C. Clark:

I thought there, this Court dismissed the action because it definitely not produced the F.B.I. reports?

Kenneth C. Royall:

Well, sir, we — I — I’m not passing on the F.B.I. reports.

I say they are not involved in this case and they have a distinction.

That is a — an executive action.

This is a — a judicial process in the courts.

Now, may I say two things and without any argument.

The first is, I think, it’s perfectly apparent that the taking of depositions could not supply particularly, with the lapse of memory and the length of time involved could not supply what the sworn grand jury testimony could.

And the second thing I want to say, is that the — the type of case, which is somewhat repetitive, the type of case involved here does not really raise a question of — of violating secrecy.

There is no absolute secrecy of grand jury proceeding.

I could list you and I listed in my brief on there many ways in which they are known and the courts have decided, and we cite their authorities, that after the grand jury has been discharged, that these — this secrecy need not necessarily prevail.

And also, I point out there, the various methods in which with all propriety under the law that they, the grand jury proceedings can be known to the public and that’s all I care for to say, at least.

Earl Warren:

Mr. Fortas.

Abe Fortas:

Mr. Chief Justice may it please the Court.

In the few minutes that I have, I should like to address myself to very briefly, to a summary of the jurisdictional or administrative position of this case as I see it.

Then, I should like to come back for a moment to a question, Mr. Justice Harlan asked with respect to our position, as to the scope of the decision which we are requesting of the Court here.

Now, this dismissal order that was entered by the court below on the motion of the Government was a voluntary order.

It was voluntary, not merely in the technical sense that the Government made the motion that induced the dismissal order.

It was a voluntary order in a real sense.

There was no reason whatever, why the Government had to see dismissal of this case.

Dismissal was not a necessary or an inevitable consequence of the production order, number one.

Number two, dismissal was not the only way that the Government could get a review of the very substantial and important question that was presented, by the underlying production order.

Felix Frankfurter:

I could feel that the Court’s voluntary — is — as two aspects, in relation to this one.

I go along way with you in saying that the Government agreed to a dismissal if the order of production should be sustained.

Felix Frankfurter:

That it was not necessary for them to ascent to a dismissal in case that Modarelli’s order was the proper order.

But I think another question is whether they voluntarily agree to the whole process including the order of production.

Abe Fortas:

Mr. Justice — Mr. Justice if you’ll give me just a moment.

I want to explain quite specifically, the sense in which I’m using the word “voluntary”.

First, as a matter of background, the Government as a general lawyer has explained.

The Government had no time, although invited by the Court on several occasions, submitted any suggestions or counter suggestions as to the scope of the order.

They had no time offered to supply some recent testimony of the witnesses.

They have no time suggested that they give the defendants some of the testimony and not all of the testimony.

There was no suggestion as the record shows at 213, at any time, that any of this testimony was not relevant.

Now, that’s the background.

The immediate point with respect to the voluntary character of the Government’s action here is this.

Under Rule 37, the trial court has available to it a number of sanctions and remedies in the event of refusal to comply with a production order.

I respectfully say to you, that upon a reading of Judge Modarelli’s opinions in this case, it is quite reasonable to expect that if the Government had allowed this matter to take its natural course without precipitating this test case, if they had allowed this matter to take its natural course, Judge Modarelli might very well have made the order provided for by Rule 37.

For example, to impound the grand jury transcript — transcripts to forbid the Government from any further use of that grand jury transcript but the Government didn’t wait for that.

They had a lot of trouble on this issue in a great many courts throughout the country and they wanted to precipitate, this is my surmise, a test of this question quite understandably.

And so, they adopted the course of moving for a dismissal —

Felix Frankfurter:

I would hold then —

Abe Fortas:

— a refusal to produce.

Felix Frankfurter:

— as a present advice, I would hold the Government to the consequences of their actions provided the judge’s order is valid.

Abe Fortas:

Well in my —

Felix Frankfurter:

Speaking of myself —

Abe Fortas:

Yes, Your Honor.

Felix Frankfurter:

They had two different things.

Abe Fortas:

In my opinion —

Felix Frankfurter:

If the Government chooses to test it this way, they then did consent to this disposition if they should be wrong.

But that doesn’t mean that they had assented to, the order of production.

Abe Fortas:

Yes, sir.

I’m not saying they assented to the order of production.

What I am saying, Mr. Justice Frankfurter, to use language that I believe appears in your opinion in Calloway is that the Government cannot by this device, so by voluntary dismissal, asked this Court to review a question which incidentally, passed the path of a litigation and that is exactly what happened here.

Now, they had an alternative, the obvious alternative was to do what they did in Bowman Dairy and which Mr. Justice Burton wrote the opinion.

Abe Fortas:

It is — that they say it would have been unseemly for the Attorney General to subject himself to a contempt order.

On the first place, the Attorney General doesn’t do it, he gets one of his boys to do it just as he did in Bowman Dairy.

A contempt order could have been entered here against the Government.

An appeal could have been had from that contempt order.

Now, if the Court please, the practical consequences of that distinction are important, it is not merely a technicality.

If the Government had pursued the contempt route, the litigation could have proceeded.

Meaning, that this is been a year and a half since he entered that order to this day.

Meanwhile, the trial judge, I’m sorry to say has died, witnesses have disappeared, documents have been dispersed and memories including the memory of counsel as to what the merits of this case is about have become vaguer.

And the Government had the alternative in the first place they had alternatives other than the order of dismissal, such as are the impounding of the documents.

And in the second place, they had all alternatives to get the question before this Court, the obvious one being contempt, apart from the extraordinary writ.

And I say that to my mind, this is a clear case of the Government endeavoring to get a test before this Court without any warrant in law.

Now, very briefly, on the merits of this case, this underlying order is justified in my opinion and here I may have a little difference with my brother, general lawyer.

It is justified in this case because of the administrative considerations in a big case.

Your Honors will recall that the Government does not claim secrecy.

They say we can use the grand jury transcript to prepare the complaint.

We can use it to impeach the witnesses.

They used it 90 times in the Socony-Vacuum case.

They say that at the trial we’ll be able to get it and more than that, they say we can get all this material by depositions but what do they say we cannot do and that the trial judge cannot do.

They say that the trial judge after five weary years of litigation and the Government hadn’t completed its discovery — we have not begun ours.

The prospect of another decade of litigation and they say it’s an abuse of discretion for the trial judge to enter an order, an administrative order if you please, allowing us access to this transcript.

Now, I submit to Your Honors that if there were parts of this transcript that we should not have seen and I can readily understand that there might be in some grand jury investigations.

I submit to you that all the Government had to do was to go to Judge Modarelli and say, “Judge Modarelli please examine the transcript from pages 1000 to 2000 and see if you don’t agree with us that the defendant shouldn’t get that,” but that isn’t what they’re interested in.

They were interested in a test of the basic question.

I’m not criticizing the very able and dedicated lawyers who tried this case.

But I submit to you that that is what this case is about.

Now, Mr. Justice Harlan, my — I do not believe that in any case where a civil case has been preceded by a grand jury investigation, the defendants were automatically entitled to the transcript, by no means.

I think that there has to be a showing.

First, that the Government has used, is using and proposes to use the transcript and second, and of basic importance, there has to be a real and substantial showing, that the transcript — that the furnishing of the transcript for an investigation for examination by the defendants will serve a very — very important purpose as it would here.

Here there’s no question about it.

It would have served it would have saved at least a year probably, two years.

Abe Fortas:

27 living witnesses one of them had died.

Just imagine all these lawyers here taking the depositions of each one of those witnesses scattered all over the country and how long that would take and that is the course that the Government here requires and — and it was to avoid that, in the setting of this gargantuan case as it truly is and was that Judge Modarelli exercised his discretionary power and said, “You may have the transcript,” even though he invited the Government over and over again to submit limitations.

I — and it’s perfectly apparent that if they had — that if they — this case had taken its normal course as contemplated by law, and that the Government could have obtained a narrowing down of this order.

That’s the way law suits are.

And finally, we know if the Court please, there are many cases that come up, many interlocutory and preliminary orders had come up in the course of litigation which seem tremendously important and the rules of this court, the appellant rules, are based upon a very sensible proposition — are based upon the very sensible proposition that a great many of those offenses get washed out in a force of litigation, they don’t prove to be mortal injuries.

And the case goes on and its tried, one side wins, one side loses and 1001 questions that might have been appealed are washed out in that process.

Felix Frankfurter:

Before you sit down, I just want to ask you one short question, just calls for a short answer.

You indicated that if this case had to trial, the Government, counsel for the Government would have still in his hand stenographic minutes and ask witnesses by way of impeachment reading from the stenographic method?

That’s that what you said is about?

Abe Fortas:

I believe that to be the case.

Felix Frankfurter:

Now, what is there in the record it indicates, that as a matter of Court that was to be expected?

Abe Fortas:

Your honor will recall that records have been previously pointed out, that the Government refused to answer that specifically.

Felix Frankfurter:

Yes.

Abe Fortas:

But in a subsequent argument, the very able Mr. McDowell, the counsel for the Government did say that we have used and —

Felix Frankfurter:

Will you —

Abe Fortas:

— we hold —

Felix Frankfurter:

— but I mean more specifically.

What I want to know is what is there in this record that can lead me to have solid basis for saying, the Government itself would have in open court used those stenographic minutes?

Abe Fortas:

There is nothing in this record.

There is in the Socony-Vacuum case and decided by this Court a precedent, where the Government used it 90 times as opinion in that case recites.

But there was no specification, although Judge Modarelli attempted to obtain them and the Government refused to specify just exactly what they intended to do.

Felix Frankfurter:

And certainly, there is no authority.

Certainly, of this Court which would prevent the duty of that by the Government have this case go on to a trial.

Abe Fortas:

That is certainly true, Your Honor.

Thank you.

Earl Warren:

Mr. Bicks.

Robert A. Bicks:

Mr. Justice Frankfurter, it’s true that there is no authority that would prevent such use by the Government but it’s equally true, that it would be within the discretion of the trial court that that time to turn over those portions to the defendant.

Felix Frankfurter:

Or with the defense of this order that Modarelli’s order thought to be sustained on the ground that the next charge was a discretion, isn’t that true?

Robert A. Bicks:

That that grant —

Felix Frankfurter:

That this order, was an exercise of discretion by Judge Modarelli in the conduct of this litigation.

Robert A. Bicks:

I’d like to, if I may to meet one of Mr. Fortas’ argument directly.

The gist of it is that matters of administrative convenience, expedition and the handling of a big case justify the order of the law.

Initially, it may well be subject to challenge as to just how much the blanket turn over the grand jury transcripts would expedite the case.

Indeed, Government counsel asked that argument.

Well, if you had the transcript would that mean, you wouldn’t take deposition and response would instantly be, no.

But even assuming, this would expedite the handling of the case is that a full answer.

Must we not proceed further and say is it worth it in terms of what this does to the traditional function of a grand jury.

The essential position of the Government is that it must be, if a grand jury minutes are to be opened up in this wholesale fashion on the account of showing and I — my own view is Mr. Justice Harlan, correctly characterized as the sort of showing that could be made not only in every antitrust case but indeed in every complex civil case that follows the grand jury.

If consideration is —

And it’s also true however, that in recognizing the traditional secrecy of grand jury proceedings, that the Government is in that position in this cases where they examine an important witness, they are taking before the grand jury for very good reasons.

They again under oath and he know and you know right from the minute that you do that, but of course you’re going to call it so at the trial.

And this secrecy of the grand jury minutes in the context of these antitrust cases in preparation of civil suits is a wholly different proposition to me than what it is in the case of an ordinary criminal proceeding.

Robert A. Bicks:

My I respond to your point about, he knows he’ll be called to trial initially, three out of four of every one of the Government civil cases never reached trial.

So, in three of the four cases, he has no reason to believe it’s a total trial.

Charles E. Whittaker:

Did they say, they do not reach the trial resulting in consented reasoning and they have actually instituted this civil case?

Robert A. Bicks:

That is true.

Yes, sir.

But there is no fear.

There is no likely, but of exposure of particular witness’s cases in three of the four civil cases.

What kind of showing do you — would you conceive the defendants here should have made in order to overcome the factor of secrecy?

Robert A. Bicks:

Well, I would have indicated precisely that it is not the Government’s burden to point out particular portions of the transcripts that should not be shown to the Government — to the defendant but rather it’s the defendant’s burden to make out good cause for disclosure on a particular case —

How do they know it’s of the transcript?

Robert A. Bicks:

I would — there are two examples that come to mind, of where I think a showing a good cause might have been made here, even if an advance for trial.

First, one of the 28 witnesses had died between the testimony of grand jury in court.

There is no effort to distinguish the demand that his testimony however, from all the others.

If an addition to his death, it could have been shown exactly that he was likely to have been in a position to speak with unique insight about facts relevant to the pending civil proceeding.

On the basis of that sort of showing, I think, the Court after inspection of his testimony by — by the Court determine if in fact before on pending civil proceeding might well, have been justified in pointing the defendant had shown good cause within the meaning of Rule 34.

Another instance which, I think, would make out a showing of good cause is the example I used previously of a witness who could not recollect at the deposition stage whether or not he had done a particular act or attended the meeting, but did recollect the deposition stage that he recalled, whether or not he had when he testified before the grand jury.

There to, assuming external evidence showed that that witness was likely to be in a position to speak with some insight as to the facts that occurred, the district judge might be warranted in finding good cause.

For the turn over of a particular better transcript but not for the blanket turnover of the whole.

Robert A. Bicks:

And again really, our position is much has been made of the fact that the Government never asserted any limitations on the order, never attempted to mold the order to what it thought were appropriate limitations.

But really, that wasn’t our role at that point.

It’s not the role of the Government to call out of the transcript those portions that should not be disclosed.

Instead it’s the role of defendants to prove good cause, that particular portion should be.

Felix Frankfurter:

But you did rather take an absolute — I mean, the Government took an absolute disposition and I come back in (Inaudible) case, the Government just took a position, “We’re not going to help you Judge Modarelli, you’ve been bothered by this problem, you’re concerned with the years that have passed.

This is of the nature abstractly considered a scandalous thing that we’re here, six years after this business started,” discussing whether some document should have been produced.

If that is an indictment of the administration of justice, I don’t know what is.

Robert A. Bicks:

The essence of our position is that it really sounds strong and particularized showing it’s necessary.

I’ve tried to indicate the sort of showing that I think would have met that test in this case, pretrial.

The — the general and conclusory allegations for good cause that were made would suffice to warrant production of grand jury transcripts and most every complex civil case.

Charles E. Whittaker:

As I understand the Rule 34 does not limit itself to the injunction or showing that the document does contain relevant inference but is it not (Inaudible) or that may lead thereto, the Rule 34?

Robert A. Bicks:

I would think so.

Charles E. Whittaker:

Is there —

Robert A. Bicks:

Yes.

Charles E. Whittaker:

It’s in Rule —

Robert A. Bicks:

I think so.

I — I’d like in closing to touch on a question Mr. Justice Frankfurter asked —

Felix Frankfurter:

Yes.

Robert A. Bicks:

At Mr. Royall.

You asked did Mr. Royall suspicion or conclude that the grand jury was in fact used primarily in prepare the civil litigation, either —

Felix Frankfurter:

I didn’t mean to probe the secret mind, I said he wasn’t contending, as I understood him, he wasn’t saying.

He claim it’s because in fact that he —

Robert A. Bicks:

Well, he did below — he did below.

Felix Frankfurter:

(Inaudible) this business of constant digging out that lawyers said, although lawyers say a lot of things.

Robert A. Bicks:

The court below considered this question at some length and said defendant asserts that the subpoena duces tecum was issued in bad faith and that plaintiff never really sought an indictment but lacking blocking the subpoena power.

It used the criminal investigation as a pretense for obtaining documents on which to base a civil case.

The assertion has not been substantiated.