United States v. Procter & Gamble Company

PETITIONER:United States
RESPONDENT:Procter & Gamble Company
LOCATION:Hazlehurst Manufacturing Company

DOCKET NO.: 51
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 356 US 677 (1958)
ARGUED: Apr 28, 1958
DECIDED: Jun 02, 1958

Facts of the case

Question

  • Oral Argument – April 28, 1958 (Part 2)
  • Audio Transcription for Oral Argument – April 28, 1958 (Part 2) in United States v. Procter & Gamble Company

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

    Earl Warren:

    United States of America, Appellant, versus The Procter and Gamble Company, et al.

    Mr. Bicks.

    Robert A. Bicks:

    Mr. Chief Justice, may it please the Court.

    The United States appealed from the New Jersey District Court’s dismissal of its antitrust civil complaint.

    The complaint had alleged violations of the Sherman Act, Sections 1 and 2 and named these defendants three major soap concern, Proctor and Gamble, Colgate, and Lever Brothers, as well as the trade association to which all three belong.

    The District Court’s dismissal in turn, stamped on the fact that the United States did not turn over to the civil defendants the complete grand jury transcript of all testimony.

    Whether or not relevant to the civil case, by all witnesses, whether or not to appear in the civil case, who had testified before a grand jury conducting criminal investigation into the same soap and synthetic detergent industry.

    The prime issue on —

    Earl Warren:

    Do you make — do you make a distinction between the — the request for the entire transcript and just a part of it?

    I noticed you emphasized that the entire transcript.

    Now, would — would the issue be same if they — if they asked for less?

    Robert A. Bicks:

    Yes, we do make a decision, Mr. Chief Justice.

    Earl Warren:

    Oh, that’s all that you’ve asked.

    Robert A. Bicks:

    The reason we do is that our basic position is that in each particular case, a demand to pierce if you will or cast aside the traditional secrecy of the grand jury.

    I must depend in each instance on a delicate balance between on the one hand, those policy of the grand jury secrecy designed to protect the integrity of the grand jury and on the other, the need of a particular civil defendant for a particularly be a grand jury testimony for a particular purpose.

    Felix Frankfurter:

    You also emphasized whether relevant or not.

    You said that twice, is that initially here, too?

    Robert A. Bicks:

    I would think it is, Mr. Justice Frankfurter.

    Felix Frankfurter:

    Would you come to that in good time?

    Robert A. Bicks:

    I will.

    Felix Frankfurter:

    In other words, I infer from that, that you — in part of this, the context is that what they asked was not relevant and that the Court — that disclosure must be made whether relevant or not to this civil litigation, is that right?

    Robert A. Bicks:

    Yes, sir, it is.

    Felix Frankfurter:

    All right.

    Robert A. Bicks:

    The issue on this appeal then is what kind of showing of good cause within the meaning of Rule 34, must a civil defendant make out to warrant blanket production of the entire transcript of a grand jury that have been discharged without returning an indictment, some two-and-half weeks before the civil complaint was filed —

    Felix Frankfurter:

    May I — may I break (Inaudible) interfering with your argument.

    Does the record which I have not studied, does the record make clear that there was a contest below on this issue, that they’re asking for something that wasn’t relevant to the issues in this civil suit and the Court gave a direction on the assumption.

    It doesn’t matter whether what they ask is relevant or not?

    Robert A. Bicks:

    That issue was not raised below, Mr. Chief — Mr. Justice Frankfurter.

    The court below assumed that because the Government was concededly using the grand jury transcripts and had used it to prepare its civil case, that a substantial portion of the transcript at least would be useful to the fact —

    Felix Frankfurter:

    Was there any suggestion by the Government below that if a showing is made or reasonable basis is laid for inferring relevance that then disclosure would be made because on the basis of what you said it seems to me where it may well be heading into an abstract argument here?

    Robert A. Bicks:

    No.

    The issue of relevance was not primarily raised below, Mr. Justice Frankfurter.

    Felix Frankfurter:

    All right.

    Robert A. Bicks:

    With the Court’s permission, I’ll move directly to the factual context which gives rise to this paramount issue and thereafter trade issues raised by defendant’s motion to dismiss.

    From May 1951 to November 1952, a criminal grand jury sat in Newark, New Jersey, as the Antitrust Division trial attorney charged with presenting evidence to that grand jury, put it in the record before you at page 55.

    He was instructed to and did carry out investigation to determine whether or not there’s been criminal violation.

    In the course of this task, the grand jury heard some 28 witnesses.

    Of these 28 witnesses, 18 were present or former employees of those who became defendants in the later civil suit.

    Beyond those 18 witnesses, an additional 6 witnesses represented concerns presumably from whom defendants bought or to whom they sold.

    The grand jury completed its deliberations in late 1952.

    It was discharged on November 25th, 1952 without returning any indictment.

    Did they both — did they both honor an indictment?

    Robert A. Bicks:

    The record does not show whether or not they voted or whether —

    The reason for my question is, is this a case where the Government is using the grand jury simply as an aid to a civil suit or is it a case where there was a serious purpose in presenting it to the grand jury of getting an indictment?

    Robert A. Bicks:

    Mr. Justice Harlan, the uniform purpose of the Antitrust Division — policy of the Antitrust Division is not to convene a grand jury unless criminal prosecution is likely.

    In this particular case, that’s —

    Felix Frankfurter:

    As of what theory if you say that (Voice Overlap) —

    It wasn’t always the policy.

    Felix Frankfurter:

    I’ve had some experience with that too and I wish I could say that that was a uniform practice when I knew about it.

    Robert A. Bicks:

    So long as —

    Felix Frankfurter:

    I’m — I’m thinking it would but if you tell me that’s the uniform practice, I just want to know what the period of time is.

    Robert A. Bicks:

    I have no direct knowledge of what the practice has been before 1953.

    Felix Frankfurter:

    All right.

    Earl Warren:

    I thought —

    Robert A. Bicks:

    And —

    Earl Warren:

    — there was some mention in one of the briefs that — that there was some admission on the part of the Government that the grand jury was used that time solely for — for the purpose of obtaining information for a civil suit.

    Am I incorrect in that?

    Robert A. Bicks:

    I believe you are, Mr. Chief Justice.

    Earl Warren:

    Why?

    Robert A. Bicks:

    The admission I referred to was a particular bit of testimony before a House Committee by Assistant Attorney General Barnes.

    Robert A. Bicks:

    Judge Barnes there stated that he felt free to proceed solely civilly on the basis of a grand jury investigation.

    If — provided if the grand jury was in fact convened in good faith to investigate a criminal violation.

    Earl Warren:

    Oh, I see.

    Robert A. Bicks:

    Some two-and-half weeks after —

    Felix Frankfurter:

    May I ask about Justice Harlan’s question.

    Is there — I didn’t get your answer.

    Is there a disclosure made whether there was on both during a proposal to indict, whether the U.S. attorney told the grand jury, the must to the basis for indictment and then of both returning not a two bid, but that’s made public now?

    Robert A. Bicks:

    That does not appear in the record, Mr. Justice Frankfurter.

    Felix Frankfurter:

    I don’t mean in the record but that is not made public known —

    Robert A. Bicks:

    I have endeavored to check with those who were supervising the then grand jury.

    I am informed that no indictment was recommended to the grand jury.

    I further —

    Felix Frankfurter:

    If we did, tell us the fact?

    I thought I — if one can say there was no indictment but — but is the basis of the blank objective fact that there was no indictment, if there was no indictment, that’s a fact.

    But I didn’t suppose that any disclosure is made that in fact the U.S. attorney recommended and in fact the grand jury turned down his recommendation, I didn’t suppose that, is it?

    Robert A. Bicks:

    I would think that would be a bit different from the statements where the integrity, if you will, of our use of a grand jury isn’t put at issue, that in fact no indictment was recommended.

    Some two-and-half weeks after the grand jury was discharged, the civil complaint at issue here was filed.

    As the first step after the civil complaint was filed, the civil defendants were offered the return in those grand jury documents which they’ve given to the grand jury.

    Felix Frankfurter:

    I didn’t mean to suggest lack of integrity, Mr. Bicks, all I meant to suggest is that something very different that you use the grand jury item in use.

    The Government uses the grand jury as a vehicle for ascertaining what facts were developed and then decide what to do about it, rather than having a strong reasonable conviction that there was a criminal proceeding.

    Integrity wasn’t in my mind.

    Robert A. Bicks:

    That I would rather put it in the adverse that there must be some reasonable judgment at the time a grand jury is authorized that criminal proceeding is likely.

    Felix Frankfurter:

    Well, I know —

    Robert A. Bicks:

    Once the grand jury is in good faith convened and properly conducted, then of course the United States feels free.

    Felix Frankfurter:

    But as to crimes not — as the matter is not Sherman Law, would that state have changed places, they well may have.

    Some — some public — something wrong happens, some external wrong and an investigation is made through the grand jury to find out what the basis of it is, that is true as to national banking — a bank — a national bank fails.

    I wouldn’t say to the question of integrity that if the U.S. attorney goes in and out of proceeding before the grand jury to find out what really took place.

    Robert A. Bicks:

    After the grand jury documents were offered to return the defendant then began to process a mutual discovery.

    The Government filed two discovery functions, emphasizing that discovery was to a be a two-way street, however, the Government turned over the defendants, all third party documents in the Government’s possession where third parties had consented.

    Beyond that, the United States supplied to defendant a comprehensive listing of additive statements of issues on the civil case.

    Robert A. Bicks:

    In the midst of this mutual discovery process, about two-and-half years — two years after the civil complaint has been filed, the defendant Proctor and Gamble moved for access to the transcripts of grand jury testimony.

    It was not until one year later, however, in late 1955 when the Government sought to take the deposition of a Proctor official who would testify before the grand jury, that Proctor pressed its motion for argument.

    At about the same time, defendants — the remaining defendants made like motions.

    The argument was heard on those motions in late 1955 and in April 1956, the Court rendered its opinion indicating that the Government would be required to turn over the entire transcripts of grand jury testimony.

    The basis for the Court’s opinion is summarized —

    Charles E. Whittaker:

    You say indicating?

    The — the record argued it to be — the transcripts to be surrendered within 30 days under (Voice Overlap) —

    Robert A. Bicks:

    He did not in April, Mr. Justice Whittaker.

    He did by order dated July 24.

    Charles E. Whittaker:

    (Inaudible)

    Robert A. Bicks:

    The basis for the Court’s conclusion is summarized in the last paragraph of its opinion found in the record before you at page 218.

    There, the Court stated that the Court concludes that since plaintiff is using the transcripts containing relevant information, the ends of justice require the Court to order plaintiff to produce and permit the inspection and copy by defendants of the transcript.

    Equal use of the transcripts by defendants will give them the fullest possible knowledge of the facts before trial.

    None of the reasons for the rule of secrecy apply.

    After denying the Government’s motion for reconsideration, the Court on August 21, 1956 ended its amended orders specifying that if the United States did not turn over the transcripts, the civil complaint would be dismissed.

    After checking to ascertain that the United States had not turned over the transcripts, the orders of dismissal that dated September 13th, 1956 were ended.

    It is from these orders of dismissal with the United States appeal.

    Hugo L. Black:

    What was the basis to that last order of the Court, was that on the motion by the Government?

    Robert A. Bicks:

    No, it was not, Mr. Justice Black.

    The orders of dismissal dated September 13th stemmed from the Government’s failure to turn over the grand jury trial.

    Hugo L. Black:

    But it — was that based on the order of August 16th?

    Robert A. Bicks:

    The sequence of the —

    Hugo L. Black:

    I’m asking because I note that there’s another issue raised by some.

    Robert A. Bicks:

    There is.

    Hugo L. Black:

    That the Government itself asked the Court to enter this particular judgment providing that the case would be dismissed if exhibits were not turned over and it was in response to this motion that the judgment from what you — from which you appeal would have it, is that right?

    Robert A. Bicks:

    Oh, that is that contention of defendant.

    I think that those contentions take on meaning after a whole statement of the grand jury issue.

    The essence of the Government’s position can be briefly summarized.

    Initially the opinion of the District Court requiring turn over rested on three ground.

    First, that the United States had been using and was using the grand jury transcript to prepare a civil case.

    Robert A. Bicks:

    Second, that it would be useful to the defendant to have the grand jury transcript to prepare their case.

    And third, traditional reasons for grand jury secrecy no longer apply.

    At the outset, let me make clear that there’s no question whether the United States was using transcripts to prepare a civil case.

    Indeed the attorney general is obliged once the grand jury has been lawfully convened and properly conducted to make use of evidence it adduces in the fullest performance of those public responsibilities Congress has placed upon it.

    Beyond that we have no reason to disagree that access to the transcripts would be one useful tool for defendants to prepare their case.

    Indeed, this would be likely be so in every complex civil case following a grand jury investigation.

    Our sole disagreement with the court below stems from our view that the basic integrity of grand jury process requires that with limited exception, secrecy surround that testimony given before even beyond the grand jury’s discharge.

    Charles E. Whittaker:

    And even in the case where no two bill was booked?

    Robert A. Bicks:

    Precisely, Mr. Justice Whittaker.

    From this it follows that each exception to the traditional rule of grand jury secrecy must be based on a delicate balance between on the one hand, the reasons underlying the rule of the grand jury secrecy and on the other, the need of a civil defendant for a particular bit of testimony for a particular purpose.

    This delicate balance, the court below does not deem it necessary to undertake.

    The Court concluded that there were no reason which had survived the grand jury’s life, which any longer support of the need for secrecy.

    Felix Frankfurter:

    But the injection now of the issue of relevance or not with the different complexion on the problem, doesn’t it?

    Robert A. Bicks:

    Some of it.

    The result was a blanket turnover order on a showing of good cause, no greater than that would be required for any routine document in the Government’s possession.

    The essence of the Government’s disagreement with the court below then is our view that due weight must be given to those policies underlying the need for grand jury secrecy, policies equally lofty too though sometimes apparently at odds with the broad disclosure design of the civil rule.

    Earl Warren:

    Do I understand, Mr. Bicks, that from your argument that the Government gave the defense a list of the witnesses who appeared before the grand jury, plus a summary of their testimony?

    Robert A. Bicks:

    Mr. Chief Justice, when defendants moved for access to grand jury transcripts at that time, they said, we have long known the names of most if not all the witnesses.

    Beyond that, at argument on the Government’s motion for reconsideration, the Government reiterated its offer to give defendants a list of all witness.

    In fact, it developed defendants had known the names of each witnesses.

    The Government did not offer to give summaries of the grand jury transcripts.

    Earl Warren:

    All right, I — I misunderstood you.

    Pardon me.

    Robert A. Bicks:

    The essence of the Government’s disagreement then that the court below failed to give due weight to the policies underlying the need for grand jury secrecy.

    As this Court stated in the United States v. Johnson, and reiterated only recently in the Costello case, entered role to the administration of federal criminal justice that the institution of the independent grand jury.

    Indispensable to the grand jury’s function, it follows that the ability to compel on travel disclosure by witnesses before it of all data within their knowledge.

    Such ability would be dissipated we urge, where witnesses to know their testimony would be disclosed even short of trial to those very person on whose witnesses economic existence depend.

    The call from this Court’s opinion in United States v. Johnson, intrusion into the indispensable secrecy of the grand jury as important for the protection of the innocent of the pursuit of the guilt would subvert the grand jury secrecy — would subvert the grand jury’s function by all sorts of devices which some state’s opinion could permit such as (Inaudible) inspection of grand jury minutes.

    From this involved that the Government’s position basically is that the basis of integrity in grand jury process requires that secrecy surround testimony, even after the grand jury’s discharge absent any but the strongest and most particularized sort of showing that basic justice requires to the contrary.

    That sort of showing for the Government’s view was not made here.

    Robert A. Bicks:

    Initially at the time motions were made for access to the grand jury minute, defendants conceded that they knew the names of most if not all the people that testified before the grand jury.

    Beyond that, the record is barren of any efforts by defendant to secure via deposition an alternative means to learning the facts within witnesses present knowledge to secure by alternative means such as deposition, relevant facts within grand jury witnesses, present knowledge was found.

    There was no effort that they tried the deposition route.

    In short, there’s no basis for concluding that whatever present recollection grand jury witnesses had as to facts relevant to the civil complaint could not have been secured by some process other than access to the grand jury transcript.

    Felix Frankfurter:

    Is it fair to say that the District Court, trying to explore the kind of use without disclosure, that the Government was making of the material before the grand jury and that the Government shut off access to that information to the Court.

    Is that a fair statement?

    Robert A. Bicks:

    I —

    Felix Frankfurter:

    I’m referring to the inquiry put to Mr. McDowell, printed on page 13 of your jurisdictional statement and the inability naturally, not from Mr. McDowell, not to answer the questions until he consulted with the — his superiors in the department and then standing path on non-disclosure.

    Robert A. Bicks:

    Mr. Justice Frankfurter, I — I had assumed there was no real question below as to whether the United States was using the transcript.

    Felix Frankfurter:

    No.

    But the judge asked some particular questions.

    I’m not saying that — the specifically address themselves to the defendants in this suit presented, “Will you set forth in detail why this will help you?”

    But he did try to open up an inquiry regarding the relation of the testimony before the grand jury to this civil suit and the Governor said — and the Government in effect said, we would answer your questions.

    We — we stand a path on the secrecy, is that right?

    Is that a fair statement?

    Robert A. Bicks:

    I believe it would be.

    Felix Frankfurter:

    Well, that — that’s what I meant by saying a little while ago, heading into a rather abstract issue here.

    And I have — and all my predisposition in your direction about the secrecy of the grand jury minute.

    But it is rather and have a such position that you are taking here.

    Robert A. Bicks:

    I don’t —

    Felix Frankfurter:

    In view of the inquiries that — that the District Judge sought to make.

    Even start off by saying, “You must make disclosure.”

    He wanted to find out what the relation between the grand jury proceedings and the present civil proceedings, and explore the kind of questions that had come from the bench.

    And the Government said, “Nothing to do with.”

    Robert A. Bicks:

    Well, that — that maybe a fair account of what happened below but I — I don’t think there’s really any question as to what the relation between the grand jury proceedings in the Government’s civil suit were.

    Both involved an investigation of antitrust violation in the same industry.

    I think it certainly is reasonable to conclude that much of the testimony before the grand jury would bear on issues that were relevant in a civil case.

    However, equally clearly, there’s no basis for concluding that all of it would, which was the sole reason I raised the point of relevance —

    Felix Frankfurter:

    (Voice Overlap)

    Robert A. Bicks:

    However —

    Felix Frankfurter:

    It seems to me important, you emphasized it and I respect that that they asked for all of it as though this were — give us all and the Government is knowing give it all and that’s an end of the business?

    That seems for me, if I may say so, an abstract in the question, once you admit that there are circumstances under which disclosure maybe compelled.

    Robert A. Bicks:

    We do.

    William J. Brennan, Jr.:

    Mr. Bicks, do I understand you to say that the issues in the civil proceeding were framed by the use of the Government of the information obtained before the grand jury?

    Robert A. Bicks:

    I would say that much of the information that formed the basis for the Government’s civil complaint was adduced for the grand jury.

    William J. Brennan, Jr.:

    Well, have you yet suggested why that use is not itself an intrusion upon the secrecy of the grand jury?

    Robert A. Bicks:

    I would say that there are — the issue of the Government’s use and an implied waiver by the Government of whatever by such use of grand jury secrecy may arise at two different concepts.

    First, at trial, when the Government gets the trial, if it does, will not much of what went on before the grand jury to be revealed.

    There are three answers to that contention.

    First, the great bulk of civil antitrust cases do not reach trial, roughly 75% are settled before trial.

    Second, even as to those cases that reach trial, a crucial element of prosecutor’s judgment is the balance between on the one hand, the need to call a particular witness to make a case.

    And on the other, the need to protect a particular witness from economic harm that may come to him by putting him on the stand.

    Third, even if the case is trialed and even if it becomes necessary to use a particular witness, then left in a very carefully exercised discretion of the Court at the expense to which that — particular witness’ grand jury testimony will be exposed.

    So Mr. Justice Brennan, I suggest that in practical terms, the use — the proceeding by the United States to trial or prosecution of the civil case does not in effect constitute a waiver or intrusion into the secrecy of grand jury —

    William J. Brennan, Jr.:

    Well, is that also another way of saying that until such time as the Government itself may use one of the witnesses before the grand jury at the trial, there cannot arise a question whether the Government has intruded upon the secrecy of the grand jury?

    Robert A. Bicks:

    It is not, Mr. Justice Brennan.

    William J. Brennan, Jr.:

    You say that it cannot arise?

    Robert A. Bicks:

    It can’t — no, I say it may arise —

    William J. Brennan, Jr.:

    I see.

    Robert A. Bicks:

    Because the Government also takes the position that situations at pretrial may arise, where a District Court may feel on the basis of a strong and particularized showing, that basic justice requires some intrusion into some portion of the grand jury transcript.

    William J. Brennan, Jr.:

    No.

    What I’m trying to get to is, when it is short of the actual calling of the stand by the Government or by a witness before the grand jury in support of the Government’s civil case.

    When is it that the Government admits if it does at all, that there is an intrusion by the Government into the secrecy of the grand jury?

    Robert A. Bicks:

    I would not — I was addressing myself to the — to a response to your question in terms of the fact that it does not inevitably follow that there will ever be an intrusion in the grand jury.

    William J. Brennan, Jr.:

    Well, I understand what you’ve been saying that — and as I understand it is that the question can’t possibly arise unless you’re going to use one of the witnesses before the grand jury.

    Am I correct in that?

    Robert A. Bicks:

    It is not, because there’s a situation short of trial where even though we’re not going to use the witness, where a Court might within the proper bounds of Rule 34, direct that part of a transcript be turned over.

    For example —

    William J. Brennan, Jr.:

    No.

    I’m not thinking of the situation at which the Court requires a Government to do something in respect to the grand jury minutes.

    William J. Brennan, Jr.:

    I’m trying to find out if the Government concedes that there can be on its part in the intrusion, into the secrecy.

    Robert A. Bicks:

    Oh, yes, Rule 6 (e) specifically provides that attorneys — attorneys in the Government maybe present in the course of grand jury proceedings.

    And the information there adduced, and the quote is, “Maybe made available to the attorneys for the Government, for the use in the performance of their duties.”

    Felix Frankfurter:

    But, Mr. Bicks, I don’t know — I’m a little confused.I don’t know why you don’t say shortly that the U.S. attorney, having been before the grand jury and actually having put witnesses due to grand jury and having listened to it all, what goes into his head isn’t an intrusion, just knowledge at his consummate in course of a duty.

    Isn’t that the simple end?

    Robert A. Bicks:

    It is.

    William J. Brennan, Jr.:

    Is that the answer then —

    Robert A. Bicks:

    Yes.

    William J. Brennan, Jr.:

    — that you’re giving?

    Charles E. Whittaker:

    (Inaudible)

    Robert A. Bicks:

    Oh, he might not.

    Charles E. Whittaker:

    (Inaudible)

    Robert A. Bicks:

    Well, Mr. Justice Whittaker, initially it’s a matter of discretion for the prosecutor presenting evidence before the grand jury as to whether or not he will take notes or have a stenographer present to take a transcript.

    Felix Frankfurter:

    It required a statute to allow a stenographer to get transcripts, it becomes transcripts.

    Robert A. Bicks:

    And as a matter of convenience and as used after the grand jury has been discharged, he may desire to have a transcript to refresh his memories of what happened before the grand jury.

    Charles E. Whittaker:

    (Inaudible)

    Robert A. Bicks:

    I was just attempting to explain, Mr. Justice Whittaker, why it would not be because the fact of Government use does not necessarily mean disclosure of what happened before the grand jury to anyone but those Government’s attorneys who were properly before the grand jury.

    William J. Brennan, Jr.:

    Well, you said does not necessarily, I thought perhaps you went further than that and said that there aren’t any circumstances in light of the rule under which the Government’s acquiring from the way it did, the information later used in support of the civil case could amount to an intrusion upon secrecy, are you saying that?

    Robert A. Bicks:

    Yes, I am.

    The sort of showing of good cause here made by defendants was almost entirely conclusory.

    As I’ve indicated they conceded they knew the names of most if not all of the witnesses and in fact the Government calls for the complete list of the witnesses.

    Beyond that, the record is barren of any effort to secure relevant information by deposition.

    And indeed, defendant Colgate conceded that they well could take deposition of all the grand jury witnesses whose names they knew.

    The Government’s position then that this is — that this sort of conclusory allegation cannot suffice to make out a showing of good cause.

    Felix Frankfurter:

    Could they — could they on deposition ask a witness what he said before the grand jury?

    Robert A. Bicks:

    I do not believe so, Mr. Justice —

    Felix Frankfurter:

    That you think that’s a dubious suggestion?

    Robert A. Bicks:

    I do not believe so.

    I think there are two sorts of areas that could be searched by deposition.

    First, all knowledge within the present like recollection of a deponent relevant to the civil case.

    Felix Frankfurter:

    An independent question?

    Robert A. Bicks:

    Yes.

    Felix Frankfurter:

    All right.

    Robert A. Bicks:

    I do not believe they could ask, however, or search via deposition from a deponent a blank question of tell me everything you told the grand jury.

    That’s — that’s really the (Voice Overlap) —

    Felix Frankfurter:

    I should hope not.

    Robert A. Bicks:

    The Government’s position is that allowing a blanket turn over of all grand jury transcripts based on the sort of showing required here would seriously debilitate the grand jury’s use in the wide area of commercial crimes that attacks antitrust, pure Food and Drug Act Administration.

    Where the same Act may give rise to both a criminal and civil proceeding.

    In the antitrust field for example, the Government uniquely depends on information in the hands of potential defendant.

    As this Court put it in Hale and Henkel, the combinations and conspiracies against which the Sherman Act provides and ordinarily can prove only by the testimony of parties thereto and the person of their offices or agents.

    So it was within this grand jury, 18 of the 28 witnesses were present were former employees, those who later became defendants in a civil suit.

    Our position is that the ability of the grand jury to compel these witness to speak their mind, to conjecture if you will, to come forth with that sort of evidence, which allay grand jury a body of laymen may find persuasive.

    Whether or not it’s evidence in the court of law, will be seriously challenged if those grand jury witnesses know.

    But on the basis of this sort of showing which can be made in any complex civil case, their testimony will be disclosed to those on whom their economic livelihood depend.

    In some, the essence of the Government’s position is that we take no flat position that in no civil case, either at trial or before trial, will a grand jury transcript or particular portions of it be made available to defendants.

    Instead in each instances, the trial court’s task is to balance on the one hand, the need for grand jury secrecy against on the other, the considerations of fairness involved in a particular civil defendant’s needs for a particular bit of grand jury testimony for a particular purpose.

    Except the deposition, isn’t fair.

    Robert A. Bicks:

    The case should be reversed, the — and the ruling of the trial court requiring turn over should be reversed, because it would face not on the sort of balancing process I suggest but integral to the decision below by its own terms.

    But as Justice Frankfurter just pointed out, the Sherman Act (Inaudible)

    Robert A. Bicks:

    The Government did not state below, Mr. Justice Harlan, that in no case, in no civil case would the antitrust would be — should the grand jury transcript be turned over, just as it does not so to state here.

    Hugo L. Black:

    Was there a motion made for a particular part of the grand jury testimony?

    Robert A. Bicks:

    I do not believe so.

    Such a motion really would follow the path that the Government suggest and that is to go ahead, go ahead by deposition.

    If for example, a man who have testified before the grand jury later on deposition said, “I can’t remember whether I was present at X meeting.”

    But does recall that he did remember at the time he testified before the grand jury.

    And if X meeting did bear closely on the issue to the civil case in such an instance where a deponent had forgotten between the two meeting, that might be an appropriate case for the District Court to consider whether he would permit the witness to refresh his recollection by a recourse to a particular bit of testimony.

    Charles E. Whittaker:

    (Inaudible)

    Robert A. Bicks:

    Ever made what showing?

    Charles E. Whittaker:

    A showing that this witness did remember of his grand jury (Inaudible) what he cannot now recall (Inaudible)

    Robert A. Bicks:

    Simply by asking the deponent the question, Mr. Justice Whittaker, “Were you present at X meeting?”

    Robert A. Bicks:

    The deponent would then reply, “I do not now recall whether I was present at X meeting.”

    The defendants would then respond, “Did you recall at the time you testified before the grand jury?”

    Charles E. Whittaker:

    I know that.

    Robert A. Bicks:

    And deponent might then reply, “I think I did.”

    Then it would be a —

    Charles E. Whittaker:

    (Inaudible) and he said, “No, I could not remember.”

    (Inaudible)

    Robert A. Bicks:

    Precisely.

    Charles E. Whittaker:

    And in the — in that (Inaudible)

    Robert A. Bicks:

    I wouldn’t think so.

    I think in the particular situation where we’ve been describing, Mr. Justice Whittaker, the District Court might well examine that portion of the transcript and see for himself whether deponent had in fact recollected a particular transaction before the grand jury.

    Well, that’s the essence of the Government’s position and that this basic balancing judgment must be made underneath for a particular bit of testimony, for a particular purpose and not, Mr. Justice Frankfurter, for the demand for a blanket transcript whether or not relevant to a particular purpose, which is why I emphasized the element of relevance.

    This balance was not undertaken below because the District Court stated why it fall, the incident in its opinion that its view not of the reasons for grand jury secrecy.

    William J. Brennan, Jr.:

    Oh, at what stage in the civil suit was this motion made?

    Robert A. Bicks:

    The motion was made in the midst of pretrial discovery, long before trial was imminent —

    William J. Brennan, Jr.:

    That is discovery by deposition?

    Robert A. Bicks:

    No, sir.

    Mr. Justice Brennan, the deposition had not yet began.

    The Government had filed two discovery motions, had turned over third party document and it was just — as the Government sought to take the deposition of one of Proctor and Gamble’s official, that the motion was brought on.

    Felix Frankfurter:

    How many years after the suit was instituted with this proceeding that you’ve just recounted to take place?

    Robert A. Bicks:

    The Proctor and Gamble motion, original motion for access to the grand jury transcript took place in September, I believe, of 1954.

    It was brought on argument after the Government sought to take Proctor —

    Felix Frankfurter:

    So, it was filed in — in early —

    Robert A. Bicks:

    No.

    Felix Frankfurter:

    — in — early 1953, is that right?

    Robert A. Bicks:

    In November 11, 1952.

    Felix Frankfurter:

    November?

    Robert A. Bicks:

    11th.

    We do — excuse me, December 11, 1952.

    Hugo L. Black:

    1952?

    Robert A. Bicks:

    Yes, sir.

    Felix Frankfurter:

    What happened between December and September, December 1952 and September 1954?

    Robert A. Bicks:

    The process of discovery would be the general description, I think.

    Felix Frankfurter:

    When was the — was — they’re at — was there any in this litigation?

    Robert A. Bicks:

    I would say so, Mr. Justice Frankfurter.

    The Government filed two extensive — two discovery motions, one at least of which was quite extensive.

    There has been a turn over of third party documents, there’s been — been a preparation of a tentative statement of issues.

    And in addition, sometime have been occupied internally within the department surveying what the broad direction the entire case should take.

    There have been some changes, department heads between the time the case was filed when the pretrial begun.

    William J. Brennan, Jr.:

    Well, how long after his testimony before the grand jury, was it sought to take the testimony of this Proctor official?

    Robert A. Bicks:

    Roughly, three years.

    William J. Brennan, Jr.:

    Well, what I’m — not quite clear, I think you suggested that — to Mr. Justice Harlan that this could go back for the balancing that you suggest should be made.

    Can that be made at this juncture or would that have to be done almost piecemeal as particular circumstances arose in taking a deposition in direct trial or otherwise?

    Robert A. Bicks:

    It would have to be done exactly as you described, piecemeal as a particular situation arose.

    (Inaudible)

    Robert A. Bicks:

    That’s right.

    (Inaudible)

    Robert A. Bicks:

    Particular portion —

    — occasion arises, is that the exception to you’re (Voice Overlap) —

    Robert A. Bicks:

    Precisely.

    Charles E. Whittaker:

    (Inaudible) upon the basis of (Inaudible) important use of this question in entering this order to produce under Rule 34, do you not?

    Robert A. Bicks:

    We do not, Mr. Justice Whittaker.

    Our position is that the Court misapplied the standard of good cause as a matter of law within 34.

    As a matter of law rather than discretion?

    Robert A. Bicks:

    Precisely.

    Felix Frankfurter:

    Well, it found good cause and you say he had no business in light of the —

    Robert A. Bicks:

    Yes.

    Earl Warren:

    Mr. Bicks, I understand that the appellees say that the — the judge had several sanctions that he could impose for your failure to turn this over and that you chose to have him select this one.

    Namely, to dismiss the lawsuit which is tantamount to you asking a — as a — as they say for a nonsuit against him.

    And that therefore, you should not be heard to complain if the judge acted in that — in that manner, therefore you’re — you’re not properly here.

    Robert A. Bicks:

    That is precisely their contention.

    Earl Warren:

    What — what is your answer to that?

    Robert A. Bicks:

    I — I would respond by first reciting very briefly the chronicle of events on which the defendant’s contention depends.

    The District Court in April of 1956 had rendered its opinion saying the United States would be obliged to turn over the transcript.

    After denying the United States’ motion for reconsideration in July of 1956, the court on July 24th, 1956 entered its first turn over order.

    The July 24th, 1956 order specified or obliged the United States to turn over any and all grand jury transcripts within 30 days.

    Some eight days before that July 24th order, 30-day deadline was to expire.

    In short, on August 16th, of 1956, the United States moved alternatively to stay the order’s effectiveness so its validity could be tested on appeal, or to amend the order to specify that if the United States did not produce the transcript, the complaint would be dismissed.

    The reasons for that motion stated by an affidavit that the Attorney General submitted at the time the August 16th motion was made.

    He said, “It is my considered judgment.”

    It would be unseemly for the Chief Law Enforcement Officer of the United States to be placed in the dilemma.

    Either of having to comply with the court order which he considers erroneous and compliance with which he deems contrary to public interest or alternately they would — being required to disobey the order without first having an opportunity for effective appellate review of the order.

    The Government’s motion was brought on for argument soon after it was made on August 16, defendants acquiesced in the Court’s amendment with July 24th order.

    The order was amended August 21st to provide that if the United States did not turn over the transcript, the case would be dismissed.

    When the August 24th deadline expired, the Court wrote defendants as well as the United States to determine if in fact the transcripts have been turned over.

    When the Court determined that the United States had failed to turn over the transcript, the September the 13th dismissal order from which the United States here appeals were entered.

    Against this background of event, the United States replied to defendant’s contention has three (Inaudible)

    First, that the United States appeals not from the August 21st amended order but rather from the September 13th dismissal order.

    The September 13th dismissal order in turn was not the inevitable result of the August 21st order, instead it was the inevitable result of the United States’ failure to produce in response to the August 21st order.

    Second, regarding the August 21st amended order, our position is that the United States did not consent with the substance of the August 21st order.

    Indeed, on two occasions it had sought with all its vigor to object to the substance of the turnover order.

    Instead, it sought merely to have the Court in advance of the order’s deadline specify what the remedy for noncompliance would be.

    This is a — this Court said in Thomsen and Cayser is known — thus, as this Court said in Thomsen and Cayser, the plaintiffs did not consent to a judgment against them but only that if there was to be such a judgment it should be final in form, instead of interlocutory, so that they might come to this Court without further delay.

    This case — the Government’s position here is even stronger than the plaintiffs in Thomsen and Cayser because the other remedies the Court might have applied would have enabled the Government likewise to appeal and indeed appeal with far less drastic consequences to the Attorney General qua litigant in this order.

    For example, had the District Court held the Attorney General in contempt and had he appealed, and had the Circuit Court or the Supreme Court later agreed that the District Court was in error, or was not in error, or sustained the District Court.

    Then left for the United States would again be the choice whether or not to comply or abandon the suit.

    We’ve given up that choice.

    The Attorney General chose for himself a path that had no advantage to him as a litigant, specifying the remedy of dismissal.

    And his sole motive was to avoid the unseemly situation of the Attorney General of the United States applying a Court order.

    Felix Frankfurter:

    Could you have appealed the turnover order as such?

    Felix Frankfurter:

    Was there any mode returned, I’m asking?

    Robert A. Bicks:

    There are two contexts in which it might have appealed.

    First, had the judge had the transcript instead of the United States and he had — had he been about to turn it over, I assume we might have tried to appeal by extraordinary writ.

    And second —

    Felix Frankfurter:

    Well, that wasn’t true, he didn’t have a due trial.

    Robert A. Bicks:

    That’s right.

    Felix Frankfurter:

    Correct.

    Robert A. Bicks:

    I —

    Felix Frankfurter:

    Could he — could that be a direct — could there have been a direct appeal from that turnover order on the period that this was while as it were interlocutory, it was one of those interlocutory situations which if non-appealable and obeyed would have — it nullified the very ground of your objection.

    Robert A. Bicks:

    That might have — that might have (Inaudible)

    Felix Frankfurter:

    I don’t know.

    And to trace that problem —

    Earl Warren:

    Mr. Bicks, may I ask you this.

    If — if we sustain the court below, is it a judgment on the merits?

    Robert A. Bicks:

    Yes, it is, Mr. Chief Justice.

    Felix Frankfurter:

    What do you mean by that under merits?

    Robert A. Bicks:

    The dismissal was prejudice, I say.

    Felix Frankfurter:

    Yes.

    William J. Brennan, Jr.:

    I mean —

    Robert A. Bicks:

    Are there no questions?

    William J. Brennan, Jr.:

    Mr. Bicks, may I ask this one last question.

    As I get it now the Government’s claim of privilege to make use of the grand jury minutes to the extent it has, rests solely on Rule 6 (e), doesn’t it?

    Robert A. Bicks:

    It does.

    William J. Brennan, Jr.:

    Well now, that is a rule of criminal procedure, isn’t it?

    Robert A. Bicks:

    It is.

    William J. Brennan, Jr.:

    And you’re giving the construction to it that is to the language made — let’s see, whether is it that the matter is occurring maybe disclosed to the attorney’s for the Government for use in the performance of their duties —

    Robert A. Bicks:

    That —

    William J. Brennan, Jr.:

    — that that embraces use for the purpose of a civil action.

    Robert A. Bicks:

    It would.

    That is the construction the Supreme Court have put on the rule in Wallace and Tiernan.

    Robert A. Bicks:

    If you recall there, a grand jury had been legally constituted, women have been excluded from it.

    A civil case would was brought after the grand jury — after the indictment, the grand jury returned, had been dismissed, it’s having been returned by an illegally constituted grand jury.

    The defendant from the civil suit moved to quash the Rule 34 motions made by the Government on the ground that the Government was making use of information secured by an illegally constituted grand jury.

    There’s no question that that this grand jury was legally constituted.

    There, the Supreme Court reversed the District Court and enabled the United States proceed with its civil suit.

    William J. Brennan, Jr.:

    Under this rule?

    Robert A. Bicks:

    Yes.

    Earl Warren:

    Mr. Correa.

    Mathias F. Correa:

    May it please the Court.

    There are two separate questions involved in this appeal.

    Although both are aspects of the administration by federal trial courts of what has come to be known especially in the antitrust appeal as the (Inaudible) case.

    The first question is as to whether the Government is entitled by the simple device of the voluntary dismissal to seek review of an interim discovery order, which in no way affects the ability of the Government to continue the prosecution of its case.

    Now, the second question is the merits of the order production of the grand jury minutes.

    Since there are three of us arguing on our side as a plan of argument subject of all — it was of course to the approval and the wishes of the Court.

    I shall address myself to the first the question, General Royall will follow to address himself to the second, and Mr. Fortas will sum up any remaining aspects of both questions.

    Now, if the Court please, at the outset they’re certain of the facts which have been adverted to you by counsel for the plaintiff, the appellant, which need to be stated a bit more fully perhaps.

    As has been stated the original discovery order here was ended in July 24, 1956.

    It was a usual form of Rule 34 order in the sense that it directed plaintiff to produce the grand jury transcripts for inspection and copy.

    The Government, although, consenting to the form of the order at time it was ended, stated that it — then there that it did not propose to comply with.

    Defendants thereupon stated that they would wait the 30 days provided by the order for compliance and if at the end of that time the Government continue to adhere to its position that it would not comply, they would take such action under the rules as they were then advised.

    No one, the Court, the Government, or the defendants suggested at that moment, that is on July 24, 1956, what action should or would be taken in the event of ultimate non-compliance.

    Now, thereafter, on August 16, 1956 as has been stated, before the expiration of the 30 days, plaintiff brought out a motion asking that the original order of July 23rd, directing the plaintiff to produce be set aside and that they be substituted for it.

    An amended order proposed by plaintiff, which would provide no direction upon plaintiff to do anything but simply would provide that the action would be dismissed unless plaintiff had produced the transcripts by August 24.

    In proposing this amended order, the plaintiff asked in the alternative but we think it’s significant only as a second choice.

    That is in — the plaintiff said in the event that the Court does not see fit to enter plaintiff’s proposed amended order.

    Then and only then, plaintiff asked the Court for a stay of its original order of July 23rd, 1956, in order to permit the filing of an appeal by plaintiff from that original order or the filing of an application for an extraordinary writ or both.

    Now, defendants entered no objection to the plaintiff’s motion and the Court accordingly granted the plaintiff’s first choice and ended the proposed amended order in substitution for the Court’s original order of July 23rd.

    Now, if the Court please, thereafter, has — has been noted the court below wrote to all the counsel for the parties, including Government, to find out after July 24th whether or not the Government had turned over the transcript.

    And, the Court said, this was pursuant to the Government’s amended order, and the Court went on to say, if the transcripts have not been introduced, I shall dismiss the action pursuant to the amended order of August 16.

    Now, if the Court please, the effect of these procedural maneuvers of plaintiff, if they are upheld is one, to deprive this Court of the opportunity of passing upon the renewability of the original production order, whether as a matter of appeal.

    Mathias F. Correa:

    The complainant originally said they might appeal that or as a matter of an application for the issuance of an extraordinary writ.

    Now, additionally, the procedure followed by a plaintiff would have the effect, if again is validated of requiring this Court to review the discovery order on the basis that if the order is sustained, the action is dismissed.

    Now, we submit, if the Court please, the plaintiff was under no compulsory to adopt this course.

    It was perfectly clear that the court below would have entered the stay proposed by a plaintiff as its second choice and it thus enable the plaintiff to seek review in this Court of the original discovery order.

    Mr. Correa, supposing the Court —

    Mathias F. Correa:

    Yes, sir.

    — have done originally on its own initiative what it already done in the amended order, would there been a — would the Government could have — could the Government have appealed from that?

    Mathias F. Correa:

    You mean if the Court had entered that — that order originally on its own motion?

    Yes, if Your Honor please, I — I believe the Government could have.

    As it could have, had the Court at the expiration of the 30 days on its own motion dismissed the action for the reason — by reason of the noncompliance.

    So, the question here is whether there was a waiver of some kind?

    Mathias F. Correa:

    Well, it’s the — it’s the difference, if Your Honor please, between a voluntary and an involuntary dismissal.

    Well, I was just thinking.

    Supposing this was a mistaken concept with the Government, unwise maneuver but still the record shows that they thought that was the way to go.

    But, I don’t quite see where they’re at accordingly.

    Mathias F. Correa:

    Well, if Your Honor please —

    And that was a conscious waiver.

    Mathias F. Correa:

    It seems to me that they’re out of court whenever they move the dismissal.

    If they have procured the dismissal of the action, whatever their motive in doing it, I mean, there’s no one saying their motives, their motive was perfectly obvious, they wanted to get a review of this order.

    But the fact that their motive maybe sound doesn’t affect the effect of what they’ve done legally.

    Now, in this case that’s cited in the briefs, Your Honor, you may recall Babbitt against the United States involving a controversy about the pay of an officer, an army officer.

    There was judgment for the plaintiff — for the Government, the law I think was in the court of claim.

    But the Government consented for the entry of judgment since they were the plaintiff.

    Now, the reason of the Government’s motive is perfectly sound, they — they said in substance as to avoid a multiplicity litigation, which we know started to take place on account of this — because of this ruling but this Court held that the order was not renewable because it had been entered upon the consent —

    Felix Frankfurter:

    But wasn’t this the condition —

    Mathias F. Correa:

    — of — of the — of the Government to —

    Felix Frankfurter:

    Wasn’t this a conditional or a contingent motion by the Government?

    I mean, if I —

    Mathias F. Correa:

    You mean, the amended order?

    Felix Frankfurter:

    Yes.

    Mathias F. Correa:

    Well —

    Felix Frankfurter:

    They — they didn’t agree to have the case dismissed.

    They said, if you compel us to do that, which we won’t do, we are legally right or wrong.

    We are legally to take — review this thing and to obey it is to defeat the very ground that we thing the public policy requires to resists.

    And how can we deal with this thing, well this is a way of bringing it up.

    What is — why isn’t the Thomsen case this case?

    Now, the Thomsen case through the Government, maybe it’s not the Government but the clerk.

    I remember the old doctor (Inaudible) in New York shouting his head off when he was thrown out of court but that’s not (Inaudible) with Judge Hough.

    And then he said, “Very well, the only way, notice him going back of his own out again, if that’s what you hold and I can sense in order to get the case up to the same court.”

    And that was Thomsen — the Thomsen case was, Mr. Correa?

    Mathias F. Correa:

    Well, the Thomsen case, yes, if Your Honor please, there —

    Felix Frankfurter:

    What is the distinction?

    Mathias F. Correa:

    Well, the Court in the Thomsen case reversed a judgment for the plaintiff and ordered a new trial.

    The plaintiff stipulated the judgment absolute that it was called frequently under the flat in many states and provided by statute in many states, and appealed that judgment, produced and final, to the Supreme Court.

    Now, it was there contended that the plaintiff, by so stipulating had consented to the judgment against him.

    Well, actually, the plaintiff hadn’t, the judgment was against him, before his stipulation and after his stipulation.

    He had relinquished a benefit indeed, which was contained in the original judgment in order to get — to protect his appeal.

    Now here, before this plaintiff stipulated, you say or moved, there was no judgment against him after.

    Felix Frankfurter:

    Why wasn’t there a judgment against to producing the document?

    Mathias F. Correa:

    But there was no judgment of dismissal, if Your Honor please.

    Felix Frankfurter:

    No —

    Mathias F. Correa:

    That — that’s the judgment which they (Voice Overlap) —

    Felix Frankfurter:

    Perhaps his choice —

    Mathias F. Correa:

    — entitled them to be here (Voice Overlap) —

    Felix Frankfurter:

    But they — did they have a choice?

    If — if you have no choice, you’ll agree to anything.

    Mathias F. Correa:

    They did have a choice, if Your Honor please.

    Felix Frankfurter:

    What was the choice?

    Mathias F. Correa:

    Their choice was — they’re own second choice stated in their papers to — applied to the District Court for a stay and to make a new — make application to this Court or the Court of Appeals for an extraordinary writ.

    Felix Frankfurter:

    Well, that means — you know very well that’s very doubtful there, it’s a very doubtful case for that purpose.

    Mathias F. Correa:

    Well, if Your Honor —

    Felix Frankfurter:

    For such a proceeding, didn’t they?

    Mathias F. Correa:

    I — I would say this, if Your Honor please, I think they did but let me say —

    Felix Frankfurter:

    May I join you?

    I think (Voice Overlap) — [Laughter] —

    Mathias F. Correa:

    I’m honored.

    Let me say, if Your Honor please, if their — if their views as to the importance, the public importance of this decision below and at the importance of the secrecy of the grand jury minutes being presented.

    If those views are sound, then they had an extraordinary good case for the issuance of the extraordinary writ, if Your Honor please.

    And that would — they would be entitled to expect that this Court would agree with them and would issue the writ to protect the side, this most important question.

    Felix Frankfurter:

    So, my reading of the opinion of this Court, possibly because that my bias is no to favor these extraordinary writs.

    Mathias F. Correa:

    Well, except in the — in the appropriate situation in the argument on the merits precisely is a part of this, the appropriate situation.

    And may I point out further a distinction of the Thomsen case.

    That as I’ve stated in the Thomsen case, what the plaintiff did by consenting to the amendment of the order which was there made is to give up the plaintiff, running in his favor in that order.

    The plaintiff belonging in this case by moving for the entry of the amended order secured a benefit.

    Now, the benefit being, that he was relieved of the direction of the original order which directed plaintiff to produce.

    William J. Brennan, Jr.:

    But, Mr. Correa, didn’t you start this discussion by saying really the problem is, was this a voluntary or an involuntary dismissal?

    Mathias F. Correa:

    That is correct.

    William J. Brennan, Jr.:

    Well now, did the Government do more than say this, if you’re going to insist on our compliance with that order, we will submit to an involuntary dismissal.

    Mathias F. Correa:

    Well, if Your Honor please, when a person moves for a dismissal, that —

    William J. Brennan, Jr.:

    Well, rightly or wrongly —

    Mathias F. Correa:

    — that is an involuntary dismissal.

    William J. Brennan, Jr.:

    Didn’t — didn’t the Government — wasn’t what the Government trying to say — suggest with, they get out of this thing as best they could, if the Court was going to insist upon their compliance to the turnover order by submitting to an involuntary dismissal.

    Now, they made the — that might add up to a voluntary dismissal but is it any more than that?

    Mathias F. Correa:

    Well, I think — I think it was, if Your Honor please, a voluntary dismissal because of form, which plaintiff didn’t.

    Plaintiff came in and moved the Court to enter an order which provided that the action would be dismissed upon the happening of an event which was wholly within the plaintiff’s (Voice Overlap) —

    William J. Brennan, Jr.:

    But you have to attach the consequence, voluntary dismissal, whether or not the Government intended it to be a voluntary dismissal, don’t you have prevailed?

    Mathias F. Correa:

    Well, if the Court must take the view, I take it that it is a voluntary dismissal.

    But we submit it is and the fact that a situation had arisen in the litigation, which the Government didn’t like or the plaintiff didn’t like doesn’t furnish any sufficient reason for converting a voluntary dismissal into an involuntary one.

    William J. Brennan, Jr.:

    No —

    Mathias F. Correa:

    Because —

    William J. Brennan, Jr.:

    I suppose the Congress do, too.

    Mathias F. Correa:

    Well, correct.

    Of course but, Your Honor, knows in many states or some states at least, I guess its less common than it used to be, a plaintiff could place a voluntary nonsuit.

    If at a particular stage of the case, it appeared that something had happened which was obstructive of his — his case, unless he took a voluntary nonsuit and then start over.

    But even in those stages, to tell that the plaintiff cannot appeal such a nonsuit.

    Now, we submit that here, if this procedure is validated, any plaintiff in effect, who finds himself at some stage in a litigation placing an interlocutory and non-appealable order that he doesn’t like, can simply come in and dismiss his action and then appeal the dismissal.

    William J. Brennan, Jr.:

    Well, you may be — you may be right but perhaps we ought to say that whatever is intended this has to add up to a voluntary dismissal, but certainly I think you couldn’t suggest on this record if the Government intended to dismiss the facts voluntarily.

    Mathias F. Correa:

    Well, if Your Honor please, I can only answer in the terms of the old legal maxim that one is presumed to intend that natural consequences of one’s act.

    William J. Brennan, Jr.:

    And without regard to whether he actually intended them or not?

    Felix Frankfurter:

    There must be a — there’s a qualification to the general proposition that you’ve indicated and to which I don’t agree, did they refuse to — did they refuse to submit the non-appealable order and go on with the case and take a nonsuit.

    They get a wrinkle in this case, is a non-appealable — assuming it’s non-appealable, a non-appealable order which if they obey makes futile any future opportunity to obey.

    Any futile opportunity to review that which they resist and which they have a right to test in the ultimate court but which they can test on the starting point that it’s non-appealable.

    Ordinarily, a non-appealable order, you can say, go ahead with the trial and if it goes again, (Inaudible) this non-appealable order shouldn’t have been rendered against you.

    You can then get the judgment reversed.

    But in this case, the order is one which by fair nature if they obeyed, assuming they had no alternative but to obey it or to somehow rather come up here.

    If they obeyed it, there are facts in the fire.

    Mathias F. Correa:

    Well, if the Court please.

    First, this is true with every discovery order, I take it essentially because if the party obeys, the material is discovered and to the extent that the mere discovery of the material is in issue, that’s been done.

    Felix Frankfurter:

    But it doesn’t raise this important question which we all agree even in this case namely, the public aspects of the disclosure of grand jury minutes.

    Mathias F. Correa:

    That’s right, if Your Honor please.

    And secondly, I suggest to Your Honor that had they obeyed the order and then made it — preserved appropriate objection throughout the trial that any use of the grand jury minutes that were tended were discovered under the order, they might still be able to raise the question on the appeal from an ultimate judgment.

    Felix Frankfurter:

    Well, but could they do that without making — without having had that very disclosure which the Government — I’m not now disclosing my thought, they are very mixed, I can assure you, because all — I was brought up on Judge Hand’s dictum.

    But could they do that without having the very disclosure which is the issue — the main issue and controversy here?

    Mathias F. Correa:

    No.

    They would have had disclosure obviously of these records.

    The only question that might conceivably be deserved is whether the ruling was right or wrong which would affect the institution because, Your Honor, would bear in mind —

    Felix Frankfurter:

    Well, they could get the judgment reversed if the disclosure order was wrong.

    Mathias F. Correa:

    That’s right.

    And — and that would —

    Felix Frankfurter:

    That wouldn’t take care of the larger problem whether — about having had secret minutes made public.

    Mathias F. Correa:

    It wouldn’t take care of it in respect of this one (Inaudible) grand jury that sat five years ago but it would take care of it with respect of all future grand juries.

    And if Your Honor please, the Government here is not contending, that if as a party is prejudiced in any way in the conduct of its case by this order, the Government rather comes in and says, “We are appealing this because we’re protecting the institution of the grand jury.”

    Now, we submit that there is a serious question, which arises as to whether or not the Government, qua a plaintiff in this action is entitled to seek a review of an order on — of this — of an order of this kind on that basis.

    Because these papers while they’re in the physical possession of the Department of Justice, are not a party’s papers.

    They are the — they are the record of the grand jury inquiry — the grand jury inquiry, the judicial inquiry by an arm of the court and they are the Court’s papers as Rule 6 (e) recognizes, and Rule 6 (e) in that respect is no more than declaratory of what we understand the law to be in any event.

    So that while — it is true and that the Attorney General and the various United States attorney have an interest.

    And I think very probably a right to be heard on a proposed action of the Court in disclosing or releasing grand jury minutes.

    That is in that capacity as law enforcement officers of the Federal Government.

    Felix Frankfurter:

    Is custodian to the record, Mr. Correa?

    They’re actually — they are the people who got the physical thing.

    Mathias F. Correa:

    Well, they are custodians of the Court.

    Felix Frankfurter:

    And the order requires a disclosure of that physical thing, doesn’t it?

    Mathias F. Correa:

    The — the order does but the point is that the physical thing, a part of the records of the Court by administrative circumstance that they offer reasons of convenience or whatever, kept in the physical custody of these — these officers.

    But my — my point here, if the Court please, is that these officers as law enforcement officers have a right to be heard.

    They would have a right to apply to this Court for review or to the appropriate Court of Appeal for review of what they considered an egregious proposed abused of discretion.

    But, that reason does not give them standing in their capacity as parties to this particular civil action appealing a judgment in this particular civil action which they do not in claim prejudices them than in the action in any way to obtain here review of this order.

    Earl Warren:

    Mr. Royall.

    Kenneth C. Royall:

    May it please the Court.

    Mr. Correa has well represented the aspect of the case relating to the dismissal of the appeal.

    My presentation will be directed to the question of whether the production order was a problem.

    The complaint in this case alleges antitrust violations extending since 1926 and it covers practically every aspect of the business of these defendants without residing them, of their selling, their promotion, their patents, their surveys, their meetings, their conferences, their embroiders, very elaborate territory.

    And that includes and is intended to include a large number of oral conversations that was developed in the record.

    In this — pursuant to this complaint, the plaintiffs subpoenaed scrolls of thousands of papers embracing hundreds of thousands of sheets of papers.

    And their preparation which the trial judge commented on not too favorably during the trial extended over a period of five years before this order of production was entered.

    The plaintiff admittedly used the grand jury transcripts first in bringing the action and framing the allegations of the complainant so stated.

    It used then in the preparation of the case and stated that they intended to use them during the remainder of the case.

    In a public announcement, the Department of Justice said the filing of this complaint results from a careful and thorough investigation of the industry including extensive grand jury proceedings.

    During the pendency of the case itself, Mr. — Judge Barnes speaking before a House Judiciary Committee says, it seems clear that the sole means for compelling pre-complete data in civil cases, speaking of civil antitrust cases in the grand jury.

    Now, from 1951 on this investigation and the lawsuit in the further preparation continued.

    And as far back as 1954, the trial judge said, “One of my concerns is since the plaintiff has been preparing this case for probably three years.”

    Kenneth C. Royall:

    That was two years before this order of production.

    How much longer must we wait for the defendant to prepare?

    The sooner the defendant are informed —

    Earl Warren:

    We’ll recess —

    Kenneth C. Royall:

    — of the plaintiff’s actual contention —

    Earl Warren:

    We’ll recess now, Mr. Royall.