481 U. S. 102
April 21, 1987
The Federal Rules of Civil Procedure say that information from grand jury investigations cannot be disclosed, absent a court ruling based on good cause. The antitrust division of the Justice Department had a grand jury investigate criminal charges against three companies. After two years of investigation, the DOJ decided not to press any antitrust charges. A little later though, the same attorneys used the grand jury information toward the end of filing a civil charge against the companies under the False Claims Act. After obtaining a court ruling, those attorneys consulted with some DOJ attorneys from the civil division. One of the companies objected to this continued use of the grand jury information.
In a 5-3 vote, the Supreme Court upheld the actions of the DOJ (Justice White did not participate). Stevens rejected the company’s claims that continued use of grand jury material for a possible civil charge constituted a “disclosure” under Federal Rules. Because the exact same attorneys were using the information, it had not been ‘disclosed’ under the plain meaning of the Rules. Stevens also upheld the sharing with civil division lawyers following judicial authorization. Enforcement of the False Claims Act was a good cause, sharing the information would eliminate wasteful re-discovery, the information would still be relatively secret, and there was no evidence the information would be misused.
Brennan dissented, and was joined by Marshall and Blackmun. He stressed the importance of grand jury secrecy, and noted that suspects will be less likely to testify truthfully if the information can be disclosed. He also felt that, in light of the grand jury’s purposes, “disclosure” should refer to any usage of testimony after the fact, rather than the identity of the person who uses that testimony. Because Brennan did not feel that the antitrust division had a right to use the grand jury information in the first place, he said there was also no right to share it with the civil division, court order or no court order.
I absolutely agree with Brennan in this case. The grand jury has awesome powers, and the information it gathers ought to be heavily protected. Also, I’d like to point out that investigating a (mostly baseless) antitrust claim for two years, and then trying to nab the same companies on alternative civil grounds definitely smacks of government harassment.