Procter & Gamble, 356 U.S. at page 683, 78 S. Ct. at page 987.
The defendants finally contend that once the Government has been proven to have misused the Grand Jury to take evidence in a solely civil case, as it did here for the last week or so out of the Grand Jury sessions for well over a year, there should be a disclosure to them, not simply of the testimony during the period of this misuse, but of the entire period. They argue that such is the meaning of the final sentence in Procter & Gamble, 356 U.S. at page 684, 78 S. Ct. at page 987:
'It is only when the criminal procedure is subverted that 'good cause' for wholesale discovery and production of a grand jury transcript would be warranted.'
However, the whole Court, including the dissenting Justices, apparently agree that if the Grand Jury proceedings had been instituted for a solely civil purpose, then, since the testimony should have been taken publicly and not privately, according to the statutory requirement, the entire Grand Jury transcript should be disclosed to the defendants.
'The Court recognizes that had the Government's grand jury investigation been instituted solely in aid of a civil suit -- that is without any thought of obtaining an indictment -- the appellees would then have been entitled to see the entire grand jury transcript.' Dissenting opinion, 356 U.S. at page 689, 78 S. Ct. at page 990. (Italics this court's.)
On the other hand, if 'the criminal procedure is subverted' at all, then wholesale, not entire, discovery of the transcript would be warranted. This allusion to wholesale discovery, because of the subversion of the criminal procedure, is contradistinguished by the Court in the majority opinion from its immediately preceding allusion to discovery for particularized cause shown. In short, Procter & Gamble holds that (a) if the Government's use of the grand jury has been completely wrong from the beginning, the 'entire Grand Jury transcript' is discoverable to the defendants without the showing of other cause; (b) but if there is a subversion by the partial unlawful use of the Grand Jury for a purely civil purpose, then that portion of the transcript is to be discovered wholesale, without the showing of other particularized cause. Finally, (c) if the testimony is properly taken before the Grand Jury, then, before the defendants are entitled to any disclosure, they must show particularized good cause. As to the defendants' motion for full disclosure of the Grand Jury testimony, this Court therefore adheres to its opinions previously referred to herein.
The motions of the defendants for suppression, for impounding, and for full disclosure, of the testimony before the Grand Jury here are therefore denied under the present proofs, save as already disclosed, and as indicated as to the deceased witness.
An order may be entered accordingly.
In its opinion on the use of the Grand Jury transcript, filed December 10, 1959, the Court said in the above regard:
'Defendants have moved to be shown the transcript of the testimony of one Reilly, a witness since deceased, whose testimony is therefore unavailable to them on deposition. Barring the fact that this witness has made available to defendants a really complete memorandum of all his Grand Jury testimony, which, if subject to question, must be decided impartially, his Grand Jury testimony should therefore be made available to the defendants who desire it, in order that they be placed on a substantial parity with plaintiff.'
This was to implement the decision of our highest Court in this very case, United States v. Procter & Gamble, 1958, 356 U.S. 677, 682, 78 S. Ct. 983, 986, 2 L. Ed. 2d 1077, where that Court, after alluding to the 'indispensable secrecy of grand jury proceedings', said that same 'must not be broken except where where is a compelling necessity. There are instances when that need will outweigh the countervailing policy. But they must be shown with particularity.' The Court added that the mere delay and expense necessitated by taking the depositions of witnesses who had testified before the Grand Jury would not constitute such a particularized showing of 'good cause.' Here it should be noted preliminarily that none of the reasons basic to Grand Jury secrecy, as noted in Procter & Gamble, 356 U.S. at page 681, footnote 6, 78 S. Ct. at page 986, in its quotation from United States v. Rose, 3 Cir., 1959, 215 F.2d 617, 628-629, substantially apply. This is because, first, no indictment exists in this cause or is contemplated therein; second, the only witness whose Grand Jury testimony is sought is not a live witness, subject to importuning or tampering; third, the situation dealt with by this witness is not a current one, but involves transactions occurring years ago.
We thus have before us the fortunately unusual, not to say unique, situation, where Reilly, the Grand July witness whose testimony is desired, is deceased, so that his deposition cannot be taken. In fact, the only means whereby the defendants can obtain discovery from him of testimony 'reasonably calculated to lead to the discovery of admissible evidence (at the trial)' F.R.Civ.P. 26(b), 28 U.S.C., is either by having this deceased witness' Grand Jury testimony turned over to the defendants for that purpose, or by turning over to them a so-called summary of his Grand Jury testimony, which he himself gave defendant Colgate shortly after he so testified. Of course, as this Court has already stated, if this Summary is 'a really complete memorandum of all his Grand Jury testimony', then discovery thereof should be made to the other defendants in justice, thereby avoiding any possible violation of the traditional secrecy of the Grand Jury. On the other hand, if such Summary is not 'a really complete memorandum of all his Grand Jury testimony', to furnish this Summary to the other defendants, and not his Grand Jury testimony, would deprive these defendants of their proper discovery rights under the present unusual circumstances, and without any necessary protection of traditional Grand Jury secrecy, for the reasons above stated.
In order to answer this question as to whether or not this Summary is 'a really complete memorandum of all his Grand Jury testimony', this Court has read, word by word, Reilly's complete Grand Jury testimony, taken November 6, 1952, consisting of some 138 pages, and attempted to compare it, topically as well, with the Colgate Summary of his testimony, consisting of some 51 typewritten pages. Quite irrespective of the fact that the Grand Jury testimony is over two and one-half times as long as the Summary (though it is really remarkable how much detail of his Grand Jury testimony Mr. Reilly was able to recall in his Summary), it is perfectly clear that the Summary does not include all the data included in the Grand Jury testimony. This is true in several instances dealing with one of the very crucial angles in this case, i.e., how defendant Colgate customarily reacted as to its prices when informed of contemplated price changes by its smaller competitors. Bearing in mind the fact that it will doubtless become of great importance in this case to determine whether these price changes were made simply by the law of the market place, or by preliminary informal understanding between the defendants in this cause, and bearing in mind the further fact that the witness Reilly was the Executive Vice President of defendant Colgate, in charge of its soap department, and therefore next to its President, in control of establishing its soap prices, the importance of his testimony before the Grand Jury in that regard, not covered by the Summary, can be well understood.
Not only so, but even where this practice as to such and other price changes is covered elsewhere in the course of both the Grand Jury transcript and the Summary, the witness goes into greatest detail, referring to the trade practices and methods in that regard and uses trade terminology, the meaning of much of which is naturally beyond the present understanding of the Court. Though much of this detailed terminology appears in the Summary, some does not. Thus the Court, in dealing with all these detailed practices, methods and terms, is unable to say with any assurance whether or not some of this terminology which might appear to it to be unimportant might give those connected with the defendants and skilled in the trade a real lead as to how therefrom to obtain testimony from others which would be admissible at the trial.
Again, on another important angle, that affecting Colgate's own price markup, Reilly's Grand Jury testimony differs from his Summary in specific terms. Moreover, there are a number of approximations which the witness makes along various lines which differ in his Grand Jury testimony from that in his Summary.
In substance we thus have this situation:
(a) Since we here deal solely with a deceased witness, whose knowledge as to this case cannot possibly be made available to defendants on deposition, and in a case where no indictment exists or can exist, the ordinary principles as to the traditional Grand Jury secrecy are in no wise affected.
(b) The plaintiff is not dealt with unfairly, whether Reilly's Grand Jury testimony is turned over to the defendants or only his Summary. If the Summary is 'a really complete memorandum of all his Grand Jury testimony', then, whichever the defendants receive, they receive essentially the same thing, and that to which they are entitled under the discovery rules.
(c) But if the Summary is not 'a really complete memorandum of all his Grand Jury testimony' and the Summary only is turned over, perchance even because of the Court's lack of understanding of the importance to defendants of the trade terminology used, then the defendants will have been denied their proper discovery rights, with possibly serious consequences.
The present unusual circumstances, therefore, in justice require that a copy of the transcript of the Grand Jury testimony of the deceased witness, James A. Reilly, taken November 6, 1952, be turned over to the defendants Proctor & Gamble and Lever.
An order may be entered accordingly.