On appeal from the Superior Court, Law Division, Middlesex County.
Pressler, Brody and Havey. The opinion of the Court was delivered by Pressler, P.J.A.D.
The State of New Jersey, Division of Criminal Justice, appeals, on leave granted, from an order of the Superior Court, Law Division, requiring the State, on terms, to make available to defendants, CPS Chemical Co., Inc. and three of its officers and employees (CPS or CPS defendants), the transcripts of State grand jury proceedings resulting in the separate indictment of other criminal defendants, referred to for convenience as the Madison Industries defendants. We affirm.
The State grand jury returned a multi-count indictment against the CPS defendants in December 1983 charging them with numerous crimes arising out of their alleged discharge of
industrial waste by-products into a trunk line of the Old Bridge Township Sewer Authority (OBSA). The OBSA trunk line connects with the trunk line of the Middlesex County Utilities Authority (MCUA) at a point known as the Runyon Connection. From the Runyon Connection, sewage is carried to the MCUA plant for treatment. CPS is located on the OBSA line upstream from the Runyon Connection. Madison Industries is located on the OBSA line between CPS and the Runyon Connection. The factual theory of the case against CPS is that during a period from sometime in 1979 to May 1981, but particularly between January and May 1981, CPS discharged into the OBSA line a waste product known as FM-2 heels, a substance having the same general physical properties as a plastic jelly, and that it did so by liquifying the FM-2 heels with acetone, a hazardous product. These discharges, the State contends, obstructed the sewer lines at a point downstream from Madison and also caused explosions in the line whose precise location vis-a-vis CPS, Madison and the Runyon Connection is not altogether clear from the record, but appears to have been downstream from CPS.
Following the return of the indictment, the CPS defendants moved for, among other relief, disclosure to them of the State grand jury proceedings pursuant to which the Madison defendants had previously been indicted. That indictment had charged Madison, CPS's immediate downstream neighbor, with having discharged unidentified hazardous chemical wastes into the OBSA line from January 1975 to February 1980. The indictment was disposed of by the entry of guilty pleas by two of the Madison defendants and the dismissal or non-moval of the charges against the others. There has been consequently no trial of that indictment.
The basis of the CPS application was its assertion that Madison and not it was responsible for the obstruction and explosions in the sewer line. Its factual theory was that the specific waste products discharged by Madison, either themselves or in chemical combination with CPS's benign and legal
discharges, caused these problems, which had become manifest by reason of accumulation or delayed chemical action after Madison had stopped discharging, if in fact Madison had stopped. Proof of this theory depended, they asserted, on access to information respecting, for example, the precise chemical composition, quantity and timing of Madison's discharges. This information they believed to be contained in the Madison grand jury minutes and would not be otherwise available to them.
After giving the Madison defendants an opportunity to be heard, Judge Hoffman granted CPS's motion over their objection and that of the State, concluding that the Madison grand jury proceedings were relevant to the indictment against CPS and that the CPS defendants had a legitimate and compelling need for disclosure thereof in preparing their defense. His order prohibited the CPS defendants from disclosing the Madison grand jury transcript to third persons. The State, joined by the Madison defendants, appeals.
In challenging the disclosure order, the State argues that the rules of court do not authorize the disclosure of grand jury proceedings to a criminal defendant not indicted as a result thereof. It further argues that even if such discovery were authorized, the order here was improvidently entered since (1) only the assignment judge in charge of the State grand jury could have entered it, (2) the CPS defendants failed to demonstrate either a "particularized need" or a "compelling necessity" for the discovery and (3) the order was too broad. We disagree with all of these contentions.
First, we have no doubt that in a proper case and based on a proper showing, a criminal defendant may be afforded access to grand jury records other than those which resulted in his own indictment. We point out that even prior to the 1967 adoption of R.R. 3:5-11, the predecessor of R. ...