This is an action for malicious prosecution and tortious interference with a business. The parties seek disclosure of their testimony before the Hudson County Grand Jury and also disclosure of the grand jury testimony of other potential witnesses in this civil action. The Prosecutor of Hudson County opposes the motion asserting the secrecy of grand jury proceedings.
The issue presented is the conflict between two judicial policies, the first protecting the secrecy of grand jury proceedings and the second fostering the search for the truth in civil trials. Under the circumstances here the second policy predominates.
The motion for disclosure is granted subject to a protective order.
Testifying before the grand jury were the parties to this civil action and Humberto Varone and James Smallze. Notice of this motion was given to Varone and Smallze, but they did not appear.
Under New Jersey law, a civil litigant who seeks grand jury testimony must make a "strong showing of particularized need that outweighs the interest in grand jury secrecy." State v. Doliner, 96 N.J. 236, 246 (1984). See also Doe v. Klein, 143 N.J. Super. 134, 141-3 (App.Div.1976).
In the Doliner case, the State sought to use grand jury transcripts and materials in civil prosecutions. The New Jersey Supreme Court considered the following reasons for nondisclosure:
(1) [t]o prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he had been under investigation, and from the expense of standing trial where there was no probability of guilt. (Procter & Gamble, 356 U.S. 677, 681 n. 6, 78 S. Ct. 983, 986 n. 6, 2 L. Ed. 2d 1077 [quoting U.S. v. Rose, 215 F.2d 617, 628-9 (3d Cir.1954)].)
The New Jersey Supreme Court in Doliner commented:
It may be seen at once that the reasons for secrecy are primarily related to the work of an ongoing grand jury investigation, not the work of a grand jury that has concluded its deliberations and returned either an indictment or a no bill. When either of those events occurs ...