DOUGLAS OIL CO. v. PETROL STOPS NORTHWEST

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Argument of Max L. Gillam

Chief Justice Warren E. Burger: We will hear arguments next in Douglas Oil Company against Petrol Stops Northwest.

Mr. Gillam, you may proceed whenever you are ready.

Mr. Max L. Gillam: Mr. Chief Justice, may it please the Court.

I represent here today the petitioner Douglas Oil Company of California, but I will also be speaking on behalf of the other petitioner Phillips Petroleum.

I would propose to break this argument down into five parts and want to inform the Court of this now, so that if there are particular questions, the Court may elect if it wish to defer them till later on.

First of all, I am going to talk about what I think there is confusion about which is what exactly the petitioners are requesting here and what the petitioners are not requesting.

Secondly, I will talk about the facts for a few minutes.

Third, the position of the government in these proceedings and I believe that the government is sitting today at the wrong table in connection with this grand jury transcript argument.

Fourth, I would like to talk about the procedures for the determination of particularized need and fifth our belief in the significance of this Court’s reaffirmation of the principles contained in Procter & Gamble.

We seek to have this Court do two things.

We want the rather rigid principles of particularized need of Procter & Gamble reaffirmed.

Secondly, we would like a ruling by this Court that would indicate to the District Courts in the United States, this Court’s feeling on the proper form in which a determination of particularized need should be made.

Justice William H. Rehnquist: Mr. Gillam.

Mr. Max L. Gillam: Yes sir.

Justice William H. Rehnquist: Was this is a civil or criminal action as you can see that?

Mr. Max L. Gillam: This arises out of a civil action.

Justice William H. Rehnquist: I do not mean the Arizona action; I mean these rather odd proceedings that took place over in California.

Mr. Max L. Gillam: They come under the heading of the miscellaneous criminal calendar as a matter of nomenclature and are regarded I believe as being ancillary to the Court’s jurisdiction sitting criminally in connection with the grand jury investigation.

Justice William H. Rehnquist: When you get to the Court of Appeals pursuant to what 28 U.S.C. 1292.

Mr. Max L. Gillam: Yes sir, I believe so.

Justice William H. Rehnquist: This is a final decision.

Mr. Max L. Gillam: Yes sir, it is a final decision which gave us the right to appeal.

Justice William H. Rehnquist: And you – on the basis of federal jurisdiction, the District Court was what?

Mr. Max L. Gillam: Basically, the basis of jurisdiction is the federal District Court’s control of what is in fact an arm of the judiciary, the grand jury, and the control which it exercises over that.

Justice William H. Rehnquist: Oh, but ordinarily you do not have third-party such as your opponents intervening in a criminal case.

Mr. Max L. Gillam: They were not sir, intervening in a criminal case.

Justice William H. Rehnquist: I thought that is what you said.

Mr. Max L. Gillam: No sir, this is ancillary to the criminal proceeding, which it had already been completed.

They had to file in under the miscellaneous criminal duty judge responsibilities, because it is regarding the Central District of California that the criminal side of the court has jurisdiction over all matters relating to grand juries.

Justice William H. Rehnquist: Well, we are not bound I take it by the views of the criminal division of the central division of the District Court of California.

Mr. Max L. Gillam: Yes sir, that is correct.

You are not bound by it, but that --

Justice William H. Rehnquist: Doesn’t it bother you at all that the basis for federal jurisdiction in the District Court here or how the case got to the Court of Appeals, it’s a very unorthodox thing.

Mr. Max L. Gillam: It is not Your Honor as unorthodox as I wish it were.

The Court that has jurisdiction over the documents normally has that jurisdiction pursuant to an impounding order which is issued at the beginning of the grand jury which impounds the documents in that district and they may not be removed from the district without further order of the Court.

So the application is to the Court and I don’t think it makes much difference whether it is regarded as the civil or the criminal side of the Court but the application is to that court, which receive those documents under an impounding order.

Justice William H. Rehnquist: Anyone can then come in and ask for the documents.

Mr. Max L. Gillam: Yes sir.

Justice William H. Rehnquist: And if they are turned down or if they are granted, in either case, it’s a final decision.

Mr. Max L. Gillam: Yes sir.

Justice William H. Rehnquist: Appealable to the Court of Appeal.

Mr. Max L. Gillam: Yes sir and historically regarded as such.

I would like to emphasize that the petitioners in this case are not seeking to affect any kind of cover-up although there were implications of that in the proceedings surrounding these documents and on the opinion of the Court of Appeals.

We do not contend that the respondents would not be entitled in some measure to some portion of the applicable transcripts and documents when and if they could show a legitimate need or requirement for them.

They have the whole panoply of the remedies available under the federal rules of civil procedure and the concomitant actions they can take in connection with their regular federal civil procedure document requests and depositions.

They have the concomitant right to appeal for the -- to a Court for the release to them if they can show the proper cause of portions of the grand jury transcripts and documents.

Chief Justice Warren E. Burger: And you said you use the term proper showing, would you define that a little more about it?

Mr. Max L. Gillam: Yes sir, that is --

Chief Justice Warren E. Burger: And talk about particularized need or just what you have in mind?

Mr. Max L. Gillam: I have in mind the three requirements that Procter & Gamble set forth.

The requirement that they show that the -- that which they seek is useful, that which they seek is relevant to the proceeding, that they show that they will suffer prejudice or an injustice will be done if they do not get the materials and third as this Court articulated in Procter, a particularized need for them.

That’s what I mean by a proper showing Your Honor.

May I say that few decisions of this Court have been gendered as much dispute as Procter & Gamble.

The federal District Courts and the Circuit Courts are in complete disagreement about almost every aspect of particularized need.

On the one hand, we have the Ninth Circuit, four judges of the Seventh Circuit as in the Clavey decision and many District Court judges in the Ninth, Seventh, and Fifth Circuit.

This group adheres to what I refer to as the slight need test for the release of grand jury documents.

On the other hand, you have Dichter in the Second Circuit to the contrary in Baker versus United States Steel, the Third Circuit to the contrary in City of Philadelphia versus Westinghouse.

Justice Byron R. White: What do you mean contrary, no need or much more need?

Mr. Max L. Gillam: Much more need Your Honor, much more need.

You have the Fourth Circuit in the Bask decision adhering more to the rigid standard of Procter & Gamble.

The Fifth Circuit, you have Texas versus United States Steel and you have four judges on the Seventh Circuit Court of Appeals.

The Clavey decision recently handed down by the Seventh Circuit is instructive.

The issue was whether the Court had improperly -- the Court below had improperly refused to permit and accuse to obtain the transcript of his proceedings.

The District Court judge said that it did not acted improperly in refusing to give him the transcript.

A panel of the Seventh Circuit then upheld that on a two-to-one vote, petition for rehearing En banc was granted thereby vacating the judgment of the panel and the judges split four-to-four on whether there had been the kind of particularized need under Procter & Gamble that would have given that criminal defendant a copy of his transcript.

Justice Potter Stewart: Most human beings are products of their experience and that even includes federal judges. Isn’t it true that in California, in the state courts in California, grand jury proceedings are not secret and they are pretty readily available to anybody?

Mr. Max L. Gillam: Yes sir, it’s a conclusion that the issuance of an indictment of transcript of all of the proceedings is automatically given to counsel for the defendants.

Justice Potter Stewart: That’s what I saw.

Mr. Max L. Gillam: That is nice in some ways and it is not nice in other ways.

Justice Potter Stewart: And in many events that’s a California practice?

Mr. Max L. Gillam: Yes sir and that is the practice in several –

Justice Potter Stewart: And when the lawyer is used to.

Mr. Max L. Gillam: Yes sir.

Justice Potter Stewart: Right.

Justice John Paul Stevens: Mr. Gillam, in this case as I remember is that you do have the transcripts, the defendants have the transcripts of the grand jury proceedings.

Mr. Max L. Gillam: That is correct.

Justice John Paul Stevens: Is the record tell us how they got them?

Mr. Max L. Gillam: No sir, the record does not tell you I believe how they got them, because that did not become an issue in the District Court or in the Court of Appeals.

The transcripts were sought from the government.

Let me go back a second sir to answer your question.

The respondents here, the plaintiffs in the Arizona court in October of 1976, filed a request for the production of transcripts and grand jury documents which were in the hands of Douglas and Phillips.

Objections were made to that production on the grounds of relevancy and related issues.

No objection was made at that stage and hasn’t been made on the grounds that the transcripts were released subject to restrictions.

Standard operating procedures --

Justice John Paul Stevens: Objection made on the ground that the proper remedy was in the other court?

Mr. Max L. Gillam: No sir, objection was not made on that ground.

We did not have the kind of fingerpointing in each direction that I think plaintiffs would believe we were guilty of.

Justice William H. Rehnquist: What we are reviewing here Mr. Gillam of course is the Court of Appeal’s decision which said that District Court’s ruling was not an abusive discussion as I read the last paragraph of it.

Mr. Max L. Gillam: Yes sir.

Justice William H. Rehnquist: Was the District Judge who passed on this motion, the one who had trialed the criminal case?

Mr. Max L. Gillam: No sir.

There was no trail of the criminal case, but he had had a Judge Gray was the judge below who issued the opinion which we are – the Ninth Circuit reviewed and which we are requesting you to review had had nothing to do with any aspect of any case.

Justice William H. Rehnquist: You just have to be a calendar judge or a motion judge for this kind of –

Mr. Max L. Gillam: He was a miscellaneous duty judge during that month and it was assigned to him.

Judge Ferguson first had the case, Judge Malcolm Lucas do not have the criminal case.

Judge Pregerson in the Central District had the companion civil case.

Judge Gray had nothing to do with anyone of those actions.

Justice William H. Rehnquist: So, then the Court of Appeals is not entitled, I suppose to rely very heavily on the District Court’s knowledge of the case.

Mr. Max L. Gillam: Yes sir, that’s correct and Judge Gray, whom we respect greatly and think he is one of the finest judges in our district if not the country.

Justice William H. Rehnquist: Former President of the BAR Association.

Mr. Max L. Gillam: Yes sir, and a pleasure to try a case before him always.

Judge Gray made no bones of the fact that he did know anything at all about this, but where he went wrong we believe had we have told him this and not succeeded in convincing him is in believing that after the grand jury proceedings are concluded, there is a very slight need for secrecy.

As a practicing lawyer who stamps the grapes in his vineyard regularly, I disagree violently with him with respect to that and I think that entire criminal bar --

Justice Byron R. White: You are disagreeing with the prosecutor too I guess?

Mr. Max L. Gillam: No sir, the prosecutor is changing the position and disagreeing with me.

Justice Byron R. White: You are disagreeing with the federal antitrust prosecutor.

Mr. Max L. Gillam: In this case Your Honor, unfortunately the government has taken the position that the transcript should be released and I would like if it is appropriate at this time to direct my remarks at that and why in the world is the government take --

Justice Byron R. White: Before you leave the question of which, I think you are telling me which judge is the right one to say these issues.

You made the point that Judge Gray had little familiarity with the case.

As I understand your legal argument, you would make precisely the same legal argument if there had been a full criminal trial that which Judge Gray had presided, you would still say the case should be decided by the Judge in the place where the treble-damage action is filed.

Mr. Max L. Gillam: Yes sir, I would still say that and --

Justice Byron R. White: So the particular, the question whether Judge Gray knew very much about the case really has nothing to do with the issue for us.

Mr. Max L. Gillam: It has very little to do with Your Honor if the Court considers the nature of the antitrust complex litigation and the enormous significance that the trial judge take hold of that litigation.

The initial report of the Presidential Commission on abusive discovery and remedies under the antitrust laws comes out very strongly with what everybody else who had studied this matter has come out with.

It is extremely important that the trial judge take hold of the litigation.

Only in that fashion, can you stop the enormous expense and waste of time involved.

You are now faced with a proposed amendment to Rule 26, which would require at the request of either party that the trial judge hold an initial hearing and determine what issues their discovery shall proceed upon and the order in which discovery will proceed.

That is for a very good reason. There are almost all ways in these litigations, standing questions, questions on whether the plaintiff has been injured under Illinois Brick, which is decidedly an issue in this case as admitted on page 7 of respondent’s brief.

It would be folly to permit the parties to engage in broad scale discovery we would contend prior to a resolution of 12(b)(6) motions, prior to resolution of motions on standing and injury under Illinois Brick.

That is why the trial judge should be in-charge.

You may never reach these discovery issues, if the trial judge has set the proper kind of schedule.

Justice Byron R. White: But in this case, didn’t Judge Gray call up the trail judge and ask him whether he thought (Voice Overlap) go ahead with it?

Mr. Max L. Gillam: No sir, Judge Gray offered to call up the trail judge and see if they had any objection to his releasing the transcripts and the documents.

This is not the kind of informed, not the kind of hearing, which we would want to have had with the trial judge to discuss all the reasons why the transcripts and documents should not be released at this time.

Justice Byron R. White: Why would not you at that point make the very argument you are making now?

Mr. Max L. Gillam: We did make the argument I am making now.

Justice Byron R. White: You said that he asked you whether you should call a trial judge and you said don’t bother.

Mr. Max L. Gillam: He said, would you like me to call the trial judge and see if he has any objection to my releasing the documents.

We did not ask him to make such --

Justice Byron R. White: Your answer, what you have been saying very persuasively after now as you very violently wanted the other trial judge to decide it, why would not you tell Judge Gray that?

Mr. Max L. Gillam: We did tell –

Justice Byron R. White: You are telling Judge Gray would know all the issues about your case so as the trial judge in Arizona.

Mr. Max L. Gillam: We did tell Judge Gray that we wanted the trial judge to decide it.

Justice Byron R. White: Oh, I see.

Mr. Max L. Gillam: We did not agree with him that he should call the trial judge to ask the narrow question about that the trial judge had any objection to him releasing the transcripts and the documents.

Justice Byron R. White: Oh, I see.

Chief Justice Warren E. Burger: Do you have the individual calendar or the master calendar?

Mr. Max L. Gillam: We have an individual calendar in the Central District of California.

Chief Justice Warren E. Burger: How about the Arizona?

Mr. Max L. Gillam: They also have individual assignments to individual judges.

It would be a very different situation Your Honor if we had a master calendar situation but most of the federal districts in which I practice –

Chief Justice Warren E. Burger: The individual calendar is aimed at having one judge deal with everything relating to the case and no other judge put his hands on it, isn’t it?

Mr. Max L. Gillam: Yes sir, the individual calendar and that is both that way in Arizona and in the Central District of California and I believe in most districts around the country I have practiced in most jurisdictions.

And these antitrust cases, even if there is a master calendar situation are assigned to one judge for all purposes; you can not have the different judge ruling on it every month.

I would like to return to the question of Mr. Justice White if I may who asked me about the government.

I believe it was Mr. Justice White, I may be confused.

Justice Byron R. White: No, I did, yeah.

Mr. Max L. Gillam: And you asked me if we were not in fact opposed to the government here.

I would prefer to state that we are fighting the government’s fight here because they are not willing to and I think that is for a variety of reasons.

Justice Byron R. White: Well, they did not need to file.

Mr. Max L. Gillam: Sir?

Justice Byron R. White: They did not need to take this position that they have.

I take it, I take it, they have taken it honestly that they think that is a proper rule of law that will release these minutes.

Mr. Max L. Gillam: This is the position they have taken and I do not quarrel with the fact that they have taken it honestly.

I think they have taken it mistakenly and I think they have taken it for three reasons, they have taken it mistakenly.

First of all, I do not think the government really understands the significance to the individual witness going into a grand jury of his knowledge that it is only under the most egregious circumstances that his transcript will be released.

Justice Byron R. White: Well, their partners have been in the criminal prosecution business a long time.

Mr. Max L. Gillam: But not representing many defendants Your Honor in this case.

Justice Byron R. White: I know, but they have been calling a lot of witnesses.

Mr. Max L. Gillam: Yes sir, they certainly have.

Justice Byron R. White: And I suppose they would feel the first chill of their -- the first chilly wind on witnesses they would feel.

Mr. Max L. Gillam: They are feeling that chill.

The change in the government’s position has not been initiated in this case.

It has been a gradual change in the government’s position with respect to the secrecy of grand jury proceedings.

It almost coincided with the semi-national scandal involving Dita Beard and ITT.

It was augmented by the Watergate situation and the fear of government prosecutors that the world would think that they had been guilty of a cover-up.

In fact in this case, the accusation basically of a cover-up was made by the former antitrust division attorney who had left the office six months before the indictment came down.

These are the Jonathan P Nave affidavits, which were attached as exhibits to the motion to supplement the appeal in the Ninth Circuit supplement the record by respondents and which per the Ninth Circuit opinion, it considered in making its ruling.

There are pages 26 through 42 of the appendix.

The former person in the government Mr. Nave stated that his attention had been drawn to the portion of the competitive impact statement filed in the civil case which said "since the government did not develop evidence price fixing with respect to gasoline, other than rebrand gasoline basically" this is the only the reason the rebrand gasoline alone was involved in the indictment.

Mr. Nave filed an affidavit in camera together with his statement about that portion of the competitive impact statement.

At the direction of the Judge Pregerson, he then filed the second affidavit which is contained in the appendix at approximately the page number I mentioned, approximately page 30, in which he while not referring to specific companies, gave five lines of inquiry that he knew from having conducted the portion of the grand jury until September of 1974.

He gave the leads which the government had but as to which no indictment had come down.

Retail price fixing, no indictment came down, no one was accused.

This retail price fixing under his affidavit included an alleged pipeline right into the executive office of the White House.

Second, use of exchange agreements to deny supplied independence, no indictment was ever handed down for that.

Third, collusive action they would like to deny import" no indictment as to that.

Fourth, collusion to eliminate cross hauling and fifth collusion to include the price of credit cards in the sale of crude oil so that independents, who did not have their own crude oil supply could not compete.

This charge was basically a charge to cover-up by a former man in the division.

I think it has made the government understandably very sensible about taking any kind of position against disclosure of any transcript involved in these grand juries but may I say to this Court the very act of a former attorney for the antitrust division in filing in this kind of affidavit is I believe a violation of Rule 6(e).

It certainly discloses crimes as to which there was no indictment.

Justice William H. Rehnquist: In whose behest did he file it?

Mr. Max L. Gillam: I can only refer you sir to the language of its first affidavit in which he said he had been contacted by counsel for Petrol Stops and Gas-A-Tron, the respondents herein and had been asked to comment on the competitive impact statement of the government.

This is necessary Tunney Act as the Court knows.

Justice William H. Rehnquist: Are you prepared to say it was not filed on your behest?

Mr. Max L. Gillam: Oh yes sir, it was certainly not filed at my behest or at our behest.

I would like to reserve the few minutes I have remaining if I may.

Argument of Daniel L. Berman

Chief Justice Warren E. Burger: Very well Mr. Gillam.

Mr. Berman?

Mr. Daniel L. Berman: Mr. Chief Justice, may it please the court.

The parties I represent are the only parties before the Court that have not had access to the grand jury materials in question.

And frankly I will be more impressed by Douglas and Phillips for being concerned the grand jury secrecy if they were in the same position but they are not in the same position and we are not arguing about secret grand jury materials because the only grand jury materials that the District Court were disclosed to the parties that I represent, were grand jury transcripts that had already been disclosed to the petitioners Douglas and Phillips and documents produced by the petitioners Douglas and Phillips in connection with the grand jury proceeding.

Justice William H. Rehnquist: Why did not you make a motion for production in the civil action?

Mr. Daniel L. Berman: We filed Your Honor a Rule 34 request in the civil action for these materials.

We proceeded in the California court where the criminal action had been filed because we believed under Rule 6(e) that, that was the court in which the petition had to be filed.

Rule 6(e) says that a court may grant disclosure of grand jury materials in connection with a judicial proceeding and there was a line of authority and it made sense to us to believe that the court with the primary responsibility to protect grand jury secrecy was the court charged with the supervision of the grand jury.

Justice William H. Rehnquist: You say you did a Rule 34 motion.

You regard your 6(e) proceeding in the Central District as independent if that I take?

Mr. Daniel L. Berman: We do and I think Your Honor in light of your other questions as I read Rule 6(e), Rule 6(e) expressly gives a quote in which a criminal action has been filed, the authority to entertain a petition for grand jury transcripts.

Justice William H. Rehnquist: Which sentence of Rule (e), is it?

Mr. Daniel L. Berman: Your Honor, it would --

Justice William H. Rehnquist: If I read it, it is just a rule is a 6(e) is a negative, it’s a prohibition that says it shall not be released unless.

Mr. Daniel L. Berman: I do not think that is true Your Honor.

Let me if I may read precisely what the rule says.

They may disclose matters occurring before the grand jury only when so directed by the Court preliminary to or in connection with a judicial proceeding and Your Honor that rule as we now see it, as this has been amended, expressly provides in subparagraph C, disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made when so directed by a court preliminary to or in connection with a judicial proceeding.

It is unauthorized in provision to grant disclosure.

Justice William H. Rehnquist: What happened to your Rule 34 motion in the Arizona court?

Mr. Daniel L. Berman: The Rule 34 motion they filed an objection Your Honor and we did not proceed under Rule 37 because we believe and there was again good authority for our belief that the court in Arizona could not grant that motion since it involve the secrecy of grand jury transcripts.

Justice Byron R. White: You mean the transcripts already in possession of the defendant?

Mr. Daniel L. Berman: Yes and let me say why I believe that Mr. Justice.

Justice Byron R. White: Well, certainly would not reach documents that they had, that they had given to the grand jury, those would not be submitted to the grand jury secrecy, will they?

Mr. Daniel L. Berman: Well, there is certainly a question whether the documents produced to grand jury are grand jury materials Your Honor.

Justice Byron R. White: You mean all that defendant has to do to make secret documents is to given to a grand jury?

Mr. Daniel L. Berman: No Your Honor, that’s not our position but our position was in our 6(e) petition.

We didn’t seek these documents or these materials from the defendant, we sought them from the government.

Justice Byron R. White: I know you did but your Rule 34 did talk out from the defendants.

Mr. Daniel L. Berman: It did Your Honor.

Justice Byron R. White: Well, why were those producible?

Why should not you appeal there?

Mr. Daniel L. Berman: Your Honor, I think the answer is we never called on a Rule 37 motion to enforce our Rule 34 demand in the civil action.

Chief Justice Warren E. Burger: In other words, you did not press it.

Mr. Daniel L. Berman: We did not press it in the Arizona courts, we pressed it where we thought it was proper to press it, in the California courts.

Justice John Paul Stevens: Suppose you had and the court had the rule against you on the grounds of these documents completely irrelevant to anything he can imagine would arise in this case.

Would you -- I suppose your position would be that you could still get them from the California court.

Mr. Daniel L. Berman: It is hard for me to imagine that a California court faced with that kind of ruling would have granted the motion but I do not think in fact that there was even a close question with regard to the relevancy of these documents Your Honor.

If you just simply compare the offense charge in indictment with the claims of price that you made in the civil complaint, they are virtually identical.

And in fact, there was no suggestion, absolutely no concrete suggestion.

When this petition was called on for hearing the California court, as to why the California court should not proceed.

I would like to say why --

Justice John Paul Stevens: What if you do not want in the -- who pays for the copies of the documents?

In the California court, suppose the judge -- say the judge rules in your favor, which he did, is that right?

Mr. Daniel L. Berman: He did Your Honor.

Justice John Paul Stevens: And what relief you would have got when the documents just been turned over to you, would you have had to copy them?

Mr. Daniel L. Berman: We would have had – we were granted the right to make one copy Your Honor and we were got those documents under protective order that only permitted their use or purposes of impeachment and refreshing recollection.

I think Your Honor that the reason we believe that the California court was the proper court is it is because that court that is going to be in the best position to consider whether there are special reasons for continued secrecy.

If there is no reason for continued secrecy, then we are not talking about any other realities of the policies behind grand jury secrecy but the court in which the criminal action is pending is the court that has access to the government employees that can know whether there are any particular risks of retaliation.

Justice William H. Rehnquist: Was there any realistic chance that Judge Gray was going to interview the government employees who testified in that grand jury proceeding that he had nothing to do with.

Mr. Daniel L. Berman: He certainly was Your Honor and they were in the room at the time the petition was argued.

Justice William H. Rehnquist: Then he could have been have questions?

Mr. Daniel L. Berman: Certainly, I mean the petition was addressed to the government, they filed a response saying that they had felt there have been a sufficient showing of particularized need and that they had no objection to the petition being granted but they were in the court room on the day the petition was argued and made their appearance, so he had access to --

Justice William H. Rehnquist: The employees, the witnesses were or the --

Mr. Daniel L. Berman: Excuse me, I mean this.

Justice William H. Rehnquist: I thought you said the employees or I take it now you meant the attorneys.

Mr. Daniel L. Berman: The prosecutors.

Justice William H. Rehnquist: Yeah.

Incidentally, have any of our cases ever held that anybody other than a defendant in the government’s case is entitled to production of grand jury testimony?

Mr. Daniel L. Berman: The only two cases, well, let me put it this way, the only cases that were before this court, Pittsburgh Plate, Dennis and Procter & Gamble all involved defendants.

The Dennis case and Pittsburgh Plate were criminal prosecution as that matter is now covered by the (Inaudible).

In Procter & Gamble, we weren’t talking about the situation.

The documents, the grand jury materials were sought in mass as a substitute for discovery and there had been no prior disclosure.

Our principle argument Your Honor is with regard to the merits is that there was no further reason for secrecy.

These documents have been disclosed, there was no risk of retaliation because they were produced under protective order that only permitted their use for purposes of impeachment or refreshing recollection.

There is absolutely no risk in terms of the interest protected by grand jury secrecy, in terms of the disclosure made and the necessity, the use of these documents was for the very purpose of particularized needs recognized by the court in Procter & Gamble.

That is the court said that examples of particularized need was the need for impeachment and refreshing recollection, it’s the need for effective cross-examination and that’s the only purpose to which the use of these documents could be put.

Independently, we had asked in the civil action and interrogatory asked these people, whether they had engaged any price related conversations between Phillips and Douglas and between their other defendants including Gulf, who was an indicted coconspirator, and they said we have -- we are not aware of any such conversations.

They have made those answers to interrogatories that they currently had the grand jury transcripts in their possession.

And I think we are clearly entitled to the opportunity to impeach those answers that is to show that in fact they had such conversations, the bill of particulars indicated that there were 11 direct conservations.

And secondly, to show that they knowingly concealed the information at the time when they had in their possession and they are called upon to provide an answer.

Justice John Paul Stevens: Could you explain to me why the restrictions were put on?

I assume that some of these grand jury witnesses were employees of defendants or were all of them.

Mr. Daniel L. Berman: The only disclosure, the only doc, transcripts involved were transcripts that were disclosed to the defendants pursuant to Rule 16 which will only relate to their employees or former employees.

Justice John Paul Stevens: And wouldn’t any of those employees state out of court statements be, wouldn’t they ever qualify as admissions of a defendant?

Mr. Daniel L. Berman: While these were only their statements in terms of the transcripts made to the grand jury.

Justice John Paul Stevens: Only made to the grand jury, but nevertheless they were statements of fact with respect to the conduct of the defendant.

Mr. Daniel L. Berman: Under Rule 801 Your Honor, there would be admissions under the federal rules of evidence.

Justice John Paul Stevens: Why would they restrict, why would not they be admissible in your case in chief as an admission of a defendant?

Mr. Daniel L. Berman: Well, I think the answer simply is that the court has an extra step to make sure that there was no abuse.

Justice John Paul Stevens: Did not you object to that or not?

Mr. Daniel L. Berman: No Your Honor, we did not.

I think that our position simply is if we have this information, we will be able to effectively conduct cross examination, in a sense we are going to have to as in any conspiracy case, prove this case out of adversary witnesses; that’s what is critical to us.

Justice John Paul Stevens: Well, I would have thought they will be much more used to you as a, you know, on unrestricted basis and an admissible in your case in chief.

Mr. Daniel L. Berman: I think I would say this Your Honor.

It certainly would be better if we can have them for all purposes but the (Inaudible), we really have to have them for us.

Justice Byron R. White: If you have curtailed on your Rule 34 motion, you would have had him on an unrestricted basis, I would suggest.

Mr. Daniel L. Berman: Your Honor, we have surmised in my part, but I strongly doubt it.

There was a healthy body of authority in the lower courts that where there was no further reason for secrecy.

The district courts use these protective orders as a proper means to reconcile the interests between secrecy and the search for the truth and this is proper balancing.

You do not get the documents and get a chance to show them to your client and have him run around the industry and tell them what was said about people or anything like that, that you can only use them for the critical business of the litigation.

Justice Byron R. White: Well, that may be -- as to whom, you can disclose them I would not that may be so but you should have put through them too in the trials in other matter.

You did not object to that restriction.

Mr. Daniel L. Berman: We did not object Your Honor, to the restriction that they be used only for the purposes of impeachment or refreshing recollection.

And as I said, it may be to our greater advantage to have them for other purposes, but I view this as the critical purpose.

I would like to make one observation.

In government litigation that ends in a nolo plea and a consent decree, this is likely to be the only benefits the private plaintiffs get out of government-related antitrust enforcement.

And the critical thing is to be able to use this information where you are having approved your case out of your advisory’s mouth to obtain truthful and accurate testimony.

That’s the real guts of the problem and that’s what we think demonstrated particularized need in this case.

Justice William H. Rehnquist: Well, what make sure that a private plaintiffs should get any sort of benefit out of a plea that ends in a nolo, out of a government case ends in a nolo plea?

Mr. Daniel L. Berman: Well, I think what we should get Your Honor is I think that we should get the benefit of truthful and accurate testimony.

That is if there is no reason, why these documents should remain secret that they have been disclosed to defendant, if they still have them in their possession, why should not we have the opportunity to use relevant evidence to make sure that they are furnishing truthful and accurate testimony in the course of the private antitrust litigation?

Justice Byron R. White: Isn’t it true Mr. Berman that the Clayton Act provides that if the plea of nolos entered by the defendants that protects them from the risk of the judgment being, prima facie evidence against them, and does not that indicate some expression of confessional policy to encourage defendants to plead nolo so that the government litigation won’t be useful against them.

Mr. Daniel L. Berman: I think Your Honor, of course what you actually summarized the Clayton Act, I don’t dispute that.

I think the answer to that is you can not use the government case then as a means of proving your case on a prima facie basis.

I do not think that justifies our prevention, the parties from using what was developed in the government case to determine the truth in the civil action.

And that is, we like to have the opportunity to use highly critical and relevant evidence for the purposes of cross-examination, that’s not the same thing as getting a leg up because somebody file an action and plead nolo, it depends what in fact they said and what their testimony is, that’s the normal business of civil litigation.

Chief Justice Warren E. Burger: But would you concede that the disclosure may have the tendency to discourage nolo pleas?

Mr. Daniel L. Berman: No, I would not Your Honor.

Chief Justice Warren E. Burger: Not.

Mr. Daniel L. Berman: I do not.

I think that if you start looking at the assumptions that would have to be made to say this would change anything, they are purely fancible.

What difference do they make?

The whole idea in grand jury secrecy is not to give the defendants some strategic litigating advantage, the idea of grand jury secrecy is to serve the institution of the grand jury and to protect that in a number of interests, most of those are done when the criminal proceedings over, but there is nothing and note this court has never indicated there is anything in having grand jury secrecy grant by party in adversarial advantage.

I think Your Honor I have used my 15 minutes of the arguments.

Argument of Sara S. Beale

Chief Justice Warren E. Burger: Mrs. Beale?

Ms Sara S. Beale: Mr. Chief Justice and may it please the court.

Although the United States does not oppose disclosure in this case, it has a vital interest as prosecutor in preserving the traditional secrecy of grand jury proceedings and we do not believe our position in this case is in anyway inconsistent with that interest.

As the briefs of the parties made clear, the federal rules of criminal procedure do not revamp the questions presented here, they do not designate which court should rule whether disclosure should be permitted nor do they specify what showing is required in order to warn disclosure in particular proceedings.

The government submits that the ultimate authority to disclose grand jury materials must trust in each case in the District Court in which the grand jury was convened and further that the grand jury court in this case properly permitted disclosure based upon a finding that there was a particularized need that outweighed the considerations in favor of continued secrecy.

It is petitioner’s contention that the Arizona civil court rather than the grand jury court was in the best position to make a certiorari and examination of particularized need.

And they urge that because the Arizona court and they urge that the Arizona court had jurisdiction to order disclosure because petitioners who were parties, over whom that court had jurisdiction had in their possession copies of the grand jury transcripts of the testimony given by their employees.

In our brief, we discuss what we believe to be the general reasons why the grand jury court and not the civil court should ultimately rule on a propriety of disclosure in each case, but we think then in this case, the court need not reach these more general considerations because the facts here make it clear that it would be inappropriate for the Arizona civil court to authorize disclosure by directing the petitioners here to reveal to respondents the copies of the grand jury transcripts that petitioners had in their possession.

Justice William H. Rehnquist: When we certainly have to reach the question of whether a separate civil action can be commenced in California by treble-damage plaintiffs.

Ms Sara S. Beale: Well, I think perhaps these facts here do not present a more general issue for reason that unfortunately is not discussed in the briefs of the parties.

In reviewing the records of the grand jury court, we discover that the order, the original order authorizing disclosure to the plaintiffs here --

Justice William H. Rehnquist: Mrs. Beale, you are amicus.

Ms Sara S. Beale: We are a party.

Justice William H. Rehnquist: Are you a party, I am sorry.

Ms Sara S. Beale: Yes we are.

Justice William H. Rehnquist: Go ahead.

Ms Sara S. Beale: Two petitioners did not commit them to retain the grand jury transcripts once they had tendered their plea of nolo contendere.

And that order would be violated by any use of the transcripts in the Arizona civil proceedings.

The California court’s order which was filed in July of 1975 authorized disclosure under Rule 16 of the Federal Rules of Criminal Procedure for the sole purpose of the preparation of petitioner’s defense to the criminal antitrust charges.

That order also required petitioners to keep the transcripts otherwise confidential and to return them to the Department of Justice when the criminal antitrust case was concluded.

That order has been neither amended nor modified in pertinent part.

Had the petitioners return the grand jury transcripts as they were required to do by the terms of the California court’s order, they would not have had those documents in their possession at the time that the respondents first requested discovery of those documents.

Justice William H. Rehnquist: What about the documents that they gave to the --

Ms Sara S. Beale: The documents as we understand it really are not the focus of the petition at this point.

They were discussed in the court below.

In fact --

Justice Byron R. White: Well, I will also ask you again, what about the documents?

Let us suppose they were -- to the extent they were involved in the case.

Ms Sara S. Beale: The documents were within the jurisdiction of the Arizona court and they were not I think subject to the same concerns of grand jury secrecy because they were thought to see what those documents said and not to learn what the grand jury was saying in that.

Justice William H. Rehnquist: How does the incident to which you refer create federal jurisdiction the California court.

Ms Sara S. Beale: Well, the California Rule 6 provides that as counsel read it that disclosure may be made preliminary to or in connection with judicial proceedings.

We think quite properly that respondents who wish to have disclosure made of the documents, which the court certainly retained jurisdiction over in the criminal case permitted the California court to authorize if it determined it was proper, that disclosure should be made by the government to find this.

Justice William H. Rehnquist: You don’t have to get in under 28 U.S.C. 1331 or 13 --

Ms Sara S. Beale: Well, we would view this as a continuation of the criminal proceedings and we have so suggested and that is one reason that we believe petitioners who are the defendants in that case are properly parties although there was no official order permitting them to intervene here.

We think that the criminal courts, jurisdiction over this case permitted it to take its own records at the request of a party who came before the court and ordered their disclosure under Rule 6.

Now of course if they have --

Justice William H. Rehnquist: At the request of a party who was in no way a party to the criminal action.

Ms Sara S. Beale: Well, it was not until it came before the court and filed a petition requesting disclosure which we would think is authorized by Rule 6 and Rule 6 seems in our view to clearly permit that.

Chief Justice Warren E. Burger: But it is clear that the Federal Rules of Criminal Procedure do not add to in order to attract from federal jurisdiction, do they?

Ms Sara S. Beale: Well, I do not know that I would want to make such a broad statement.

I would think that it is a statutory matter and that they may help in designing what causes of action or what authority the court might exercise but it does seem clear that the criminal case was properly in the California court, there is no question of that.

Chief Justice Warren E. Burger: People who have requested this grand jury material were not parties to the criminal case, were they?

Ms Sara S. Beale: They were not parties to the original criminal case, that’s correct.

There were a number of defendants including petitioners and not including respondents who filed disclosure.

But they came in and requested from the custodian of the documents that they be turned over and showed what we view required standard of particularized need and that the considerations of secrecy were not outweighed.

In addition, in view of the fact of California court’s order, specifically limited the use of the transcripts to the preparation of the defense in a criminal trial.

We think it is clear to hand the Arizona court purported to permit the use of those copies of the documents for in the civil case that could not have done so without first modifying the restrictions of the California courts order.

It seems crystal clear to us that kind of interference with the order of the California court’s order could not possibly be proper and that this case is certainly not one where in the civil court could properly have exercised jurisdiction.

Once the California court look in --

Justice Harry A. Blackmun: Isn’t there an intermediate position though, even if you are quite correct that the Arizona court could not really affect the release of the grand jury minutes without the cooperation of the California court.

The intermediate position is why should not the California court be asked to release them to the extent that the Arizona court finds them relevant and otherwise disposable under Rule 34 are in a deposition?

Ms Sara S. Beale: Well, I think in a proper case that would be possible either for the criminal court to conclude that the reasons of secrecy might permit disclosure but that it cannot evaluate particularized need and refer the matter over to the civil court or I will turn it to the civil court --

Justice Harry A. Blackmun: Because the criminal court might order the release of documents that were submitted to the grand jury that the court in Arizona would never have order turned over.

Ms Sara S. Beale: I think that’s right.

In a closed case, the criminal court may well conclude that the grand jury court that it is not able to ascertain whether there will be a particularized need.

Justice Harry A. Blackmun: That's what I am suggesting, why should not it be the general rule that the California court or the criminal court defer, just lift the secrecy order to the extent that --

Ms Sara S. Beale: Well, we do think that it is very important that the court that has familiarity with the records in the criminal case with the particular concerns, the court in which the local prosecutors have appeared and the only single court, which could resolve all of these matters should in the first instance and must ultimately in every instance be consulted and give its approval for disclosure.

Now, it may well be the case.

Justice William H. Rehnquist: Well Mrs. Beale, you are talking about a court which has probably 20 judges and a motion which comes up simply on the motion docket and so you cannot mean that the judge who passes on this motion is going to have intimate familiarity with the past history of criminal case.

Ms Sara S. Beale: Well, I think that is quite right, in particular cases that will vary how much familiarity the individual judge has but one of the concerns that we have is how easy will it be for the court to determine what the most important considerations in favor of secrecy or continued secrecy are.

If it’s the court in which the criminal proceedings have been conducted where the grand jury have, the entire record will be available there, not just bits and pieces, not just the transcripts which these petitioners happened to have disclosed to them, which may not give the whole picture.

The local prosecutors who have conducted the grand jury who will know where their further proceedings are contemplated, who will know if particular witnesses were extremely reluctant and feared that their statements might be unnecessarily made available to certain parties, all that information is most readily available in the court where the grand jury proceedings were conducted.

And we believe that in many cases and this case is a very good example of the ability of the grand jury court to determine has the person requesting disclosure comes forward with a sufficient showing of particularized need.

It is not a case we think where it is the court’s duty to go through all of the records and determine whether there might be some conceivable way in which the documents can be used.

The person seeking disclosure, the respondents here, came for we believe with quite a plain showing of particularized need and the government which despite petitioner’s disagreement is indeed concerned with the question whether there is a continued need for secrecy, took into account not only the question whether they had been showing a particularized need, but whether there is a reason for continued secrecy.

Justice William H. Rehnquist: But under your theory of the case, the treble-damages plaintiff come in twenty years after the nolo plea was entered and the criminal case was entered – criminal case was ended and ask for these things.

And then, whatever judge happens to be on the bench at the time, whatever assistant US attorney happens to be sent over, that is not going to be a very accurate reflection, is it?

Ms Sara S. Beale: Well, I think then we have to determine what proceeding should be the norm and we don’t disagree that in cases where the criminal court determines that it cannot make by itself a determination and why this sufficient showing of need has been made that it might refer the matter over to the civil court.

We think this is not such a case, and we think that a rule of bifurcation go first to the criminal court, then to the civil court, a setting line up is a necessity in cases where the criminal court is perfectly well able to determine when the disclosure can be made would simply stretch these proceedings out in ways judicial resources.

Justice Lewis F. Powell: I know but the government’s position, I take it as that there is not much of a burden on the fellow who asked for it, he merely has to show some kind of relevance to these treble-damage case.

Ms Sara S. Beale: Well, I think that, we do feel that --

Justice Lewis F. Powell: I understand your position, that is how particularized need amounts to.

Ms Sara S. Beale: Well, I don’t think that is quite our opposition, although I will say that we think the less --

Justice Lewis F. Powell: What else does he need to show, tell me in a few words?

Ms Sara S. Beale: I think that I would say that what was shown here is far more than relevance.

If one can show that --

Justice Lewis F. Powell: That is not what I asked you, I just asked you what your position is, what do you think particularized need is?

Ms Sara S. Beale: I think it is more than simply relevance.

Justice William H. Rehnquist: What else is there?U

Chief Justice Warren E. Burger: Can’t get it anywhere else?

Ms Sara S. Beale: Pardon me.

Chief Justice Warren E. Burger: That you can’t get it anywhere else.

Ms Sara S. Beale: Well, I think if it is relevant and you can’t get it anywhere else, that is certainly particularized need but whether --

Justice Byron R. White: Now we want to pursue the answer to the question.

What else besides relevance does the government agree must be shown to the criminal --

Ms Sara S. Beale: Well, I think it is difficult to formulate.

The courts use a lot of different terms, compelling need, inability to get the materials outwear, I don’t know that.

Justice Byron R. White: So you haven’t really formulated your own standard for this, isn’t that?

Ms Sara S. Beale: I don’t know that we can formulate it anymore clearly than it.

'We’ve found the standards in the court’s prior cases to be satisfactory and parties do disagree in giving cases the application of those standards particularized need, compelling need to a given case.

We think that --

Justice Harry A. Blackmun: Well, as I read your brief, that has been the -- that particularized need in the context of a treble-damage suit by a plaintiff who wants the grand jury minutes; it is enough to show relevance.

Ms Sara S. Beale: The plaintiffs here and the showing that we found sufficient was the showing that the answers that the defendants had made in different context.

Petitioners here were conflicting and that the best way of testing their statements and to either refresh the recollection of your witnesses or to possibly impeach statements which might be untruthful would be by showing inconsistency of those statements under or before the grand jury.

We think that, that goes beyond relevance.

Justice Thurgood Marshall: And between the two courts.

Ms Sara S. Beale: I am sorry.

Justice Thurgood Marshall: As between the two courts.

Isn’t it true that where the nolo contendere court, all they are custodians.

Once the case is over as a matter of fact, they might not even be there, they might be in some depository, so why did they have any greater interest in this than the court that is in the trial of the suit, the civil suit?

Ms Sara S. Beale: Well, we do think that the best place for all the considerations of secrecy to be taken to account is the court where the grand jury sat, where the criminal proceedings if any took place, where the local prosecutors are available, where all of the criminal records are available, all of the criminal records are not available in a civil district and indeed there may be many such civil districts, where materials --

Justice Thurgood Marshall: Well, I don’t know but I am sure that all of the records of the trials in the Southern District in New York are not in that building, because the building is just not that big.

So they are in a depository at some place while assuming they are in the depository at St. Louis.

Where do they get any more expertise than the judges on trial of the case?

Ms Sara S. Beale: Well, I think that our only answer would have to be or our best answer would be that there is a possibility for those judges to be familiar with the local circumstances, with the parties to have before them the prosecutor and indeed I suppose that one could well first sent from the repository to the Arizona court.

Then to the Montana court, then to another court, but we think it more official --

Justice Thurgood Marshall: Usually, isn’t the "prosecute" of the antitrust case after the nolo, isn't he now back in Washington?

Ms Sara S. Beale: Well, in fact there is a local office at the --

Justice Thurgood Marshall: Is he now here in the Washington?

Ms Sara S. Beale: No sir, there is a local office at the antitrust division in Los Angeles and that was the office that handle this case.

So in fact the personnel of that office were and the person in charge of that case was the one who came to this hearing on the disclosure here, but certainly in many --

Justice Thurgood Marshall: But isn’t true that all antitrust cases are under the immediate supervision of the Attorney General of the United States?

Ms Sara S. Beale: Well, I would not disagree with that for a moment.

Justice Thurgood Marshall: And he is in Washington?

Ms Sara S. Beale: Usually, often.

I see my time is up, so if there are no further questions.

Rebuttal of Max L. Gillam

Chief Justice Warren E. Burger: Mr. Gillam.

Mr. Max L. Gillam: May it please the court.

I hope I will not be required to utilize the time I have remaining.

Mr. Justice White and Mr. Justice Marshall, I believe the weakness of the government’s position in this regard.

Historically, the better practice has been for the trial judge to believe that he would need the grand jury materials and to ask the grand jury district judge to forward them to him.

In Baker versus United States Steel, pending to the District of Connecticut, Judge Newman came with the conclusion that portions of the grand jury materials might be relevant and he requested Judge White who was the titular custodian of those documents to transmit the grand jury materials to the District of Connecticut so that Judge Newman could review them and see whether there was a particularized need for the disclosure.

Justice Byron R. White: What is your standard on particularized need?

Mr. Max L. Gillam: My standard on particularized need sir is that it must be relevant and useful to litigation.

Justice Byron R. White: Is that it?

Mr. Max L. Gillam: No sir.

Justice Byron R. White: No, alrightr.

Mr. Max L. Gillam: That’s for the first point.

The second one is that the failure to obtain it would render an injustice of some kind such as the materials not being available anywhere else.

And the third matter is that there is a particularized need in this litigation to refresh the recollection of a witness who has said he doesn’t remember now but when he has transcript, when he appeared before the grand jury four years ago, his memory was a lot better and he was sure that if he could look at that transcript, it would refresh his recollection.

Justice Byron R. White: You would say that in no case would just the plaintiff’s desire to save himself expands the time and trouble of deposing those same witnesses would be enough?

Mr. Max L. Gillam: Yes sir, and may I say that’s apart.

Justice Byron R. White: Yes sir, you mean, it would never be enough?

Mr. Max L. Gillam: It would never be enough.

It would never be enough, but please don’t you see how these two issues are hand and glove.

You can’t decide one without deciding the other.

If there is nothing to particularized need, who cares what court makes a determination.

Justice Byron R. White: I understand that you would make the plaintiff, you would say the plaintiff must be taking a deposition and find out that he really does need the materials?

Mr. Max L. Gillam: That’s highly likely Your Honor.

As a matter of fact, I cannot envision a situation whereas here in advanced of the taking of any depositions or any testimony, there would be a particularized need for a wholesale disclosure of a grand jury transcript to enable the plaintiff to refresh the recollection of a witness who has not yet indicated, he need is recollection refresh or to impeach him when there is no evidence that at this stage, there was any impeaching material in the grand jury transcript.

These are one thing, this particularized need question and which court should do the ruling, they are not different.

Justice Byron R. White: Mr. Gillam, let me ask you one question just makes just a little difference in some cases and Mr. Beale adverted to, -- is it correct that there was an order outstanding that required you to return the transcripts?

Mr. Max L. Gillam: Yes sir.

Justice Byron R. White: And but did you comply to that order?

Mr. Max L. Gillam: They had not been returned at the time the Rule 34 request was made for production in Arizona.

So we discovered at that time and I think the government did that we had not returned them at the close of the criminal case.

Justice Byron R. White: When they will say, no we thought it was very important once the case (Voice Overlap).

Mr. Max L. Gillam: No sir, we were embroiled so in the Tunney Act hearing in an attempt to get a consent judgment in the civil companion case, where the charges of cover-up and what have you that I think it just slipped the government’s mind and it slipped ours.

Justice Byron R. White: It seems to me it might make a difference if the time (Inaudible) take depositions if the witness has a lapse in memory repeatedly within that particularized need, something like that.

It might make a difference, so if you are able to prepare the witness with the grand jury transcript, perhaps in that case, it was somewhat a little bit on one-sided to say that they should not had access to it.

Mr. Max L. Gillam: Yes sir.

Justice Byron R. White: But that is not true here now as I understand, you would be --

Mr. Max L. Gillam: Well, it’s not true here now because we don’t know what witnesses are going to be at the time the District Court rule.

We didn’t know, he didn’t know, what witnesses would be deposed, whether they would ever be deposed, whether they would ever testify?

Justice Byron R. White: I suppose, part of it is, one witness leads to another and the government finds out which people are involved and then they know which witnesses to interrogate and the plaintiff may not know those names when he starts out.

Mr. Max L. Gillam: Yes sir but please I have not succeeded in at least one aspect of what I am attempting to do today.

This -- the record shows that this antitrust investigation was like almost all antitrust investigation.

It considered exchange agreements, it considered alleged collusive restrictions in crude oil purchases, it considered alleged collusions in cross-hauling, it considered retail price fixing none of which was involved in the indictment.

The disclosure of an entire transcript of a witness does indeed as Mr. Justice Brennan stated in Pittsburg Glass, disclosed derogatory information presented to a grand jury against an accused who has not been indicted for this.

Justice Byron R. White: What you are saying is that part of the transcript would fairly clearly be irrelevant, or partly irrelevant.

Mr. Max L. Gillam: Yes sir.

Justice Byron R. White: And how do you find out that --

Mr. Max L. Gillam: The exact way that Judge Newman went about it in Baker versus United State Steel.

Justice Byron R. White: Had the trial judge read the transcript?

Mr. Max L. Gillam: No, no, he had the criminal judge sent him -- I am sorry, Judge Newman was the trial judge, sent him the transcript and he went through it and excised those portions which were highly irrelevant.

Judge Clary in City of Philadelphia versus Westinghouse directed the copies of the transcripts go out to the deposition judges in the varying districts so that they could determine what portions of these should be disclosed, but he himself with a key witness came to the conclusion that, that particular witness’s transcript should not go out of his desk.

He was the trial judge.

Justice Byron R. White: Mr. Gillam, in this case, you objected any disclosure, did you also alternatively suggested the trial judge that he should edit the transcripts and edit out the material that you would say was prejudicial.

Mr. Max L. Gillam: No sir, we have never had an opportunity to discuss this particular thing with the trial judge.

Our only argument in --

Justice Byron R. White: I mean the trial judge in San Francisco whoever was in California.

Mr. Max L. Gillam: That’s right, the criminal duty judge?

Justice Byron R. White: Yeah.

Mr. Max L. Gillam: No sir.

We did not suggest to him that he go through an excise out irrelevant portions that would have been and exercise in futility.

Justice Byron R. White: Well, it is your submission that that function is for the judge in Arizona.

Mr. Max L. Gillam: Yes sir, because he is the one, he has assigned to that case and he knows what’s relevant to it.

The criminal duty judge in Los Angeles would not be in a position to read the transcript.

Justice Potter Stewart: If I can interrupt you Mr. Gillam, this question was asked and you answered it I think, but I did not get the answer.

What happened to the Rule 34 request in this case?

Mr. Max L. Gillam: A Rule 34 request is not self-executing.

You request documents, objection was made to the production of the grand jury transcripts and documents on the grounds of relevancy and related grounds.

The plaintiffs Petrol Stops Gas-A-Tron did not elect to press with a Rule 37 motion, which is required under those circumstances.

Justice Potter Stewart: So you are not going to force that.

Mr. Max L. Gillam: Sir, yes, that’s correct.

Justice Potter Stewart: And so that just --

Mr. Max L. Gillam: It is sitting there.

Justice Potter Stewart: Never was result.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.