Disclosure of Grand Jury Materials to Attorneys in the Civil Division for Use in Civil Proceedings ( 1979 )

January 26, 1979
79-9 MEMORANDUM OPINION FOR ASSISTANT
ATTORNEY GENERAL, CIVIL DIVISION
Grand Jury—Disclosure—Rule 6(e), Federal Rules
of Criminal Procedure
You have requested our opinion on the question whether grand jury
materials or information derived from grand jury materials may be
disclosed to attorneys in the Civil Division for use in civil proceedings, ab­
sent court order. As you note, this is an im portant question, since grand
jury investigations often produce information or evidence that is useful in
civil cases.
Rule 6(e) o f the Federal Rules o f Criminal Procedure forbids the dis­
closure o f grand jury materials1 except in certain circumstances. The rule
recognizes four exceptions to this general prohibition. Disclosure o f grand
jury materials may be made pursuant to court order (1) preliminary to or
in connection with a judicial proceeding, or (2) at the request o f the de­
fendant upon showing that grounds may exist for dismissal of the indict­
ment (see Rule 6(e)(3)(C)(i) and (ii)); and absent court order, disclosure
may be made (3) to Government personnel deemed necessary by an attorney
for the Government to assist the attorney in the performance o f his duty to
enforce Federal criminal law, or (4) to an attorney for the Government for
use in the performance o f his duty (see Rule 6(e)(3)(A)(i) and (ii)).
Your question implicates the last o f these exceptions, the exception for
disclosure to an attorney for the Government for use in the performance of
his duty. In a nutshell, the issue is whether a disclosure o f grand jury mate­
rials to an attorney in the Civil Division for use in a civil case is a disclosure
to “ an attorney for the Government for use in the performance o f such at­
torney’s duty” within the meaning o f subsection (3)(A)(i) o f Rule 6(e).
1 We use the phrase “ grand jury materials” as shorthand for the statutory phrase “ matters
occurring before the grand ju ry .” The Rule prohibits the disclosure o f “ matters occurring
before the grand ju ry .” See, United States v. Interstate Dress Carriers, Inc., 280 F. (2d) 52
(1960).
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Rule 6(e) has been amended recently, but the language of subsection
(3)(A)(i) is identical to language that was contained in the old Rule. Like
the new Rule, the old Rule permitted disclosures to be made to attorneys
for the Government for use in the perform ance o f their duties. The old
Rule was interpreted by this Office as permitting Department o f Justice at­
torneys to use grand jury materials for civil purposes absent court order,2
and the courts so held.5
We know o f no reason to support that the recent amendment to the Rule
was intended to change this result. The relevant language was retained
without modification, and the legislative history contains no suggestion of
a contrary intention. We have been referred to a recent decision in the
Fifth Circuit that confirms this conclusion. See, In re Grand Jury,
Miscellaneous No. 979, 583 F. (2d) 128 (5th Cir., Oct. 18, 1978). In our
opinion, Rule 6(e)(3)(A)(i) permits grand jury materials or information
derived from them to be disclosed to attorneys in the civil division for use
in civil proceedings without court order.
We would like to add a word o f caution. To some degree, the rule of
secrecy is designed to prom ote the efficiency o f the grand jury, but the
Rule is also designed to prevent this powerful and intrusive process from
being misused. The Rule permits intradepartm ental disclosures for civil
purposes, but we must remember that whenever grand jury materials are
disclosed for civil purposes, they are disclosed for purposes that could not,
under our law, justify the use o f the grand jury in the first instance. For
this reason among others, whenever their permission is required, the
courts are often reluctant to permit civil disclosures to be made during the
pendency o f a grand jury investigation. Plainly, the appearance and the
possibility o f misuse are greatest if a civil case can proceed simultaneously
with a criminal investigation, drawing life from inform ation or evidence
developed in the grand jury room . See, e.g., Capitol Indemnity Corp. v.
First Minn. Const. Co., 405 F. Supp. 929 (1975).
We think that the problem o f contem poraneous disclosure is substantial
even in the context o f intradepartm ental disclosures. There is no rule o f law
that would require a civil disclosure within the Department to be deferred
until the relevant criminal investigation had been completed; but unless
there is a genuine need for disclosure during the pendency o f the grand jury
investigation, it might well be the better practice to forestall disclosure until
the grand jury is discharged. This is the course o f prudence. Most o f the
reasons for the rule o f secrecy fall away once the grand jury is discharged,
see, Grand Jury, Miscellaneous No. 979, supra; and claims o f misuse are
easier to rebut if there is no obvious risk that the path o f a grand jury in­
vestigation was directed by civil concerns. That risk diminishes if the rule of
secrecy is not suspended until after the grand ju ry ’s work is done.
1 See M em orandum dated December 21, 1961, to the Deputy A ttorney General.
1 See. e.g., United States v. Proctor & Gamble Co., 356 U .S. 677 (1958).
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Where there is a genuine need for grand jury material before the grand
jury’s investigation has reached its conclusion, you may wish to consider
taking steps to assure that there will be no foundation for making the
claim that the civil interests o f the Government shaped the direction o f the
criminal grand jury investigation. This could be done, for instance, by
restricting the civil attorneys in their contacts with the attorneys handling
the grand jury investigation and limiting the civil attorneys to performing
the more passive role o f simply receiving requested information.
L arry A. H a m m o nd
D eputy Assistant A ttorney General
Office o f Legal Counsel
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