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in-re-application-of-state-of-new-jersey-for-grand-jury-records-united , 706 F.2d 1533 ( 1983 )


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  • 706 F.2d 1533

    In re Application of STATE OF NEW JERSEY FOR GRAND JURY
    RECORDS, UNITED STATES DEPARTMENT OF JUSTICE, FILE
    NO. 60-23-45.
    STATE of NEW JERSEY, Petitioner-Appellee,*
    v.
    UNITED STATES of America,* Respondent-Appellee,
    and
    ABC Records, Inc., et al., Intervenors-Appellants.

    No. 81-5953.

    United States Court of Appeals,
    Ninth Circuit.

    Submission Deferred Without

    Oral Argument Jan. 3, 1983.
    Decided May 31, 1983.

    Gerard C. Sims, Jr., Trenton, N.J., Trischa J. O'Hanlon, Los Angeles, Cal., Jay L. Himes, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Peter Shack, Los Angeles, Cal., Craig R. Browne, Boston, Mass., for petitioner-appellee.

    John G. Niles, Charles P. Diamond, O'Melveny & Myers, Charles M. Stern, Wyman, Bautzer, Rothman, Kuchel & Silbert, Thomas P. Lambert, Mitchell, Silberberg & Knupp, John J. Lyons, Latham & Watkins, Los Angeles, Cal., for intervenors-appellants.

    Appeal from the United States District Court for the Central District of California; Lawrence T. Lydick, Judge.

    1

    Before ANDERSON and FARRIS, Circuit Judges, and SOLOMON,** Senior District Judge.ORDER

    2

    Submission of this appeal was deferred pending the decision of the United States Supreme Court in Illinois v. Abbott & Associates, Inc., et al., 659 F.2d 800 (7th Cir.1981), aff'd, --- U.S. ----, 103 S. Ct. 1356, 75 L. Ed. 2d 281, 1983.

    3

    Pursuant to that decision, which overruled our contrary holding in United States v. B.F. Goodrich Co., 619 F.2d 798 (9th Cir.1980), upon which the district court relied in this case, and based upon the joint request of appellants and appellees, the decision of the district court is REVERSED.

    4

    This proceeding is remanded to the district court with instructions to (1) conduct further proceedings, if appropriate, to determine whether or not a "particularized need" exists for the closed antitrust files, or (2) to dismiss without prejudice to the filing of a subsequent proceeding for disclosure, pursuant to Rule 6(e), Fed.R.Crim.P., upon a showing of compelling and particularized need, and (3) any further proceedings or dismissal shall include appropriate terms and conditions relating to the preservation of certain documents produced for the grand jury by various intervenors and by two other parties who were not notified of the commencement of this proceeding in the district court.

    5

    Each side shall bear its own costs.

    6

    The mandate shall issue forthwith.

    7

    IT IS SO ORDERED.

    *

    The United States is only a nominal party on this appeal

    **

    The Honorable Gus J. Solomon, Senior United States District Judge, District of Oregon, sitting by designation