United States of America, Appellee, v. Archer-daniels-midland Company and Nabisco Brands, Inc., Appellants, 785 F.2d 206 (8th Cir. 1986)

This appeal arises from a civil antitrust suit brought by the Government against the Archer-Daniels-Midland Company (ADM) and Nabisco Brands, Inc. (Nabisco). ADM and Nabisco moved for dismissal, or for alternative relief, on the ground that the Government violated Fed. R. Crim. P. 6(e), the rule protecting the secrecy of grand jury proceedings. The district court¹  denied their motion and this appeal followed. ADM and Nabisco contend that the Government violated Fed. R. Crim. P. 6(e) by assigning attorneys who participated in a prior grand jury investigation to this subsequent civil litigation without first obtaining a court order. In addition, ADM and Nabisco argue that Fed. R. Crim. P. 6(e) has been violated because the attorneys working on this case have continuously possessed grand jury documents in their personal files. The Government submits that the district court order is a nonappealable interlocutory order. We hold that the district court order is appealable pursuant to the collateral order doctrine, that the assignment of attorneys in this case does not constitute, by itself, a violation of Fed. R. Crim. P. 6(e), and that there has been no showing that grand jury documents have been used in violation of Fed. R. Crim. P. 6(e). Accordingly, we affirm the district court's ruling.

I. BACKGROUND.

In 1979, a federal grand jury was impaneled in the Northern District of California to investigate possible price-fixing by companies engaged in corn wet milling. The grand jury questioned many witnesses and collected approximately 700,000 documents, covering a time period from 1973 to 1980. Both ADM and Nabisco produced documents under subpoena. Those documents, and all others produced by the grand jury, came under protection and control of the Department of Justice in Washington, D.C., as custodian.²  The grand jury concluded its investigation in late 1980 without issuing any indictments.

On June 12, 1982, Nabisco leased its corn wet milling facilities to ADM. As a result, ADM became the nation's largest manufacturer of high fructose corn syrup. In July of 1982, the Antitrust Division of the Justice Department began a civil investigation to determine whether the lease agreement amounted to an acquisition or merger in violation of section 1 of the Sherman Act, 15 U.S.C. §, 1 and section 7 of the Clayton Act, 15 U.S.C. § 18. Some of the attorneys assigned to the investigation had previously worked on the grand jury price-fixing investigation. On December 14, 1982, the Government filed a civil antitrust complaint against ADM and Nabisco.

In December 1983, ADM and Nabisco moved to dismiss the complaint without prejudice on the ground that the Government violated Fed. R. Crim. P. 6(e) (2), by assigning attorneys who participated in the prior grand jury investigation to this subsequent civil litigation without first obtaining a court order.³  On March 29, 1984, the district court denied the motion, concluding that no evidence before the court established that any improper disclosure had occurred. On April 11, 1984, ADM and Nabisco moved for a clarification of the district court order and also for a preliminary injunction barring any disclosure of grand jury materials by or to Government counsel (or their assistants) except pursuant to a Rule 6(e) (3) (C) order, and barring any further participation in this case by Government counsel and legal staff who at the time had access to such materials. On April 20, 1984, the district court denied the motion for clarification of its prior order, yet did enter limited injunctive relief. The court said:

[T]he plaintiff and each attorney or assistant to such attorney representing the plaintiff in this case and to whom no grand jury material has previously been disclosed or made accessible are hereby enjoined and restrained from requesting, receiving, reviewing, reading, or otherwise obtaining any grand jury material except as expressly permitted by a Court under Rule 6(e) (3) (C) of the Federal Rules of Criminal Procedure, and each government attorney, including any assistant to such attorney, who represents plaintiff in this case and to whom any grand jury material has previously been disclosed, or made accessible, whether authorized by law or not, is hereby enjoined and restrained from disclosing or making accessible any grand jury material to any government attorney or assistant who is prohibited from receiving such grand jury material under the provisions of the preceding portion of this preliminary injunctive order.

In September 1984, after deposing five present and former Government attorneys and staff members, ADM and Nabisco filed a "renewed" motion in which they requested dismissal of the Government's complaint, or various forms of alternative relief, again on the ground that the Government violated Fed. R. Crim. P. 6(e).⁴  On November 6, 1984, the district court denied this motion.⁵ 

Thereafter, on January 7, 1985, ADM and Nabisco appealed. These appellants contend that the Government violated Fed. R. Crim. P. 6(e) by assigning attorneys who participated in the prior grand jury investigation to this subsequent civil litigation without first obtaining a court order. Furthermore, they charge violations of Fed. R. Crim. P. 6(e) because the attorneys working on this case have continuously possessed grand jury documents in their personal files. ADM and Nabisco base their argument on the Supreme Court's interpretation of Fed. R. Crim. P. 6(e) in United States v. Sells Engineering, Inc., 463 U.S. 418, 103 S. Ct. 3133, 77 L. Ed. 2d 743 (1983). The Government argues that the November 6, 1984, district court order amounts to a nonappealable interlocutory order. The Government further argues that if this court should reach the merits, then it should conclude that Fed. R. Crim. P. 6(e) and the Sells decision do not prohibit the assignment to this case of attorneys who previously conducted the grand jury investigation, and that there has been no showing that grand jury documents have been used in violation of Fed. R. Crim. P. 6(e).

II. DISCUSSION.

A. Appealability.

We first address the Government's contention that this interlocutory appeal should be dismissed for lack of appellate jurisdiction. ADM and Nabisco argue, to the contrary, that the November 6, 1984, district court order may be appealed under the collateral order doctrine. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S. Ct. 1221, 1225-26, 93 L. Ed. 1528 (1949). We agree.⁶ 

The collateral order doctrine represents a "narrow exception to the requirement that all appeals under Sec. 1291 await final judgment on the merits." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S. Ct. 669, 673, 66 L. Ed. 2d 571 (1981). Its "reach is limited to trial court orders affecting rights that will be irretrievably lost in the absence of an immediate appeal." Richardson-Merrell, Inc. v. Koller, --- U.S. ----, 105 S. Ct. 2757, 2761, 86 L. Ed. 2d 340 (1985) (citations omitted). To fall within this exception, a district court order must at a minimum "conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Id. (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S. Ct. 2454, 2457, 57 L. Ed. 2d 351 (1978)). We believe that the district court order in issue meets this test.

The order conclusively determined that the assignment of attorneys who participated in previous grand jury proceedings to this civil case did not constitute a violation of Fed. R. Crim. P. 6(e) (2). It thereby resolved an important issue completely separate from the merits of the action. Furthermore, because the district court order concerns the secrecy of grand jury proceedings, it is effectively unreviewable on appeal from a final judgment. Any harm to ADM's and Nabisco's interests which are sought to be protected by keeping grand jury proceedings secret cannot be undone by a later reversal of the district court order.

The Supreme Court recently held that an order denying a motion to disqualify the opposing party's counsel in a civil case may not be appealed under the collateral order doctrine because such an order can be effectively reviewed on appeal from a final judgment. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. at 377, 101 S. Ct. at 675. We believe, however, that the present case is qualitatively different from Firestone. As discussed above, the district court in this case did more than simply deny a motion to disqualify counsel. The district court order concerns the secrecy of grand jury proceedings. Therefore, without immediate review, ADM and Nabisco face the possibility of losing "the legal and practical value" of the rights they have asserted. In Firestone, the Supreme Court indicated that in such situations an appeal may be allowed under the collateral order doctrine. 449 U.S. at 377, 101 S. Ct. at 675. See also Mitchell v. Forsyth, --- U.S. ----, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985) (district court's denial of a claim of qualified immunity is immediately appealable because otherwise the defendant's right to be immune from suit would be effectively lost); Evans v. Dillahunty, 711 F.2d 828 (8th Cir. 1983). Accordingly, we conclude that we have jurisdiction over this appeal.⁷ 

B. Alleged Fed. R. Crim. P. 6(e) Violations.

ADM and Nabisco first contend that Fed. R. Crim. P. 6(e) and Sells prohibit the assignment of Justice Department attorneys who participated in the prior grand jury investigation to this subsequent civil litigation without first obtaining a court order. We disagree.

Rule 6(e) of the Federal Rules of Criminal Procedure codifies the traditional rule of grand jury secrecy.⁸  It provides that grand jurors, Government attorneys and their assistants, and other grand jury personnel are forbidden from disclosing matters occurring before the grand jury. There are several exceptions to this nondisclosure rule. Under Rule 6(e) (3) (A) (i), disclosure may be made without a court order to "an attorney for the government for use in the performance of such attorney's duty." In addition, Rule 6(e) (3) (C) (i) permits courts to order disclosure.

In United States v. Sells Engineering, Inc., 463 U.S. 418, 103 S. Ct. 3133, 77 L. Ed. 2d 743 (1983), the Supreme Court addressed the question of whether attorneys for the Civil Division of the Justice Department may obtain automatic 6(e) (3) (A) (i) disclosure of grand jury materials, compiled with the assistance of other Justice Department attorneys, for the purpose of preparing and pursuing a civil suit, or whether they must seek a 6(e) (3) (C) (i) court order for access. The Court held that automatic 6(e) (3) (A) (i) disclosure is limited to use by those attorneys who conduct the criminal matters to which the materials pertain. Id. at 427, 103 S. Ct. at 3139. Therefore, Civil Division attorneys may obtain access to grand jury materials, prepared with the assistance of other Justice Department attorneys, for use in a civil suit only by moving for court-ordered disclosure under Rule 6(e) (3) (C) (i) and by showing the particularized need required by that Rule. Id. at 420, 103 S. Ct. at 3136.⁹ 

In the present case, the threshold question is whether the assignment to a civil case of the same attorneys who participated in a prior grand jury investigation even constitutes disclosure of matters that occurred before the grand jury. We hold that it does not. For there to be a disclosure, grand jury matters must be disclosed to someone. We do not believe that an attorney's recollection of facts learned from his prior grand jury participation can be considered disclosure so as to invoke the prohibition of Rule 6(e).

ADM's and Nabisco's argument essentially comes down to saying that Government attorneys who participate in a grand jury proceeding must be prohibited from litigating a subsequent civil case involving companies who had been part of the grand jury investigation. We do not believe that Rule 6(e), as interpreted by Sells, can be read to reach that far.¹⁰ 

Sells concerned the use of grand jury materials by Civil Division attorneys in the Justice Department who had not participated in the grand jury proceedings. In that case, in other words, matters occurring before a grand jury were disclosed by attorneys who participated in the grand jury to attorneys who had not. Here, on the other hand, the same attorneys who participated in the grand jury proceedings were assigned to the subsequent civil litigation. Sells simply does not support ADM's and Nabisco's argument that such assignment constitutes disclosure of grand jury matters in violation of Rule 6(e).¹¹  In the Sells case there were two sets of attorneys, and a disclosure occurred, whereas in the present case there is only one set of attorneys, and no disclosure. Furthermore, our decision is strengthened by the fact that the civil antitrust suit brought by the Government against ADM and Nabisco alleging an unlawful acquisition or merger is a distinct and separate action from the prior grand jury investigation for price-fixing. In Sells, grand jury materials were being sought for use in the civil phase of the same matter that had been investigated by the grand jury, that is not the case here. Accordingly, we affirm the district court's ruling that the assignment of Justice Department attorneys who participated in a prior grand jury investigation to this current civil case, without a court order, does not violate Rule 6(e).

ADM and Nabisco also contend that the Justice Department attorneys prosecuting this civil case have continuously possessed grand jury documents in their offices and files in violation of Rule 6(e). The district court ruled that the Justice Department had engaged in questionable storage practices, but had not violated Rule 6(e). On the record presented to us, we agree with the district court's conclusion.

An Impounding Order was entered instructing the Antitrust Division to store the grand jury materials in Washington, D.C. There has been no showing that these materials have been disclosed in violation of Rule 6(e), or that Government attorneys are making continued use of them in this civil case.¹²  All that the record shows is a continued possession of some documents that the Government attorneys have a right to possess.¹³ 

III. CONCLUSION.

Based on the foregoing reasoning, we affirm the district court's denial of ADM's and Nabisco's motion for dismissal, or for alternative relief.