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ORDER Granting The Government's Ex Parte Motion For An Order Authorizing Disclosure of Grand Jury Material Obatined In A Specific Grand Jury Investigation To Department of Justice Contract Employees Under Federal Rules of Criminal Procedure 6(e)(3)(A)(ii) re 1 . Signed by JUDGE J. MICHAEL SEABRIGHT on 8/25/11. (gls, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
IN RE DISCLOSURE OF MATTERS
OCCURRING BEFORE A GRAND
JURY TO THE LITIGATION
TECHNOLOGY SERVICE CENTER
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MISC. NO. 11-00163 JMS/RLP
ORDER GRANTING THE
GOVERNMENT’S EX PARTE
MOTION FOR AN ORDER
AUTHORIZING DISCLOSURE OF
GRAND JURY MATERIAL
OBTAINED IN A SPECIFIC
GRAND JURY INVESTIGATION
TO DEPARTMENT OF JUSTICE
CONTRACT EMPLOYEES UNDER
FEDERAL RULE OF CRIMINAL
PROCEDURE 6(e)(3)(A)(ii)
ORDER GRANTING THE GOVERNMENT’S EX PARTE MOTION FOR
AN ORDER AUTHORIZING DISCLOSURE OF GRAND JURY
MATERIAL OBTAINED IN A SPECIFIC GRAND JURY
INVESTIGATION TO DEPARTMENT OF JUSTICE CONTRACT
EMPLOYEES UNDER FEDERAL RULE OF CRIMINAL PROCEDURE
6(e)(3)(A)(ii)
I. INTRODUCTION
The United States (the “government”) has filed an ex parte motion
seeking an order authorizing it to disclose information obtained in a specific grand
jury investigation to employees at the Litigation Technology Service Center
(“LTSC”), a government-owned, but contractor-operated facility that provides
document processing services to the various United States Attorneys’ offices. The
government contends that this disclosure is permissible pursuant to Federal Rule of
Criminal Procedure 6(e)(3)(A)(ii). Based on the following, the court agrees and
GRANTS the government’s Motion.
II. BACKGROUND
LTSC, created by the Executive Office for United States Attorneys
(“EOUSA”), is owned by the government but operated by an independent
contractor, IE Discovery, Inc. LTSC operates a secure in-house facility providing
litigation technology support services -- such as copying, scanning, and coding
discovery documents, case records, and native files -- for document-intensive
investigations, prosecutions, and court proceedings.
LTSC contract personnel are employees of IE Discovery and not the
government. LTSC employees must nonetheless (1) sign confidentiality
agreements to maintain the privacy of all materials processed at LTSC, (2) execute
conflict-of-interest forms, and (3) subject themselves to security background
investigations. LTSC employees are also required to follow all grand jury secrecy
requirements and other laws, regulations, and Department of Justice policies that
are imposed on U.S. Attorneys’ Office employees. For example, LTSC employees
must secure, limit access, and prevent improper disclosure of grand jury materials,
and are subject to the control of the U.S. Attorneys’ Office and the EOUSA in
handling all materials.
All LTSC data is maintained within a secure Department of Justice
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information technology infrastructure, and LTSC operations are performed in a
secure government-owned building. Materials shipped to LTSC are subject to
secure shipping protocols to ensure the physical security of sensitive information
consistent with U.S. Attorney procedures.
As to the instant grand jury investigation, the government asserts that
it needs LTSC’s assistance to provide document and data processing that the local
U.S. Attorney’s office cannot handle on its own due to the scope of the document
production and the technology required.
III. ANALYSIS
The court first recognizes the “long-established policy that maintains
the secrecy of the grand jury proceedings in the federal courts.” United States v.
Sells Eng’g, Inc., 463 U.S. 418, 424 (1983) (quoting United States v. Procter &
Gamble Co., 356 U.S. 677, 681 (1958)). Grand jury secrecy serves several
purposes, including:
(1) To 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; [and] (5) to protect innocent
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accused who is exonerated from disclosure of the fact
that he has been under investigation, and from the
expense of standing trial where there was no probability
of guilt.
Procter & Gamble Co., 356 U.S. at 681-82 n.6 (quoting United States v. Rose, 215
F.2d 617, 628-29 (3rd Cir. 1954)); see also Sells Eng’g, 463 U.S. at 424 (quoting
Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 219 (1979)).
Federal Rule of Criminal Procedure 6(e) “codifies the traditional rule
of grand jury secrecy,” and sets forth several exceptions to the general rule that
“grand jurors, government attorneys and their assistants, and other personnel
attached to the grand jury are forbidden to disclose matters occurring before the
grand jury.” Sells Eng’g, 463 U.S. at 425. One exception is outlined in Rule
6(e)(3)(A)(ii), which provides in relevant part:
(A) Disclosure of a grand-jury matter -- other than the
grand jury’s deliberations or any grand juror’s vote -may be made to:
...
(ii) any government personnel -- including those of
a state, state subdivision, Indian tribe, or foreign
government -- that an attorney for the government
considers necessary to assist in performing that
attorney’s duty to enforce federal criminal law . . .
.
According to its plain language, the exception outlined in Rule
6(e)(3)(A)(ii) applies where: (1) the disclosure is to “any government personnel,”
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and (2) the government attorney believes the disclosure is necessary to assist the
attorney in performing his duties. See also In re Grand Jury Proceedings, 158 F.
Supp. 2d 96, 105 (D. Mass. 2001) (explaining that in adopting the current language
of Rule 6(e)(3)(A)(ii), Congress “was concerned not only with the scope of the use
of grand jury materials, but also with the entity to whom those material are
disclosed”). The government easily meets the second requirement in seeking
disclosure to LTSC employees -- the government asserts that access of the
materials by LTSC employees is essential to copy, scan, code, and review
documents that the U.S. Attorney’s Office is unable to do on its own. The first
requirement, however, is more complex given that LTSC, although owned by the
government and run according to its requirements, is operated by IE Discovery
employees.
The text of Rule 6(e)(3)(A)(ii) does not define “government
personnel” beyond reciting that the term is not limited to federal government
personnel only, but also includes the personnel of other governments. Although
the Rule originally limited disclosure to attorneys of the federal government only,
it was expanded to allow disclosure to all government personnel that the U.S.
Attorney’s Office finds necessary to assist in performing its duty. See In re Grand
Jury Proceedings, 158 F. Supp. 2d at 107-12 (outlining Rule 6(e)’s legislative
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history in detail). This expansion recognized that criminal investigations may
require assistance from other agencies and that grand jury materials “should be
available to ‘every legitimate member of [the] team’ conducting the criminal
investigation.” Sells Eng’g, 463 U.S. at 439 (quoting Hearings on Proposed
Amendments to the Federal Rules of Criminal Procedure before the Subcommittee
on Criminal Justice of the House Committee on the Judiciary, 95th Cong., 1st Sess.
67 (1977) (testimony of Acting Deputy Attorney General Richard Thornburgh on
behalf of the Justice Department)); see 1985 Advisory Committee Notes
(explaining that amendment to the Rule specifying that disclosure may be made to
state government personnel recognizes that “government attorneys in complex
grand jury investigations frequently find it necessary to enlist the help of a team of
government agents,” which may include state government personnel); see also
United States v. Pimental, 380 F.3d 575, 595 (1st Cir. 2004) (discussing legislative
history).
Despite clarifying that Rule 6(e)(3)(A)(ii) is not limited to federal
government employees, neither its plain language nor the legislative history
provides meaningful guidance regarding whether an organization such as the
LTSC, with both government and non-government characteristics, qualifies as
“government personnel.” Caselaw nonetheless provides some guidance that
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“government personnel” is not strictly limited to its permanent, full-time
employees only.
For example, United States v. Lartey, 716 F.2d 955 (2d Cir. 1983),
held that disclosure of grand jury materials to a retired Internal Revenue Service
agent assisting the government as a specialist in investigative accounting was
“entirely proper.” Lartey reasoned that “[t]here is nothing in the legislative history
of the 1977 amendments to Rule 6(e) permitting disclosure to ‘government
personnel’ to indicate that the term is limited to permanent civil service employees
of the United States.” Id. at 964. Indeed, the retired agent worked exclusively for
the government while assisting on the investigation, the records were kept in a
secure government location, and the retired agent discussed the material only with
government attorneys and agents. Id. at 963; see also United States v. Anderson,
778 F.2d 602, 605 (10th Cir. 1985) (holding that a trust law expert, under contract
with the government, fell within the “government personnel” exception to Rule
6(e)); see also United States v. Benjamin, 852 F.2d 413, 419 (9th Cir. 1988),
overruled on other grounds by United States v. Spillone, 879 F.2d 514, 520 (9th
Cir. 1989) (suggesting that Rule 6(e)(3)(A)(ii) should not be read to preclude
“resort to private investigative help”); But see In re Grand Jury Matter, 607 F.
Supp. 2d 273, 275-76 (D. Mass. 2009) (rejecting that Rule 6(e)(3)(A)(ii) would
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permit disclosure to employees of a private consulting firm because they are not
“employees of the government”).
Pimental is likewise instructive. The First Circuit concluded that a
Massachusetts Insurance Fraud Bureau (the “MIFB”) investigator fell within the
definition of “government personnel” as a “quasi-governmental” entity.
Specifically, although the MIFB was funded by two voluntary associations of
Massachusetts insurance carriers, its creation was authorized by Massachusetts
statute, its funding is mandated by statute, five of its fifteen board members are
public officials, its “purpose, organizational scheme, and basic operations are all
dictated by statute, and it is subject to the constant oversight of the Massachusetts
legislature.” Id. at 592-93. Pimental held an entity that “straddles the line between
a government and private entity” can encompass government personnel for the
purposes of Rule 6(e)(3)(A)(ii). Id. at 594.1
The court agrees with the reasoning of these cases that Rule
6(e)(3)(ii)’s limitation to “government personnel” is not restricted to full-time
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In contrast, United States v. Tager, 638 F.2d 167 (10th Cir. 1980), held that disclosure
of grand jury material to an employee of the Insurance Crime Prevention Institute (the “ICPI”),
an organization funded by insurance companies for the purpose of investigating possible frauds
against them, did not fall within the exception. Unlike the MIFB in Pimental, the ICPI and its
investigator did not have “any official position whatever,” and had simply developed the case on
their own, referred it to the United States Postal Inspection Services, and then continued to assist
with the investigation. Id. at 168. In light of Anderson, United States v. Benjamin, 852 F.2d
413, 419 (9th Cir. 1988), noted that Tager “is doubtful authority even in its own circuit.”
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permanent government employees; instead, the court’s analysis must be guided by
the particular circumstances of the entity at issue and the need for disclosure.
Applying these considerations, LTSC is much more closely aligned as
“government personnel” than the individuals at issue in Anderson and Lartey, and
exhibits many similar characteristics to the MIFB that Pimental found relevant.
Specifically, although LTSC is operated by IE Discovery, in all other respects
LTSC appears to have the characteristics of a governmental entity -- (1) LTSC was
created and is owned by the federal government to fulfill a particularized need for
technology support services for document-intensive investigations/prosecutions;
(2) LTSC data is maintained within a secure Department of Justice information
technology infrastructure; (3) LTSC operations are performed in a secure
government-owned building; (4) LTSC employees are subject to all laws,
regulations, and Department of Justice policies that are imposed on U.S. Attorney’s
Office employees; and (5) the U.S. Attorney’s Office and the EOUSA ultimately
control the handling of all case data and documents.
Further, all of the safeguards that LTSC is required to take in ensuring
the security and confidentiality of the materials is consistent with the longestablished purposes of grand jury secrecy. Disclosure to LTSC, which merely
processes the documents and data and follows all government protocols for
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security, should not affect witnesses’ willingness to come forward to testify,
increase the risk of flight by grand jury targets, damage the reputations of those
accused, or inject outside interference into the grand jury. Rather, disclosure is
necessary for the simple fact that the government cannot process all of the
documents relevant to this investigation on its own and created LTSC for this very
purpose. Under these circumstances, the court finds that LTSC employees are
“government personnel” for purposes of Rule 6(e)(3)(A)(ii) and that disclosure of
grand jury materials as sought in the government’s ex parte Motion is proper.
IV. CONCLUSION
Based on the above, the court GRANTS the government’s ex parte
Motion and authorizes disclosure of the specific grand jury material outlined in its
Motion to LTSC under Federal Rule of Criminal Procedure 6(e)(3)(A)(ii).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 25, 2011.
/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge
In re Disclosure of Matters Occurring Before a Grand Jury to the Litig. Tech. Serv. Ctr., Misc. No.
11-00163 JMS/RLP, Order Granting the Government’s Ex Parte Motion for an Order Authorizing
Disclosure of Grand Jury Material Obtained in a Specific Grand Jury Investigation to Department
of Justice Contract Employees under Federal Rule of Criminal Procedure 6(e)(3)(A)(ii)
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