United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued July 21, 1998 Decided August 3, 1998
In re: Sealed Case No. 98-3077
Consolidated with
98-3078, 98-3079, 98-3081
---------
On Petition for Writ of Mandamus
Kenneth W. Starr, Independent Counsel, argued the cause
for petitioner, with whom Donald T. Bucklin, Scott T. Kragie,
and Andrew W. Cohen were on the petition and reply.
David E. Kendall argued the cause for respondent William
J. Clinton, with whom Nicole K. Seligman, Max Stier, Robert
S. Bennett, Carl S. Rauh, Amy Sabrin, Katharine S. Sexton,
W. Neil Eggleston, William J. Murphy, and William Alden
McDaniel, Jr., were on the response.
Before: Wald, Silberman, and Henderson, Circuit Judges.
Opinion for the Court filed Per Curiam.
Per Curiam: The Independent Counsel (IC) petitions for a
writ of mandamus directing the district court to vacate its
orders authorizing [
] * to subpoena documents from the IC,
conduct limited depositions of the IC and his staff, and
subpoena the IC and his staff for similarly limited testimony
at a show cause hearing relating to alleged violations of the
grand jury secrecy rule. We conclude that we have power to
determine the issues presented by the petition; resolving
those issues in a substantially different way than the district
court did, we issue the writ.
I.
[
]1 filed motions in the district court requesting that
the court order Independent Counsel Kenneth W. Starr to
show cause why he, and/or his staff, should not be held in
contempt for violation of Federal Rule of Criminal Procedure
6(e)(2), which prohibits attorneys for the government from
disclosing confidential grand jury information.2 The movants
alleged that the IC and his staff had divulged such informa-
tion to the press, and provided the court with several news
reports about the investigation wherein a reporter describes
the source of the information as, to quote one illustrative
example, "a source close to Starr." Appendix to Opposition
to Emergency Motion to Stay the District Court's Orders, at
Tab 1 (Thomas Galvin, Monica Keeping Mum--For Now
Fends Off Query On Internal Affairs, Daily News, Jan. 23,
1998, at 26). The district court held that such news reports
established a prima facie case of a violation of Rule 6(e)(2)
because the "media reports disclosed information about 'mat-
ters occurring before the grand jury' and indicated that the
sources of the information included attorneys and agents of
__________
* Bold brackets signify sealed material.
1 [
]
2 Rule 6(e) provides in relevant part: "[A]n attorney for the
government ... shall not disclose matters occurring before the
grand jury, except as otherwise provided in these rules.... A
knowing violation of Rule 6 may be punished as a contempt of
court." Fed. R. Crim. P. 6(e)(2). The IC, as an "attorney for the
government," is subject to the secrecy requirements of Rule 6(e)(2).
In re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994).
the Government." Order to Show Cause, Misc. No. 98-55
(June 19, 1998), at 2 (quoting Barry v. United States, 865
F.2d 1317, 1321 (D.C. Cir. 1989)).
The district court read our decision in Barry as holding
that once a prima facie violation of Rule 6(e)(2) is established,
the court is required to conduct an adversarial hearing at
which the prosecutor must show cause why he should not be
held in contempt. Order to Show Cause at 9, (citing Barry,
865 F.2d at 1321). Accordingly, the district court issued the
two procedural orders at issue in this petition. The court
first scheduled a show cause hearing. Order to Show Cause
at 10. In the second order, it clarified the nature of the show
cause hearing. The IC was ordered to produce, on July 11,
the documents requested by movants, with any Rule 6(e)
material redacted.3 The court ruled that movants would be
permitted to depose the IC and several of his staff, prior to
the adversarial hearing, on three subject areas: (1) the IC's
policy regarding press contacts, (2) actual contacts with the
press by the IC or his staff, and (3) specific representations
made by the IC about the first two subject areas. The court
further ruled that movants could subpoena the IC and several
of his staff for testimony at the show cause hearing, with the
subject matter of the questioning to be limited in the same
manner as during the depositions. Mem. Order, Misc. No.
98-55 (June 26, 1998), at 2. Finally, the court set forth the
procedure to be followed at the show cause hearing: the
hearing would begin with an ex parte presentation by the IC
of any Rule 6(e) material the IC deems necessary to rebut the
prima facie case; after the IC's presentation, movants' coun-
sel would join the hearing, cross-examine the IC and his
witnesses, and present their evidence. See id. at 4.
The IC filed a notice of appeal, followed by a motion for
stay pending appeal. The district court subsequently de-
clined to stay its orders, reasoning that the factors for
granting a stay pending appeal were not met. Order, Misc.
__________
3 Discovery of documents from the IC was initially scheduled to
begin on June 30, 1998. At the request of the IC, the district court
stayed the discovery order until July 11.
No. 98-55 (July 9, 1998). Specifically, the court found that
the IC's likelihood of prevailing on the merits of its appeal
was low given the court's conclusion that the orders are not
even appealable; that the IC would not be irreparably
harmed by the orders because the orders allowed him to
redact any Rule 6(e) material and thus he would not be
required to provide any confidential investigative material to
movants; that the harm to movants of granting a stay was
substantial because without an immediate show cause hear-
ing, there would be no deterrence of future leaks in the
interim before the appeal; and that the public interest in
stopping leaks and in preserving respect for the judiciary's
orders sealing grand jury proceedings outweighed any delay
that might be caused by the show cause hearing and its
associated discovery process.
On July 9, 1998, the same day the district court denied the
IC's motion for a stay pending appeal, the IC petitioned us
for mandamus relief.4 Because discovery was set to begin on
__________
4 Petitioner styles his petition a "Petition for Writ of Prohibi-
tion" rather than a "Petition for Writ of Mandamus." Because "the
grounds for issuing the writs are virtually identical," In re Halkin,
598 F.2d 176, 179-80 n.1 (D.C. Cir. 1979), and because "mandamus"
is the more familiar term, we prefer to use it.
Petitioner simultaneously filed an emergency motion to stay the
district court's orders pending appeal. Petitioner argues in that
motion that we have jurisdiction to review the district court's
orders--which he concedes are interlocutory--under the collateral
order doctrine. Emergency Motion of the United States of Amer-
ica at 7 (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 546-47 (1949)). We have recently described the criteria for the
collateral order doctrine and the writ of mandamus as "similar." In
re Minister Papandreou, 139 F.3d 247, 250 (D.C. Cir. 1998); see
also In re Kessler, 100 F.3d 1015, 1016 (D.C. Cir. 1997) ("In
practical terms, the difference between the two, at least in this
context [of review of a discovery order], is mainly semantic.").
Ease of analysis, as will become clear in Part II.B. infra, dictates
that we discuss petitioner's arguments using the framework for
mandamus relief. Cf. Papandreou, 139 F.3d at 250 (discussing the
criteria for both mandamus relief and the collateral order doctrine,
July 11, we ordered an administrative stay of the district
court's procedural orders so that we would have sufficient
opportunity to consider the merits of the petition for writ of
mandamus. Order, No. 98-3077 (July 10, 1998). We now
conclude that we have power to determine the issues present-
ed in the petition; based on our analysis of those issues, we
issue the writ.
II.
The writ of mandamus has been described as "an extraordi-
nary remedy, to be reserved for extraordinary situations."
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S.
271, 289 (1988) (citing Kerr v. United States Dist. Court, 426
U.S. 394, 402 (1976)).5 As we recently observed, liberal use of
the writ would "undercut the general rule that courts of
appeals have jurisdiction only over 'final decisions of the
district courts,' 28 U.S.C. s 1291, and would lead to piecemeal
appellate litigation." In re Minister Papandreou, 139 F.3d
247, 249 (D.C. Cir. 1998). Not surprisingly, the extraordinary
nature of mandamus relief is reflected in the strict criteria for
its issuance: Mandamus will issue only if the petitioner bears
his "burden of showing that the petitioner's right to issuance
of the writ is clear and indisputable," Gulfstream, 485 U.S. at
289 (citation and internal quotation marks omitted), and that
"no other adequate means to attain the relief" exist, Allied
Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). See
Papandreou, 139 F.3d at 250.
A.
We take the latter requirement first. Respondent, refer-
ring us to our opinion in In re Kessler, 100 F.3d 1015 (1997),
__________
and then embarking on an analysis framed solely in terms of
mandamus without articulating a reason for preferring one frame-
work over the other).
5 Statutory authority for issuing the writ of mandamus is
provided by 28 U.S.C. s 1651 (1994): "The Supreme Court and all
courts established by Act of Congress may issue all writs necessary
or appropriate in aid of their respective jurisdictions and agreeable
to the usages and principles of law."
urges that petitioner has an adequate alternative means to
challenge the district court's discovery orders. As respon-
dent correctly observes, we stated in Kessler that "in the
ordinary case, a litigant dissatisfied with a district court's
discovery order must disobey the order, be held in contempt
of court, and then appeal that [final] order on the ground that
the discovery order was an abuse of discretion." Kessler, 100
F.3d at 1015; see also Papandreou, 139 F.3d at 250 ("If held
in contempt, a litigant then has a final order from which he
may appeal, asserting any legal flaws in the underlying
discovery order."); In re: Sealed Case, 141 F.3d 337, 339
(D.C. Cir. 1998). Respondent argues that the disobedience
and contempt path to appeal is an adequate means to relief,
and that petitioner must therefore pursue it rather than
seeking the extraordinary writ of mandamus.
Unfortunately, in Kessler, Papandreou, and In re: Sealed
Case, the parties did not bring to our attention a longstanding
distinction between civil and criminal contempt orders issued
against a party to a litigation. While a criminal contempt
order issued against a party is considered a final order and
thus appealable forthwith under 28 U.S.C. s 1291, Bray v.
United States, 423 U.S. 73, 76 (1975); Matter of Christensen
Eng'g Co., 194 U.S. 458, 461 (1904); SEC v. Simpson, 885
F.2d 390, 395 n.7 (7th Cir. 1989), a civil contempt order issued
against a party is typically deemed interlocutory and thus not
appealable under 28 U.S.C. s 1291, Fox v. Capital Co., 299
U.S. 105, 107 (1936); Doyle v. London Guar. & Accident Co.,
204 U.S. 599 (1907); International Ass'n of Machinists &
Aerospace Workers v. Eastern Airlines, Inc., 849 F.2d 1481,
1484 (D.C. Cir. 1988); Duell v. Duell, 178 F.2d 683, 687 (D.C.
Cir. 1949) (describing the rule as "thoroughly settled"); In re
Joint E. & S. Dists. Asbestos Litig., 22 F.3d 755, 765 (7th Cir.
1994). Indeed, we reaffirmed the rule that a civil contempt
order issued against a party is not appealable as recently as
SEC v. Finnegan, No. 97-5272, 1998 WL 65530, at *1 (D.C.
Cir. Jan. 13, 1998).
The confusion in our caselaw may be a product of several
factors. For one, the authoritative Supreme Court cases on
these issues are rather old and are not frequently cited. For
another, the distinction between civil and criminal contempt
orders for purposes of appealability by a party has been
criticized, see Powers v. Chicago Transit Auth., 846 F.2d
1139, 1141 (7th Cir. 1988) (noting that although "many mod-
ern commentators believe that the rule postponing review [of
a civil contempt order issued against a party] is unduly harsh,
... the rule is too well established to be changed by us.");
15B Charles Alan Wright, Arthur R. Miller, & Edward H.
Cooper, Federal Practice and Procedure s 3917, at 399-404
(2d ed. 1992) (reviewing the policy debate on the merits of the
distinction), especially in light of the different regime for non-
parties that allows immediate appeals from orders of either
civil or criminal contempt, Petroleos Mexicanos v. Crawford
Enters., Inc., 826 F.2d 392, 398 (5th Cir. 1989); United States
v. Columbia Broad. Sys., 666 F.2d 364, 367 n.2 (9th Cir. 1982)
(citing cases). Most likely, our questionable assumption in
Kessler, Papandreou, and In re: Sealed Case can be traced to
an imprecise footnote from which we quoted: "As a general
rule, a district court's order enforcing a discovery request is
not a 'final order' subject to appellate review. A party that
seeks to present an objection to a discovery order immediate-
ly to a court of appeals must refuse compliance, be held in
contempt, and then appeal the contempt order." Church of
Scientology of Calif. v. United States, 506 U.S. 9, 18 n.11
(1992) (citing United States v. Ryan, 402 U.S. 530 (1971)).
On its face, this passage suggests that any contempt order
issued against a party, whether civil or criminal, is an appeal-
able final order. But it is rather implausible that the Su-
preme Court, in dicta--not to mention in a footnote--meant
to overrule sub silentio the holdings in Fox and Doyle.
Moreover, the case relied on by the Supreme Court, United
States v. Ryan, 402 U.S. 530 (1971), is inapposite. Ryan
involved a recipient of a subpoena duces tecum issued by a
grand jury, who sought to appeal from the district court's
denial of a motion to quash the subpoena. The Court held
that such an order is not appealable, and that appeal could
only be taken from a contempt order that would follow from a
refusal to produce the documents requested in the subpoena.
Id. at 552. It did not distinguish civil from criminal con-
tempt, for there was no need to do so. The case involved a
recipient of a grand jury subpoena, not a party-litigant, and
so did not implicate the Doyle rule.
In any event, we need not definitively resolve the apparent
conflict in our cases as to whether a civil contempt order
issued in the context of an ongoing civil litigation is appeal-
able as a final order. It is enough for us to observe that
there is substantial doubt whether, if squarely presented with
the issue, we would deem such a civil contempt order appeal-
able. Given a district court's discretion whether to hold a
party who refuses to comply with a discovery order in civil or
criminal contempt, "a party who wishes to pursue the disobe-
dience and contempt path to appeal cannot know whether the
resulting contempt order will be appealable." Wright, Mil-
ler & Cooper s 3914.23, at 146. The implication, of course,
is that the disobedience and contempt route to appeal cannot
be labeled an adequate means of relief for a party-litigant.
So too here. The discovery order addressed to petitioner
arises out of a civil proceeding ancillary to a grand jury
investigation, Barry, 865 F.2d at 1321-22, and petitioner is
properly characterized as a party in that civil proceeding.
Petitioner cannot know, ex ante, whether refusal to comply
with the discovery order will result in a civil contempt order
or a criminal contempt order. The uncertainty of this means
to relief bespeaks its inadequacy in this case.
Our conclusion that the disobedience and contempt path to
appeal is inadequate does not answer whether some other
means to relief--besides the writ of mandamus--is adequate
for petitioner. Presumably, a civil contempt order, if issued
against petitioner at the conclusion of the ancillary civil
proceeding, would constitute a final order, appealable under
28 U.S.C. s 1291; it would not be like the civil contempt
orders we discussed above that arise in the course of an
ongoing litigation. The Rule 6(e)(2) ancillary civil proceeding
we established in Barry is a peculiar creature in this regard;
the raison d'etre of the proceeding is a determination by the
district court whether or not to hold the prosecutor in civil
contempt. Respondent argues, therefore, that petitioner
must wait until the conclusion of this ancillary civil proceed-
ing and, if found in civil contempt at that point, seek to appeal
the discovery orders.
The inadequacy of this alternative is apparent upon consid-
eration of the nature of the harm that petitioner alleges will
occur if we allow the procedural orders to stand. Petitioner
contends that if he discloses [
] the grand jury's investigation
may be irreparably harmed. In this respect, petitioner is
asserting something akin to a privilege insofar as "once [the]
putatively protected material is disclosed, the very right
sought to be protected has been destroyed." In re Ford
Motor Co., 110 F.3d 954, 963 (3d Cir. 1997) (citation omitted);
see also Papandreou, 139 F.3d at 251 ("Disclosure followed
by appeal after final judgment is obviously not adequate in
such cases--the cat is out of the bag."). Although we have
not had occasion to address the issue of irreparable harm to
law enforcement from disclosure of arguably "privileged"
material in the context of a mandamus petition, our sister
circuits have concluded that such harm renders appeal after
final judgment an inadequate means to relief from the discov-
ery order. See In re Department of Justice, 999 F.2d 1302,
1305 (8th Cir. 1993) (district court had ordered the FBI to
turn over documents compiled for law enforcement purposes
and assertedly privileged under FOIA, which, if released,
would have irreparably harmed ongoing law enforcement
proceedings); In re Attorney Gen. of the United States, 596
F.2d 58, 60 (2d Cir. 1979) (district court had ordered the
Attorney General to release files disclosing the names of
confidential government informants, arguably protected un-
der the informant's privilege and which, if released, might
have had immediate adverse effects on law enforcement and
intelligence-gathering).
Petitioner submits, moreover, that the district court's pro-
cedural orders, because they involve discovery and an adver-
sarial hearing, will cause significant delay to petitioner's
grand jury investigation as compared to the proposed alter-
nate procedure of an ex parte presentation to the district
court or a special master. In this respect, too, the type of
harm petitioner alleges is irreparable: the burden of discov-
ery and of the adversarial hearing is immediate and could not
be recompensed were petitioner successful in appealing the
procedural orders as part of an appeal from a final judgment
of civil contempt. Petitioner, in effect, is claiming an immuni-
ty from discovery and adversarial process while the grand
jury investigation is in progress. Thus, this case is similar to
Papandreou, 139 F.3d at 250, in which we observed, in the
course of issuing a writ of mandamus to vacate discovery
orders implicating sovereign immunity, that the infliction of
the "burdens" of discovery might cause irreparable harm to
one who asserts an immunity from those very burdens.
Finally, respondent contends, relying on our decision in In
re United States, 872 F.2d 472 (D.C. Cir. 1989), that the IC
has the alternative remedy of seeking relief from the district
court from discovery that the IC is able to demonstrate will
disclose grand jury or investigative secrets. In In re United
States, the district court had expressed a willingness to
determine in camera, item-by-item, whether the state secrets
privilege protected from discovery certain materials request-
ed by a plaintiff suing the government under the Federal
Tort Claims Act, and to allow the government to redact
names from certain documents. We denied the government's
petition for mandamus, in part because "[t]he district court
did not reject the Government's assertion of privilege; on the
contrary, ... the court demonstrated a perceptive under-
standing of and wholesome respect for the state secrets
privilege." Id. at 478. Respondent argues that the district
court here has demonstrated a similar willingness to accom-
modate petitioner's concerns about the confidentiality of the
grand jury investigation: the district court has ordered that
"discovery [is] restricted to matters not covered by Rule
6(e)," Mem. Order (June 26, 1998), at 2, and that "[i]f it
becomes necessary for the OIC to present material covered
by Rule 6(e) during the [show cause] hearing, the OIC may
submit it to the Court at a bench conference or by other
appropriate means," id. at 4.
We think, however, that unlike the district court's proce-
dural protections in In re United States, the district court's
safeguards here do not go far enough to assure us that the
district court will protect the confidentiality interests of the
IC. For example, even if the IC redacted the content of
communications with members of the press to omit grand
jury material, the residual information regarding the identity
of the contact and the time such contact was made would give
rise to inferences about the substance of "matters occurring
before the grand jury." Furthermore, the IC is not troubled
solely by the possibility that Rule 6(e) material might be
disclosed, but also by the prospect of disclosing even the
identities of members of the press with whom the IC and his
staff have spoken[ ]. The district
court's order does not accommodate this concern. Rather, it
explicitly designates "actual contacts with the press by OIC
employees," Mem. Order (June 26, 1998), at 2, as one of the
subject areas on which respondent will be permitted to ques-
tion petitioner and his staff by deposition and at the show
cause hearing. And the district court's order does not as-
suage petitioner's fear that discovery and an adversarial
hearing will divert petitioner's focus--significantly more so
than would an ex parte presentation--from directing the
grand jury investigation at a crucial juncture.
B.
That petitioner has no adequate means of relief besides
mandamus does not conclude our inquiry into whether we
have power to address the merits presented by the petition.
We must further determine whether petitioner has carried his
"burden of showing that [his] right to issuance of the writ is
clear and indisputable." Gulfstream, 485 U.S. at 289 (cita-
tions omitted); see also Papandreou, 139 F.3d at 250. On its
face, this criterion is somewhat circular. The right to issu-
ance of the writ must be "clear and indisputable," but criteria
for determining whether a petitioner has a right to issuance
of the writ at all--let alone one that is clear and indisputa-
ble--are conspicuously absent from this formulation.
The Supreme Court in Schlagenhauf v. Holder, 379 U.S.
104 (1964), described one category of cases for which manda-
mus is appropriate, a category into which we think the case at
bar fits exactly. In Schlagenhauf, the district court, pursuant
to Federal Rule of Civil Procedure 35, ordered a defendant in
litigation arising out of a bus accident to submit to mental and
physical examinations by several doctors. The defendant
petitioned the Seventh Circuit to issue a writ of mandamus
vacating the district court's order, claiming that Rule 35
authorized mental and physical examinations only of plain-
tiffs, not defendants. Whether Rule 35 could be applied to a
defendant was a "basic, undecided question"; only one federal
case had touched on the issue, and only one state case had
ever ordered the mental or physical examination of a defen-
dant. Id. at 110. The Seventh Circuit thought it had power
to review the question presented by the petition. The Su-
preme Court agreed, holding that "the petition was properly
before [the Seventh Circuit] on a substantial allegation of
usurpation of power in ordering any examination of a defen-
dant, an issue of first impression that called for the construc-
tion and application of Rule 35 in a new context." Id. at 111
(emphasis added). We have described Schlagenhauf as au-
thorizing consideration of a petition for writ of mandamus
"when the appellate court is convinced that resolution of an
important, undecided issue will forestall future error in trial
courts, eliminate uncertainty and add importantly to the
efficient administration of justice." Colonial Times, Inc. v.
Gasch, 509 F.2d 517, 524 (D.C. Cir. 1975).6
The appropriate procedural framework for the Rule 6(e)(2)
ancillary civil proceeding we recognized in Barry is as "im-
portant" and "undecided" today as was the proper interpreta-
tion of Rule 35 at the time Schlagenhauf arose in 1964. We
provided scant guidance in Barry on the proper conduct of
the Rule 6(e)(2) proceeding. And although the Eleventh
Circuit has set forth in significant detail a procedural frame-
work for a Rule 6(e)(2) proceeding akin to the one we
recognized in Barry, see United States v. Eisenberg, 711 F.2d
__________
6 See also In re Department of Justice, 999 F.2d at 1305
(holding that power to determine the issues presented in a writ of
mandamus is conferred when a "case presents a unique situation");
In re Attorney Gen., 596 F.2d at 64 (issuing the writ of mandamus
in part because of "the underlying issues of first impression"
presented in the petition).
959, 964 (11th Cir. 1983), it is the only case we could find that
has done so. The importance of the grand jury to the
enforcement of the federal criminal law is well documented,
and the impact on an ongoing grand jury investigation of a
burdensome discovery process and adversarial hearing,
through which [ ] learn of confidential investigative
material--even if not Rule 6(e) material--could be profound.
Accordingly, we have power "to determine ... the issues
presented by the petition for mandamus," Schlagenhauf, 379
U.S. at 111, and we turn to the merits to evaluate whether
petitioner has a clear right to the issuance of the writ.
III.
A. The Nature of the Proceeding
In this circuit, the scope and nature of proceedings to
enforce Rule 6(e)(2) are governed by our opinion in Barry.
In Barry, we outlined the basic framework governing actions
brought under Rule 6(e)(2):
It is generally understood that a prima facie case of a
violation of Rule 6(e)(2) is made when the media reports
disclosed information about "matters occurring before
the grand jury" and indicated that the sources of the
information included attorneys and agents of the Govern-
ment. Once a prima facie case is shown, the district
court must conduct a "show cause" hearing to determine
whether the Government was responsible for the pre-
indictment publicity and whether any information dis-
closed by the Government concerned matters occurring
before the grand jury. At this hearing, the burden shifts
to the Government to come forward with evidence to
negate the prima facie case. If after such a hearing the
trial court determines that remedial action is warranted,
it may order the Government to take steps to stop any
publicity emanating from its employees.
Barry, 865 F.2d at 1321 (citations, footnote, and internal
quotation omitted). Barry thus envisions that a two-step
analysis will be employed to determine whether a violation of
Rule 6(e)(2) has occurred. First, the district court must
determine whether the plaintiff has established a prima facie
case. This determination will typically be based solely on an
assessment of news articles submitted by the plaintiff; in-
deed, we acknowledged in Barry that a Rule 6(e)(2) plaintiff
could not be "expected to do more at this juncture of the
litigation" given that he or she would "almost never have
access to anything beyond the words of the [news] report."
Id. at 1326 (internal quotation omitted) (alteration in the
original).7 Second, if the court determines that a prima facie
case has been established, the burden shifts to the govern-
ment to "attempt to explain its actions" in a show cause
hearing. Id. at 1325. If the government fails to rebut the
prima facie case, a violation of Rule 6(e)(2) is deemed to have
occurred. Cf., e.g., Duplan Corp. v. Deering Milliken, Inc.,
540 F.2d 1215, 1220 (4th Cir. 1976) (noting that a prima facie
showing "subject[s] the opposing party to the risk of non-
persuasion if the evidence as to the disputed fact is left
unrebutted"). The court then determines what remedy will
be sufficient to deter further leaks. The remedy may be the
imposition of civil contempt sanctions or equitable relief or
both, "depending upon the nature of the violation and what
the trial court deems necessary to prevent further unlawful
disclosures of matters before the grand jury." Barry, 865
F.2d at 1323. Significantly, in establishing this two-step
framework, Barry said nothing about the burden shifting
back to the plaintiff after the government's presentation or
about the plaintiff retaining the burden of persuasion after a
__________
7 To be sure, the plaintiff's burden in a Rule 6(e)(2) proceeding
is relatively light. The articles submitted need only be susceptible
to an interpretation that the information reported was furnished by
an attorney or agent of the government; in fact, "[i]t is not
necessary for [an] article to expressly implicate [the government] as
the source of the disclosures if the nature of the information
disclosed furnishes the connection." Barry, 865 F.2d at 1325
(internal quotation omitted). Of course, should a Rule 6(e)(2)
plaintiff be in possession of evidence of a violation other than the
articles themselves, that evidence should be submitted as part of
the prima facie case.
prima facie case has been established. See id. (noting that
purpose of show cause hearing is to permit the government to
respond; "if the Government fails in its defense," the trial
court should consider appropriate relief); cf. Combs v. Ryan's
Coal Co., Inc., 785 F.2d 970, 984 (11th Cir. 1986) ("The party
seeking the contempt citation retains the ultimate burden of
proof...."). Under Barry, then, the plaintiff's burden is
minimal; the responsibility of coming forward with evidence
to rebut the accusation of unauthorized disclosure lies square-
ly with the government, the party in "the best position to
know whether [it is] responsible for a violation of the Rule."
Barry, 865 F.2d at 1326 (internal quotation omitted). If, of
course, the government convinces the trial judge that no
violation of Rule 6(e)(2) has occurred, that is the end of the
proceeding.
Here, the IC does not contest the district court's finding
that the movants have satisfied their burden to establish a
prima facie case through the submission of various news
articles indicating that information relating to grand jury
proceedings or witnesses was obtained from sources associat-
ed with the IC or that a show cause hearing is now required
under Barry. The IC does, however, object strenuously to
the discovery procedures set forth by the district court in its
order governing the conduct of the show cause hearing--in
particular, the requirement that the IC be required to pro-
duce documents sought by the movants, submit to depositions
of employees listed by the movants, and respond to subpoenas
for live testimony at the hearing. (The IC has stated his
willingness, however, to submit any information or testimony
in any form required to the district court in an in camera
proceeding.) The only issue before us, it is worth emphasiz-
ing, is not whether a show cause hearing will go forward in
the district court as to whether the IC or members of his
staff have made unauthorized disclosures to the press but
rather the manner in which the hearing will be conducted: as
a full-scale adversarial evidentiary proceeding or as an in
camera inquiry by the trial judge and/or any special master
or counsel it might appoint to assist the court in the task.
Our review of the district court's orders is a fairly deferential
one. In general, district courts are accorded a wide degree of
latitude in the oversight of discovery-related proceedings, and
we review orders pertaining to discovery only for abuse of
discretion. See, e.g., Laborers' Int'l Union of N. Am. v.
Department of Justice, 772 F.2d 919, 921 (D.C. Cir. 1984)
("Control of discovery is a matter entrusted to the sound
discretion of the trial courts."). We are acutely aware that in
this matter in particular the job of supervising the grand jury
has been an arduous one requiring many interventions by the
trial court, which has met its duties with admirable dedication
and expedition. Nonetheless, the appropriate procedure for a
Rule 6(e)(2) hearing is a matter of grave importance, not only
for this proceeding but for future ones, involving the need to
protect the secrecy of the grand jury itself as well as the need
to efficaciously remedy violations of that secrecy prohibited
by Rule 6(e)(2). Accordingly, in this opinion we will lay down
what we conclude is the appropriate way to conduct such a
show cause proceeding.
Barry itself provided little in the way of a roadmap to
assist the district court in proceeding once a prima facie case
is made, that is, it did not address the specifics of how the
show cause hearing should be conducted. It did not, for
example, indicate whether the hearing should be open to the
public or sealed, whether or to what extent discovery should
be permitted and by whom, whether the hearing should
include live testimony or rely solely on documentary evidence,
or how to minimize any risk that the hearing will result in the
disclosure of Rule 6(e) material to unauthorized recipients.
In order to resolve these critical questions, we must balance
two somewhat competing concerns, both of which lie just
beneath Barry's surface. We begin with the recognition that
Barry held that a proceeding to enforce the secrecy mandate
of Rule 6(e)(2) is civil in nature and may be initiated by a
private plaintiff.8 The movants in this proceeding have,
however, seized on this "civil" characterization to argue that,
pursuant to the Federal Rules of Civil Procedure, which
__________
8 In this respect, we are aligned with the Fifth and Eleventh
Circuits, see In re Grand Jury Investigation (Lance), 610 F.2d 202
(5th Cir. 1980); Eisenberg, 711 F.2d 959, and have taken a different
view from that later reached by other courts, see Finn v. Schiller,
generally govern civil actions for civil contempt, see 3
Charles Alan Wright, Federal Practice and Procedure
s 705 (1982),9 they are entitled to broad discovery against the
IC, including the opportunity to require production of and to
review documents from the IC and to subpoena and question
the IC and members of his staff about the alleged unautho-
rized disclosures involved in the news articles that formed the
basis of the prima facie case.10 See, e.g., Degen v. United
States, 517 U.S. 820, 825-26 (1996) (noting that in a civil case,
"a party is entitled as a general matter to discovery of any
information sought if it appears 'reasonably calculated to lead
to the discovery of admissible evidence' ") (quoting Fed. R.
Civ. P. 26(b)(1)).11 In most proceedings characterized as
__________
72 F.3d 1182 (4th Cir. 1996) (Rule 6(e)(2) provides for civil or
criminal contempt remedy but may not be initiated by private
plaintiff); In re Grand Jury Investigation (90-3-2), 748 F. Supp.
1188 (E.D. Mich. 1990) (Rule 6(e)(2) provides only for criminal
contempt remedy).
9 Because the Federal Rules of Civil Procedure generally gov-
ern civil contempt proceedings, it is arguable that a Rule 6(e)(2)
proceeding must be initiated by complaint and not by motion, see
Fed. R. Civ. P. 3 ("A civil action is commenced by filing a complaint
with the court"), and must first request injunctive relief before
seeking contempt sanctions, see Blalock v. United States, 844 F.2d
1546, 1550 (11th Cir. 1988) ("[T]here is no such thing as an
independent cause of action for civil contempt; civil contempt is a
device used to coerce compliance with an in personam order of the
court which has been entered in a pending case."); but see Barry,
865 F.2d at 1324 n.7 ("[A] civil contempt sanction may include
appropriate equitable relief."). Because the IC has not raised
either of these concerns below or before this court, we will not
consider them further here.
10 Indeed, the movants' motion to the district court requesting
discovery asserted that it was unnecessary for them to secure the
court's permission to commence civil discovery. See Memorandum
in Support of Motion for Production of Documents and Testimony
(June 19, 1998), at 2.
11 Of course, a district court retains the discretion "to control
any discovery process which may be instituted so as to balance [the
"civil," this would certainly be the case: An overriding inter-
est in the revelation of truth creates a need for free and open
access to evidence; indeed, we have called it a "hallmark of
our adversary system that we safeguard party access to the
evidence tendered in support of a requested court judgment"
and noted that the "firmly held main rule" is that "a court
may not dispose of the merits of a case on the basis of ex
parte, in camera submissions." Abourezk v. Reagan, 785
F.2d 1043, 1060-61 (D.C. Cir. 1986), aff'd by an equally
divided court, 484 U.S. 1 (1987) (citations omitted). Excep-
tions to this rule are few and narrow. Id.
We ultimately conclude, however, that the unique nature of
a Rule 6(e)(2) show cause hearing requires such an exception.
This is not a typical civil proceeding between two disputants;
rather, it resembles more clearly an ancillary proceeding to a
criminal grand jury inquest. To the extent that sanctions are
requested to deter future leaks (and the remedy is thus
prospective and prophylactic, rather than retrospective and
punitive), a Rule 6(e)(2) action is indeed civil in nature. See
Barry, 865 F.2d at 1324; see also Gompers v. Buck's Stove &
Range Co., 221 U.S. 418, 441 (1911) (civil contempt sanctions
are "remedial, and for the benefit of the complainant," while
criminal contempt sanctions are "punitive, to vindicate the
authority of the court"). But the way in which the proceed-
ing is conducted must acknowledge the essential nature of the
proceeding as one designed to guard the sanctity of the grand
jury process itself. Thus, Barry describes a Rule 6(e)(2)
plaintiff as having only "a very limited right to seek injunctive
relief or civil contempt of court through the district court
supervising the grand jury." McQueen v. United States,
1998 WL 217538, at *7 (S.D. Tex. Mar. 30, 1998) (citing
Barry). The plaintiff in a Rule 6(e)(2) suit would not, of
course, be entitled to seek monetary damages or attorneys'
fees and costs from an errant prosecutor, even though such
damages are commonly awarded in civil contempt actions.
__________
plaintiff's] need for access to proof ... against the extraordinary
needs of [the government] for confidentiality." Webster v. Doe, 486
U.S. 592, 604 (1988).
See, e.g., Clark v. Library of Congress, 750 F.2d 89, 103 (D.C.
Cir. 1984) (holding that sovereign immunity "bar[s] suits for
money damages against officials in their official capacity
absent a specific waiver by the government") (emphasis omit-
ted); see also Barry, 865 F.2d at 1321-22 (noting only that
Rule 6(e)(2) permits "equitable relief, either in addition to, in
conjunction with or in lieu of contempt sanctions"); McQueen,
1998 WL 217538, at *8 (monetary damages unavailable under
Rule 6(e)(2)); cf. United States v. Waksberg, 112 F.3d 1225,
1226 (D.C. Cir. 1997) ("One of the permissible purposes of
civil contempt sanctions is to compensate the complainant for
losses sustained, through a fine payable to the complainant.")
(internal quotation omitted); Food Lion, Inc. v. United Food
& Commercial Workers Int'l Union, 103 F.3d 1007, 1017 n.14
(D.C. Cir. 1997) (same as to fees and costs). In truth, like a
habeas corpus proceeding, a Rule 6(e)(2) civil action is some-
thing of a hybrid: although initiated by a private plaintiff, it
is designed to be a supplementary means of enforcing the
rules of a criminal proceeding. Cf. Santana v. United States,
98 F.3d 752, 754 (3d Cir. 1996) (noting that the nature of
habeas corpus cases is "not adequately captured by the
phrase 'civil action'; they are independent civil dispositions of
completed criminal proceedings"). A Rule 6(e)(2) proceeding,
dealing as it does with the substance of an ongoing criminal
grand jury investigation, must be fully cognizant of the
interests underlying that concurrent criminal proceeding.
The Supreme Court "consistently ha[s] recognized that the
proper functioning of our grand jury system depends upon
the secrecy of grand jury proceedings," Douglas Oil Co. of
Calif. v. Petrol Stops N.W., 441 U.S. 211, 218 (1979), "a long-
established policy ... older than our Nation itself," Pitts-
burgh Plate Glass Co. v. United States, 360 U.S. 395, 399
(1959) (internal quotation omitted). Rule 6(e)(2), by reinforc-
ing this need for secrecy, protects several interests of the
criminal justice system:
First, if preindictment proceedings were made public,
many prospective witnesses would be hesitant to come
forward voluntarily, knowing that those against whom
they testify would be aware of that testimony. More-
over, witnesses who appeared before the grand jury
would be less likely to testify fully and frankly, as they
would be open to retribution as well as to inducements.
There also would be the risk that those about to be
indicted would flee, or would try to influence individual
grand jurors to vote against indictment. Finally, by
preserving the secrecy of the proceedings, we assure that
persons who are accused but exonerated by the grand
jury will not be held up to public ridicule.
Douglas Oil, 441 U.S. at 219. Thus, there are obvious risks
of disclosure of grand jury material posed by translating
normal discovery techniques or routine cross-examination of
witnesses by all participating parties into Rule 6(e)(2) pro-
ceedings. Because a violation of Rule 6(e)(2) requires that
the disclosure concern "matters occurring before the grand
jury," 12 see Barry, 865 F.2d at 1321; Fed. R. Crim. P. 6(e)(2),
the IC may defend against an allegation of an unauthorized
disclosure in the press by asserting that the information
reported is, in fact, not a matter before the grand jury. In
order to do so, however, he may well need to explain what
material was before the grand jury.13 Even the fact that the
__________
12 Although we have recently noted in a case involving the
rights of the media to gain access to district court hearings and
pleadings related to the grand jury's investigation that the phrase
"matters occurring before the grand jury" encompasses "not only
what has occurred and what is occurring, but also what is likely to
occur," including "the identities of witnesses or jurors, the sub-
stance of testimony as well as actual transcripts, the strategy or
direction of the investigation, the deliberations or questions or
jurors, and the like," In re Motions of Dow Jones & Co., Inc., 142
F.3d 496, 500 (D.C. Cir. 1998), petition for cert. filed, 66 U.S.L.W.
3790 (U.S. June 3, 1998) (No. 97-1959) (internal quotation omitted),
we note here the problematic nature of applying so broad a
definition, especially as it relates to the "strategy or direction of the
investigation," to the inquiry as to whether a government attorney
has made unauthorized disclosures.
13 We recognize that the district court's orders restricted dis-
covery to "matters not covered by Rule 6(e)," but given that the
disclosure of Rule 6(e) material is at the heart of this case, we find
"leaked" material was not relevant to the investigation could
itself be quite revealing, and certainly admissions that grand
jury material was disclosed would be useful to witnesses who
might be recalled. The possibility that document production,
depositions, and cross-examination of government prosecutors
would result in a disclosure of Rule 6(e) material clearly
increases the risk of "[a greater] number of persons to whom
the information is available (thereby increasing the risk of
inadvertent or illegal release to others), [and thus] renders
considerably more concrete the threat to the willingness of
witnesses to come forward and testify fully and candidly."
United States v. Sells Eng'g, Inc., 463 U.S. 418, 432 (1983)
(rejecting automatic disclosure of grand jury materials to
government civil attorneys). Moreover, if discovery and ex-
amination of government witnesses through depositions and
in court were routinely available in Rule 6(e)(2) suits, targets
and witnesses would surely be encouraged to bring such
proceedings in the hope of obtaining information as to the
course of the grand jury's investigation whenever the rela-
tively low threshold of a prima facie case attributing the
source of a "leak" to the prosecutor was met. Cf. id. at 432
("If prosecutors in a given case knew that their colleagues
would be free to use the materials generated by the grand
jury for a civil case, they might be tempted to ... start or
continue a grand jury inquiry where no criminal prosecution
seemed likely."). The advantage of cross-examining govern-
ment agents involved in an ongoing investigation about
whether a "leak" of grand jury information has occurred
cannot be overstated, particularly in cases of large-scale
public interest. At the very least, if discovery or cross-
examination in a Rule 6(e)(2) proceeding were allowed to
proceed along its usual course, it would almost certainly
result in the release of the names of the government agents
involved in the investigation as well as the names of members
of the press with whom they have been in contact
[ ]. Short of a
blanket denial of any press contacts at all, it would seem to us
__________
it impossible to imagine how any meaningful discovery regarding
leaks could take place that would not involve the disclosure of some
Rule 6(e) material.
to be virtually impossible for IC personnel to answer mov-
ants' questions about whom they talked to, where, and about
what without disclosing details of the investigation that tread
perilously near to or in fact step over the line into areas of
grand jury secrecy. Even if the specifics of information
discussed with members of the press were redacted to omit
grand jury material (and it is hard to see what use the
questioning would be if the answers were so limited), the fact
that the redaction was made at all would give rise to infer-
ences about the substance of grand jury material when put
together with the context of the answer and the identity of
the media representative who authored it. Moreover, even if
certain information discussed with members of the press
regarding the course of the investigation, such as investiga-
tive leads ultimately not pursued, was considered not to be
"matters occurring before the grand jury" and thus would not
be subject to redaction, its revelation would still provide
useful clues as to the direction of the prosecutors' efforts. In
sum, we cannot envision how a useful inquiry could be
conducted about what the IC or members of his staff told the
press about certain matters relevant to the grand jury's
investigation without disclosing the focus of the investigation
(or, minimally, the areas or individuals not being focused
on).14 We must conclude, therefore, that the drafters of Rule
6(e)(2) intended that proceedings to ferret out violations of
the grand jury secrecy rule should not themselves present an
undue risk of compromising that very secrecy. See, e.g.,
McQueen, 1998 WL 217538, at *9 ("[L]iberal discovery rules
in civil suits ... would expose grand jury deliberations, the
identity of grand jurors, and other grand jury members to
the public. This would not only inhibit the grand jury's
deliberative process, it would potentially expose grand jury
members, government lawyers and agents, and witnesses to
outside pressures and possible danger. In short, it would
eviscerate the very protections to the grand jury process Rule
__________
14 While we cannot permit the IC's assertions of risk to the
grand jury to act as an impenetrable shield against the progress of
a Rule 6(e)(2) investigation, we must give some credence to his
assertions, since we are not privy to the status or the substance of
the grand jury's investigation.
6 was intended to provide."); Blalock, 844 F.2d at 1559 n.19
(Tjoflat, J., specially concurring) (inquiry into status of grand
jury's investigation, "especially when conducted in the context
of an adversarial civil contempt proceeding, would inevitably
lead to the disclosure of grand jury matters, the very vice
Rule 6(e)(2) was designed to avoid"); Donovan v. Smith, 552
F. Supp. 389, 390 (E.D. Pa. 1982) (denying defendants' re-
quest to depose lead government attorney and thereby "in-
trud[e] into his knowledge regarding the prosecution of this
action").
There is a further impediment to treating a Rule 6(e)(2)
proceeding in all respects like a typical civil adversarial
proceeding. It would almost certainly engage the district
court and the prosecutor in lengthy collateral proceedings
and in so doing divert the grand jury from its investigation.
How, for instance, could counsel for a Rule 6(e)(2) plaintiff be
permitted to engage in discovery and in-court examination of
government witnesses without granting the government's at-
torney a similar opportunity to depose movants' counsel,
movants' associates, and, indeed, the movants themselves if
they could be shown to have relevant information about how
the leaks really occurred? After all, if the government seeks
to prove that it is not the source of the information reported,
it has an interest in identifying the true source. By setting
forth a simple, two-step framework, we believe Barry sought
to achieve a swift resolution of an alleged Rule 6(e)(2) viola-
tion and to put an immediate stop to any leaks while not
unduly interfering with the work of the grand jury with a full-
blown sidebar trial on the Rule 6(e)(2) issue. See Barry, 865
F.2d at 1326 (show cause hearing "carries little threat of
conflict with the grand jury proceedings") (internal quotation
omitted); cf. United States v. Dionisio, 410 U.S. 1, 17 (1973)
("Any holding that would saddle a grand jury with minitrials
... would assuredly impede its investigation and frustrate
the public's interest in fair and expeditious administration of
the criminal laws."); Eisenberg, 711 F.2d at 966 (targets
should not be permitted access to information that "would
permit them to embark upon a broad scale investigation of
their own").
Given the lack of guidance in Barry on how to conduct the
rebuttal phase of a Rule 6(e)(2) inquiry, it is not surprising
that the district court proceeded as it did. Nevertheless, we
believe that the risks of even inadvertent disclosure of grand
jury matters and the specter of unnecessary detraction from
the main business of the grand jury's investigation are simply
too serious to allow the movants[
]full access to all relevant materials produced
by the government or to let them conduct direct or cross-
examination of government investigative personnel during
ongoing grand jury proceedings. In our view, Barry did not
contemplate such an adversarial evidentiary hearing as the
next stage following a prima facie case. Indeed, we have
been hard pressed to find any case in which a Rule 6(e)(2)
proceeding has been conducted in such a manner; in all
reported cases brought to our attention, in camera and/or ex
parte proceedings have been the norm. See, e.g., Eisenberg,
711 F.2d at 966 (prohibiting preindictment participation by
targets); Barry v. United States, 740 F. Supp. at 888, 894
(D.D.C. 1990) (district court holds government's documentary
submission sufficient to rebut prima facie case); Donovan,
552 F. Supp. at 390 (court holds in camera proceeding in
which government responded to questions submitted to court
by defense counsel and by court); see also Paul S. Diamond,
Federal Grand Jury Practice and Procedure s 10.02 (3d ed.
1997) ("It is rare indeed for a court to require that the
government meet its burden under Rule 6 by presenting the
testimony of its attorneys and agents, thus subjecting them to
cross-examination. There is obvious potential for defense
abuse of the government and interference with the grand jury
were the courts to require live rebuttal testimony in all
cases.") (footnote omitted); cf. Barry, 865 F.2d at 1326 (char-
acterizing request to disclose grand jury matters as "extraor-
dinary"). In balancing the movants' right to discovery and
direct participation in questioning the IC or his prosecutors
against the interest in maintaining grand jury secrecy, we
must inevitably give priority to ensuring that a proceeding to
enforce the protections of Rule 6(e)(2) does not ultimately
subvert the rule itself.15
B. The Appropriate Procedure
We will now endeavor to set forth the contours of how a
show cause hearing may proceed once a prima facie case has
been established, recognizing that within these boundaries,
the district court should have sufficient leeway to establish
procedures it believes will assist it best in discovering the
truth of the matter while at the same time not causing undue
interference with either the work of the grand jury or that of
the district court itself.
We find the Eleventh Circuit's decision in Eisenberg to be
the most useful precedent on the direction the show cause
hearings should take. In Eisenberg, the targets of two grand
juries filed motions in district court alleging violations of Rule
6(e)(2) and submitting as proof various newspaper articles
that reported government agents and attorneys as the source
of the information disclosed. The district court, after finding
the articles conclusively established the existence of a Rule
6(e)(2) violation, ordered counsel for the government to iden-
tify to counsel for the targets "each government attorney,
officer, agent, or employee with access to the aforedescribed
__________
15 Our decision to limit direct movant participation at this
second stage of the show cause hearing is further fueled by the
immediacy of the potential harm to the grand jury. As we under-
stand it, this grand jury is still hearing testimony, and while the
interest in grand jury secrecy does not disappear altogether after
the investigation is concluded, see Douglas Oil, 441 U.S. at 222, it is
at its most intense while the investigation is ongoing. See, e.g., In
re Grand Jury Subpoena, 72 F.3d 271, 275 (2d Cir. 1995) ("The
government represents that the grand jury investigation here is
very much ongoing, thereby heightening the government's interest
in secrecy."). Indeed, it would obviously be futile to invoke civil
contempt sanctions, which are intended to be forward-looking and
prophylactic, if grand jury proceedings were already concluded.
This requires that extra care be taken in structuring appropriate
Rule 6(e)(2) proceedings to ensure that the course of the grand
jury's investigation is not diverted.
grand jury matters" as well as to furnish affidavits executed
by each such person that included the identity of any news
media representative with which they had communicated and
the circumstances and substance of each communication. Id.
at 962 (internal quotation omitted). As in our case, the
government in Eisenberg did not contest the district court's
conclusion that the news articles submitted established a
prima facie case or that it was required to provide the
designated information to the court for its consideration.
The government did challenge, however, just as the IC does
here, any requirement that it furnish that information directly
to the targets at a time before any indictments had yet
issued. Id. at 963-64.
The Eleventh Circuit reversed the district court's order to
produce information about the press disclosure to the targets
before indictments had been issued or the grand jury's inves-
tigation had ended. Ruling that the articles established only
a prima facie case, the Court of Appeals nonetheless found it
appropriate for the district court to have ordered the govern-
ment "to take steps to stop any publicity emanating from its
employees" before moving to a consideration of whether the
government had in fact violated Rule 6(e)(2) by past disclo-
sures. Id. at 964. The court stated decisively, however, that
the targets should not be allowed to participate directly in
this inquiry as to the government's culpability. Rather, the
district court should first have conducted an in camera
review of the government's proffer of evidence as to its
conduct:
[W]e do not think the court properly balanced the tar-
gets' interest in the information with the harmful effects
that could follow the disclosure to targets' counsel of
names of all the government employees involved in the
investigation.... Such information could lead counsel to
call upon those government agents and attempt to inter-
view them; news would spread that the attorneys for the
targets were invading the province of the grand jury;
and prospective witnesses could be intimidated from
testifying.
Id. at 965. As a result, the Eisenberg court held that the
information identified by the district court "should first be
furnished to the district court in camera"; after reviewing
this material, the district court could then determine whether
further proceedings were necessary as well as the extent of
the targets' involvement in those proceedings. Id. at 966.
Admittedly, Eisenberg does not provide all the answers. It
is not entirely clear, for example, whether the Eisenberg
court contemplated that the in camera review of the govern-
ment's rebuttal evidence might, if it failed to satisfy the judge
as to the government's innocence or guilt, be followed by a
hearing in which the targets' counsel would be allowed to
participate in order to determine the existence of a violation,
see id. ("The court may subsequently determine whether a
hearing should be held on the alleged government violations
of Rule 6(e) and whether counsel for targets should be
present at the hearing."), or whether the court would make
the decision on the existence of a violation by itself and invite
the presence of the targets' counsel only at the remedy stage,
see id. at 965 ("Once the court determines that Rule 6(e) has
been violated, the court may properly inform the targets'
counsel of the names of the violators. Targets' counsel may
then play a proper role in hearings involving imposition of
contempt sanctions on government employees."). To the
extent Eisenberg can be read to suggest that counsel for Rule
6(e)(2) plaintiffs should be permitted to play an adversarial
role in the show cause hearing, we cannot agree. We do find
persuasive, however, the Eisenberg court's conclusion that in
camera review of the government's ex parte proffer is the
most appropriate way to conduct proceedings in Rule 6(e)(2)
cases and protect grand jury secrecy.
The use of in camera review in proceedings collateral to a
grand jury investigation is by no means novel. District
courts are often required to conduct an in camera review of
grand jury material requested under Rule 6(e)(3)(C)(i) 16 to
__________
16 Rule 6(e)(3)(C)(i) permits disclosure of "matters occurring
before the grand jury" when "so directed by a court preliminary to
or in connection with a judicial proceeding." Fed. R. Crim. P.
6(e)(3)(C)(i). Parties seeking such material must show "that the
material they seek is needed to avoid a possible injustice in another
determine what material, if any, is responsive to the need
asserted by the requesting party; this in camera review "is
necessary due to the paramount concern of all courts for the
sanctity and secrecy of grand jury proceedings." Lucas v.
Turner, 725 F.2d 1095, 1109 (7th Cir. 1984); see also In re
Special Grand Jury 89-2, 143 F.3d 565, 572 (10th Cir. 1998);
S. Rep. No. 95-354, at 8 (1977), reprinted in 1977
U.S.C.C.A.N. 527, 532 ("It is contemplated that the judicial
hearing in connection with an application for a court order by
the government under subparagraph (3)(C)(i) should be ex
parte so as to preserve, to the maximum extent possible,
grand jury secrecy."). Similarly, courts often use in camera,
ex parte proceedings to determine the propriety of a grand
jury subpoena or the existence of a crime-fraud exception to
the attorney-client privilege when such proceedings are nec-
essary to ensure the secrecy of ongoing grand jury proceed-
ings. See, e.g., In re Grand Jury Nos. 95-7354, 96-7529 and
96-7530, 103 F.3d 1140, 1145 (3d Cir.), cert. denied sub nom.
Roe v. United States, 117 S. Ct. 2412 (1997) ("Ex parte in
camera hearings have been held proper in order to preserve
the ongoing interest in grand jury secrecy."); In re Grand
Jury Proceedings, Thursday Special Grand Jury Sep. Term,
1991, 33 F.3d 342, 353 (4th Cir. 1994) ("[T]he government's
proffer [as to the existence of the crime-fraud exception] was
made in camera because it concerned matters subject to an
on-going investigation before the grand jury."). Although in
camera, ex parte submissions "generally deprive one party to
a proceeding of a full opportunity to be heard on an issue," In
re John Doe Corp., 675 F.2d 482, 490 (2d Cir. 1982), and thus
should only be used where a compelling interest exists, see,
e.g., In re John Doe, Inc., 13 F.3d 633, 636 (2d Cir. 1994), we
find that the nature of a Rule 6(e)(2) hearing, particularly
when conducted during an ongoing grand jury investigation,
involves such a compelling interest. See, e.g., In re Grand
Jury Proceedings, 33 F.3d at 353 (holding that "in camera
proceedings in the context of grand jury proceedings and on-
__________
judicial proceeding, that the need for disclosure is greater than the
need for continued secrecy, and that their request is structured to
cover only material so needed." Douglas Oil, 441 U.S. at 222.
going investigations requiring secrecy are not violative of due
process" despite lack of opportunity to rebut government's
proffer); In re John Doe, 13 F.3d at 636 ("[W]here an in
camera submission is the only way to resolve an issue without
compromising a legitimate need to preserve the secrecy of the
grand jury, it is an appropriate procedure."); In re John Doe
Corp., 675 F.2d at 490 ("We recognize that appellants cannot
make factual arguments about materials they have not seen
and to that degree they are hampered in presenting their
case. The alternatives, however, are sacrificing the secrecy
of the grand jury or leaving the issue unresolved at this
critical juncture.").
In light of these concerns, we conclude that the show cause
hearing in this instance should not proceed in a fully adver-
sarial manner when only a prima facie case has been made.
We emphasize, however, that the burden of rebutting the
prima facie case will lie with the IC, who must now come
forward with evidence, in whatever form the district court
requires (including affidavits, depositions, production of docu-
ments, or live testimony) to rebut the inferences drawn from
the news articles that established the prima facie case of a
Rule 6(e) leak to the press by personnel in or "close to" the
IC's office. This evidence should be submitted ex parte and
in camera for the district court's review. Because the gov-
ernment must negate at least one of the two prongs of the
prima facie case--by showing either that the information
disclosed in the media reports did not constitute "matters
occurring before the grand jury" or that the source of the
information was not the government--relevant evidence
might include "what actually occurred before the grand jury,
whether the purported grand jury disclosures are accurate,
the identities of its employees with access to any of the grand
jury information disclosed, and whether these individuals in
turn provided any such information to the media," Barry, 740
F. Supp. at 890, as well as evidence as to the IC's general
policies concerning press contacts, evidence as to the actual
source of information reported by the press, or evidence
describing any actual exchanges between a member of the
IC's staff and a member of the press associated with one of
the identified reports. The district court's task at this stage
is to review the IC's evidentiary submissions and determine
whether they are sufficient to rebut the movants' prima facie
case--in other words, whether the evidence presented by the
government is sufficient to render the identified press re-
ports 17 inaccurate either in their characterization of material
as grand jury related or in their identification of the source of
the information. If the district court determines that the
IC's submission is insufficient to rebut the prima facie case,
or, indeed, if the IC or a member of his staff admit to
violations, no further proceedings are necessary, and the
district court may proceed to find that a Rule 6(e)(2) violation
has occurred and determine the appropriate remedy. The
announcement of the court's finding should be available to the
movants and their participation in any remedy hearing pre-
sumptively allowed. If, on the other hand, the district court
determines that the IC's submission conclusively rebuts the
prima facie case, the show cause order should be dis-
charged.18 In either event, this first stage should be ex parte
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17 Although Barry makes reference to a determination of
whether there has been a "pattern or practice of impermissible
disclosures of grand jury material," see Barry, 865 F.2d at 1325,
this should not be construed as requiring the district court to
extend the Rule 6(e)(2) inquiry beyond the news articles submitted
by the movants. Indeed, in order to limit the district court's
function to adjudication rather than investigation, we find it entirely
appropriate to limit any findings to those articles.
18 Because it is unlikely that a news report will attribute the
disclosure of purported grand jury material to a specific individual,
it is possible that a showing as to each individual associated with the
IC who has access to certain material will be required to constitute
sufficient rebuttal. Cf. Lance, 610 F.2d at 219 ("The inability to
show a definite source for some of the information contained in the
articles might cause a prima facie case to fail if a responsive
affidavit denying the allegations is made."). We note that pursuant
to Rule 6(e)(3)(B) of the Federal Rules of Criminal Procedure, the
IC is required to provide to the district court the names of any
government personnel who have been made privy to grand jury
material in order to assist the IC in his investigation.
and in camera in order to minimize the intrusion on the
interests protected by Rule 6(e)(2).
If, however, after review of the government's rebuttal case
the district court finds that it cannot make an adequate
determination as to whether a violation of the rule has
occurred, or if the district court cannot identify with certainty
the individual or individuals responsible, further proceedings
may be appropriate. Although the district court should take
care to protect the secrecy of the grand jury investigation by
continuing to conduct the proceedings in camera and ex
parte, we do not wish unnecessarily to cabin the district
court's discretion as to the type of factfinding tools it may
use. The court may, for example, request further affidavits
or other types of documentary evidence from either the
government or the movants; it may request that a member of
the IC's staff or another witness answer questions of the
court or questions submitted by the movants upon the court's
invitation; the court may, if it so chooses, appoint a special
master or other individual to collect evidence and submit a
report to the district court for its review and adjudication.
See, e.g., Eisenberg, 711 F.2d at 966 ("We can conceive of
circumstances where a district court could seek the appoint-
ment of a special counsel to assist the court in determining
whether Rule 6(e) violations had occurred.").19
If at the end of the day the district court determines that a
violation of Rule 6(e)(2) has occurred, it may report this
finding to the movants and identify the government agent or
attorney responsible for the disclosure.20 See Eisenberg, 711
F.2d at 965. The movants may then participate in determin-
ing the appropriate remedy, which, as we have noted, may
include equitable relief, contempt sanctions, or both, see
__________
19 The movants acknowledged before the district court, and the
IC stated in oral argument before this court, that the involvement
of such an individual might be appropriate. See Prehearing Memo-
randum of President Clinton (March 10, 1998), at 3.
20 Ordinarily, the court should not reveal the precise substance
of the disclosure to the movants, as this would tend to reveal
"matters occurring before the grand jury."
Barry, 865 F.2d at 1321-22, keeping in mind that the relief
granted should be "carefully tailored to avoid unnecessary
interference with grand jury proceedings," id. at 1323. Final-
ly, the district court must keep a transcribed record of what
transpired in any in camera proceeding; should the grand
jury ultimately issue indictments, the indicted party or par-
ties may request the transcript of the Rule 6(e)(2) proceed-
ings in order to determine whether to contest any indictment
on the basis of the violation. See Eisenberg, 711 F.2d at 965;
Fed R. Crim. P. 6(e)(3)(C)(ii) (disclosure of grand jury matters
permitted "at the request of the defendant, upon a showing
that grounds may exist for a motion to dismiss the indictment
because of matters occurring before the grand jury").21
IV.
We are keenly aware that allegations that a government
official has violated Rule 6(e)(2) are not to be taken lightly.
As Justice Frankfurter noted, "[t]o have the prosecutor him-
self feed the press with evidence ... is to make the State
itself through the prosecutor, who wields its power, a con-
scious participant in trial by newspaper, instead of by those
methods which centuries of experience have shown to be
indispensable to the fair administration of justice." Stroble v.
California, 343 U.S. 181, 201 (1952) (Frankfurter, J., dissent-
ing). It is the very interests in protecting grand jury secrecy
underlying the rule, however, that call for the utmost discre-
tion on the part of the courts to ensure that the rule is not
breached in the very act of rooting out violations. We believe
the intent of Barry in characterizing the inquiry into Rule
6(e)(2) violations as civil is honored by allowing the movants
to identify any violations of the rule and, if necessary, to
participate in crafting a remedy designed to stop further
violations. Any direct participation in deciding whether a
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21 At this stage an adversarial presentation may be appropriate,
since "[w]hat appears to be harmless to a district judge may be
prejudicial if seen in light of a defense counsel's special familiarity
with a given prosecution." United States v. Fowlie, 24 F.3d 1059,
1066 (9th Cir. 1994).
violation has occurred and by whom should be allowed by the
district court only in extraordinary circumstances and as a
last resort. The procedure we have outlined is designed to
"allow the court to focus on the culpable individual rather
than granting a [discovery] windfall" to the movants. Bank
of Nova Scotia v. United States, 487 U.S. 250, 263 (1988).
We have decided the merits of the IC's challenge to the
district court orders by granting its petition for writ of
mandamus. Accordingly, we dismiss the appeal in No.
98-3077 et al., vacate the procedural aspects of the district
court's orders of June 19 and June 26, and remand for further
proceedings consistent with this opinion.
It is so ordered.