(dissenting) .
This is a private civil action for damages, between the buyer and sellers of equipment. The rules governing the triál of such a case are the Federal Rules of Civil Procedure, as interpreted by the federal courts, or as modified by agreement of the parties. The fact that this case is one of the eighteen-hundred-odd electrical anti-trust cases is not, in my opinion, a sufficient showing of the “particularized need in case of [this] one witness” required by the Supreme Court as a prerequisite to the opening up of *243grand jury records. United States v. Procter and Gamble, 1958, 356 U.S. 677, 683, 78 S.Ct. 983, 2 L.Ed.2d 1077.
In general, I agree with many of the majority’s abstract statements of the law governing the production of grand jury testimony. I agree that whether such records are to be produced is initially a decision to be made by the trial judge in the exercise of sound judicial discretion. The same standards apply here (though perhaps more strictly) that govern the production of documents, etc. by parties under Rule 34, or by third persons or parties under Rule 45, F.R.Civ.P. See Procter and Gamble, supra. In fact, it would seem that the utilization of one of these Rules is the only manner by which the records may be extracted from their custodian in a non-government case.
After a motion to quash of modify the subpoena is made under Rule 45, and when a motion to produce is made under Rule 34, the burden is on the party seeking production to show “good cause” and a “need” for the documents. Rules 34 and 45, F.R.Civ.P.; Procter and Gamble, supra; Hickman v. Taylor, 1947, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451; Herron v. Blackford, 5 Cir., 1959, 264 F.2d 723. Of course, in the case of an attempted disclosure of grand jury testimony, the interests at stake are not only those of the parties, or of the custodian, or of the grand jury witness who is called upon to testify, but also of the general public — an interest in preserving the traditional secrecy of the grand jury proceedings. Any workable concept of procedure would require that there be reasonable opportunity for an objection to be made. There was no such opportunity here.
As I understand the facts of this case, the deposition master was in possession of the transcript at all times, and had obtained it when these discovery proceedings began, under the authority of an opinion rendered by Chief Judge Clary of the District Court of the United States for the Eastern District of Pennsylvania, in another case, City of Philadelphia v. Westinghouse Electric Corp., E.D.Pa., 1962, 210 F.Supp. 486. The grand jury before whom the testimony here concerned was given sat in that district. But it would seem that production vel non is a decision for the judge trying the case in which the records are sought to be used.
In other words, no “particularized need” or “good cause” was shown before the testimony was released. As I read Judge Clary’s ruling, any deposition master may obtain the transcripts in any of these cases at any time for his examination as discovery progresses. I believe this does not conform to the letter or spirit of the Rules and that the course followed observed much too loose a standard than that which must be used when dealing with “the grand jury as a public institution serving the community [which] might suffer if those testifying today knew that the secrecy of their testimony would be lifted tomorrow.” Procter and Gamble, supra, 356 U.S. at 682, 78 S.Ct. 987, 2 L.Ed.2d 1077. District Courts sitting in this Circuit are not, in my opinion, released from compliance with the Rules by Judge Clary’s proffer and delivery of the minutes.
The particular problem before us has never been passed upon by the Supreme Court. At stake is a vast amount of secret testimony which may be disclosed in some eighteen hundred cases. It is my opinion that the procedure here utilized is not without manifest infirmity; and I am not willing to give countenance to it until so instructed by the Supreme Court.
I raise two other questions as to the ' correctness of the procedures followed below. The “need” relied upon by appel-lees seems to be revealed by hindsight. Compare the general proposition that the existence of “probable cause” is tested in the light of information available when action is taken, not in considering what is later discovered. Not until the master compared the testimony as disclosed in the transcript before him with the statements made by the witness could any need for disclosure have been demonstrated. Only he knew what he saw. *244There was no other showing. Under such a procedure, evidence of need, if such can be shown, does not appear before the documents are produced.1 Thereby the purpose of the requirements is defeated. This attitude does not necessarily contemplate that the showing of a contradiction between the deposition and the grand jury testimony must be made before the transcript can be released, Pittsburgh Plate Glass Co. v. United States, 1959, 360 U.S. 395, 400-401, 79 S.Ct. 1237, 3 L.Ed.2d 1323; but at least there must be some factual showing of the need of the particular witness’ testimony before the transcript is released. This seems to me to be the teachings of the latest Supreme Court cases relating to the subject, Procter and Gamble and Pittsburgh Plate Glass, supra.
The mere fact that these anti-trust cases are “complex, long drawn out, and expensive to prosecute” is no excuse. Procter and Gamble, supra, 356 U.S. at p. 683, 78 S.Ct. at pp. 986-987, 2 L.Ed.2d 1077. It is not here necessary to discuss what factual showings would suffice to invoke the discretion of the Court, for here no showing of any sort was made.
In my opinion, too, the principle is not here followed that disclosure should never be made solely for discovery purposes. In Judge Clary’s opinion, Westinghouse, supra, 210 F.Supp. at p. 490, he expressly stated that rule. The government, in reply to Judge Clary’s invitation for an expression of views on the subject stated: “It is the government’s view that no disclosure should be made for discovery purposes.”
The taking and use of depositions, insofar as here applicable, is governed for the most part by Rule 26, F.R.Civ.P. Depositions may be used for “discovery or for use as evidence.” Rule 26(a). The deposition of witness McMullen was taken under Rule 26. Pre-Trial Order No. 8. The deposition-taking was discovery; the deposition taken may or may not he used as evidence. This is true of all depositions, i. e., until the trial on the merits, and until the deposition is offered in evidence, depositions are discovery tools. The deposition of Mr. McMullen is no more a “trial” deposition than any other deposition taken in any civil case.
This is not to say that grand jury testimony can never be disclosed at the discovery stage; Procter and Gamble involved discovery. But the possibility that the party “would be greatly prejudiced or that without reference to [the transcript] an injustice would be done,” Procter and Gamble, supra, 356 U.S. at page 682, 78 S.Ct. at page 986, 2 L.Ed.2d 1077 is not nearly so great at the discovery stage. Review of the lower court’s ruling on this point is not a review of the trial judge’s exercise of discretion, but of whether he was proceeding under the mistaken legal notion that these “National Depositions” are not discovery depositions and, thus, not governed by the stricter standards thereby imposed.
I am of the view that the cases decided by the lower federal courts 2 denying disclosure of the grand jury proceedings under similar circumstances represent the better view and cannot be distinguished in principle, and that any contraction of the policy favoring the secrecy of grand jury proceedings must be made, if made at all, by the Supreme Court. I, therefore, dissent.
. The record does not reveal that Judge Boldt was designated 'to serve as a District Judge for the Southern District of Florida. Indeed, to the contrary, it reveals that he was sitting as a Special Master. It would seem that only the District Judge could order the documents produced. There is no showing that Chief Judge Dyer heard the testimony, read the transcript or read the depositions, and his “approval” is, in my opinion, not sufficient. This objection to the procedures followed is in addition to others noted in the text.
. See page 236 majority opinion.