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In re Sealed Case

Denial of plaintiffs' motion affirmed where plaintiffs sought to require the government to show cause why it should not be held in contempt for divulging grand jury testimony to the judge hearing a related qui tam case under seal; prosecuting attorneys followed up with a proper motion to the grand jury court for transmittal of the testimony to the qui tam court, so holding the government in civil contempt would have served no useful purpose.

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Argued February 8, 2001

A witness before a grand jury sitting in the United States District Court for the District of Columbia testified that he had received a copy of the qui tam complaint in a certain sealed civil proceeding then pending before a different federal district court. Two prosecuting attorneys from the Department of Justice, acting upon their own initiative and without the approval of the court supervising the grand jury (hereinafter sometimes referred to as the grand jury court), informed the judge hearing the qui tam case of the breach of the seal and provided him with a summary of the witness’s testimony before the grand jury. That judge then sent a letter to the district court here requesting a copy of the relevant testimony, and the Government moved the court ex parte to transmit the testimony pursuant to Federal Rule of Criminal Procedure 6(e)(3)(E). The court acceded and ordered the relevant portions of the grand jury transcript transmitted to the court that had requested them (hereinafter sometimes referred to as the qui tam court).

The plaintiffs in this case, including the witness who testified before the grand jury about the breach of the seal, are also plaintiffs in the qui tam action; they are aggrieved because divulgement and subsequent transmission of the grand jury testimony have jeopardized their entitlement to share in the financial settlement in the civil case. The plaintiffs appeal from the district court’s denial of two motions: one requesting that the Government be ordered to show cause why it should not be held in contempt for violating Rule 6(e) by divulging to the qui tam court a matter occurring before the grand jury; and another seeking vacatur of the district court’s order transmitting the testimony to that court because the order did not comply with the requirements of Rule 6(e)(3)(E).

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