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In re In re November 1979 Grand Jury (Velsicol Chem. Corp. v. United States)

ELR Citation: 10 ELR 20232
Nos. Nos. 79-2480, -2507, 616 F.2d 1021/(7th Cir., 03/11/1980)

The Seventh Circuit Court of Appeals affirms a district court's orders refusing to quash subpoenas to petitioners' former outside counsel or to terminate a grand jury investigation of the withholding of information concerning the carcinogenicity of the pesticides heptachlor and chlordane from the Environmental Protection Agency (EPA). The court concludes initially that petitioners' appeals need not be dismissed for lack of jurisdiction over non-final orders. The court then determines that an earlier district court decision, 9 ELR 20713, dismissing a prior indictment on the basis of misconduct by a prosecutor before a 1976 grand jury did not prohibit consultation between the former prosecutor and current prosecutors regarding the filing system for evidentiary documents. Nor did the prior dismissal order bar all future use of the work product and documentary evidence gathered during the earlier investigation. The ruling was based primarily on the presence of a biased prosecutor in the grand jury room and did not hold that all the evidence gathered by the government was irretrievably tainted. Because there is no indication that the earlier order has been violated, the lower court did not act improperly in determining that an evidentiary hearing on the matter was unnecessary. Finally, the court upholds the district court's denial of the motion to quash after determining that the prior waiver of the attorney-client privilege with respect to all communications between Velsicol and outside counsel by petitioners' general counsel is still effective.

Counsel for Petitioners
Robert Markowski
Jenner & Block
One IBM Plaza, Chicago IL 60611
(312) 222-9350

Counsel for Respondent
Angus Macbeth, Deputy Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2709

Before CUMMINGS, SPRECHER, and WOOD, Circuit Judges.