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In re Grand Jury 95-1

ELR Citation: 27 ELR 21391
Nos. 96-1543, 118 F.3d 1433/(10th Cir., 07/08/1997)

The court holds that a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) defendant is not entitled to access to materials from an earlier grand jury proceeding conducted by the judge presiding over the CERCLA trial. The court first holds that defendant does not need the grand jury materials to avoid possible injustices in the civil proceeding. His alleged need for the grand jury materials is general and vague. His motion seeking access to the materials did not even mention the pending motion for disqualification of the judge in the civil action as a basis for disclosure. And defendant's counsel candidly acknowledged that he did not know whether the materials would help or hurt the motion for disqualification. This acknowledgement clearly indicates the speculative nature of defendant's assertion that the district court judge was privy to disparaging grand jury information and suggests that defendant simply was interested in engaging in a fishing expedition. Even assuming defendant is sincere in his desire to obtain the grand jury materials to support his motion for disqualification, the court further concludes that disclosure of the materials is unnecessary to effectively argue that motion or to receive a fair ruling. Whether the district court judge's review of the grand jury materials, in the course of performing his judicial duties in presiding over the grand jury proceedings, can result in personal knowledge of disputed evidentiary facts can be decided as a matter of law without disclosure of the materials. The court also concludes that whether the district court judge's conduct has created the appearance of impropriety can be accomplished by an in camera review rather than through direct disclosure to defendant's counsel in the civil action. Next, the court holds that in this case, the interest in continued grand jury secrecy far outweighs defendant's alleged need for the materials, because defendant failed to demonstrate a compelling need for disclosure of the documents. The court therefore reverses the district court decision granting disclosure.

Counsel for Appellant
Kenneth R. Scott, Ass't U.S. Attorney
U.S. Attorney's Office
1961 Stout St., Rm. 1200, Denver CO 80294
(303) 844-2081

Counsel for Appellee
Lee D. Foreman
Haddon, Morgan & Foreman
150 E. 10th Ave., Denver CO 80203
(303) 831-7364

Before BRISCOE, LOGAN, and LUCERO, Circuit Judges.