Justice Manual § 9-11.254

In 1996, the Deputy Attorney General approved the following Guidelines for "Handling Documents Obtained by the Grand Jury." The Guidelines, written by a working group composed of representatives of each of the litigating Divisions, the Executive Office for United States Attorneys, and the Office of Information and Privacy, address the need to establish and follow proper recordkeeping procedures regarding evidence obtained by the grand jury.

The Department of Justice routinely receives requests for access to documents from Congress, from individuals or entities filing requests pursuant to the Freedom of Information Act (FOIA), and from private and government lawyers engaged in civil litigation. Records retention practices can make it difficult to identify what evidence may properly be provided in response to a request and may hamper the proper use of non-grand jury information by civil attorneys of the Department. For example, if a file marked "Grand Jury" includes documents obtained by grand jury subpoena and documents otherwise obtained, it is difficult in some instances to determine whether the Rule 6 limitations on disclosure apply to certain documents in the file. The task is more difficult in those situations where the prosecutor who handled the grand jury matter is no longer in government service. The Guidelines, which apply to the United States Attorneys and to the litigating Divisions of the Department, will make it easier to determine those documents that reveal matters occurring before the grand jury and those that do not.

Although local practice, local rules, and case law varies to some extent among the Circuits, every effort should be made to apply a consistent procedure that will maintain the integrity of evidence obtained by the grand jury and, at the same time, assist in identifying what are "matters occurring before a grand jury." This will enable a clear and proper determination of what material can and should be released to a FOIA requestor and what documents may be shared with attorneys for the government engaged in civil litigation. Generally, government attorneys who are handling only civil cases do not have automatic access to grand jury materials but may obtain access to such materials only upon court order issued pursuant to Fed. R. Crim. P. 6(e)(3)(C)(i). See United States v. Sells Engineering, Inc., 463 U.S. 418, 427 (1983). A specific exception has been created for certain banking financial matters. See 18 U.S.C. § 3322.

Accordingly, whenever it is practicable to do so, prosecutors obtaining evidence in a criminal investigation should use the following procedures. These procedures supplement those described in the Department's Federal Grand Jury Practice Manual, January 1993, pages 106 through 120. The procedures do not create any rights in third parties:

Guidelines for Handling Documents Obtained by the Grand Jury

Consider Alternatives. Before issuing a grand jury subpoena, prosecutors should consider what evidence has already been collected through other means and whether a voluntary request, contractual obligation, inspector general subpoena, civil investigative demand or other compulsory process is available to obtain the information sought. Those methods may be just as effective as a grand jury subpoena in obtaining information but their use may avoid grand jury secrecy issues.

Identify a Custodian. As early as practicable, a prosecutor should determine who will have custody of original documents and real evidence, and where such documents and evidence will be maintained. If the case agent is to have custody, the grand jury should authorize him to maintain the evidence; but, unless required by local rule, the grand jury should not make him an "agent" of the grand jury. (As explained at footnote 234 on page 107 of the Federal Grand Jury Practice Manual, prosecutors are discouraged from swearing in an investigator as an agent of the grand jury). Prosecutors should not commingle original documents and real evidence obtained by grand jury subpoena with evidence obtained by other means.

a. Create an Identification System. Upon receipt, prosecutors should number, then copy, documents and real evidence -- however they are obtained. The originals should then be secured. If the volume of documents is great, prosecutors should consider microfilming them. Numbering and securing the originals in the order in which they are obtained will facilitate access to the evidence and make it easier for prosecutors to create a record of how, and from whom, the evidence was obtained. For example, use of an identification system, such as a list of the documents by their identifying numbers under topic headings, permits the government to respond more efficiently to FOIA requests and better enables prosecutors to support a decision to withhold documents should a court demand an explanation of the basis for claiming that the documents are covered by Rule 6(e). See Church of Scientology International v. United States Dep't of Justice, 30 F.3d 224 (1st Cir. 1994 ). As the Federal Grand Jury Practice Manual explains (at pp. 157-59), documents not covered by Rule 6(e) include materials obtained or created independently of the grand jury, so long as their disclosure does not otherwise reveal what transpired before or at the direction of the grand jury, see In re Grand Jury Matter (Catania), 682 F.2d 61, 64 (3d Cir. 1982). Similarly, Rule 6(e) does not cover documents, even subpoenaed documents, that are sought for the information they contain, rather than to reveal the direction or strategy of the grand jury. See, e.g., DiLeo v. Commissioner of Internal Revenue, 959 F.2d 16, 19 (2d Cir. 1992). Accord Washington Post Co. v. United States Dep't of Justice, 863 F.2d 96, 100 (D.C. Cir. 1988); Senate of Puerto Rico v. United States Dep't of Justice, 823 F.2d 574, 582-84 (D.C. Cir. 1987).

b. Make the System Simple. The identification system should be simple but it should permit the prosecutor to determine the source of the evidence and how it was obtained (i.e., whether the evidence was in response to a grand jury subpoena and, if so, which subpoena). The identification system also should permit the prosecutor to determine what use the grand jury made of the evidence: what evidence generally was made available to the grand jury, what evidence was physically offered and made available to the grand jury, and what evidence was entered as an exhibit or otherwise formally presented to the grand jury.

At All Times, Maintain an Unmarked Set of Documents.Where appropriate, prosecutors should clearly mark the file cabinet, box or file in which subpoenaed evidence is maintained as containing grand jury subpoenaed records. But as the Department's Guide on Rule 6(e) advises, no grand jury marking or stamp should be affixed to the original documents themselves. See United States Department of Justice Guide on Rule 6(e) After Sells and Baggot, Jan. 1984, at 53. If a document is to be marked as an exhibit and presented to the grand jury, prosecutors should use a copy of the original or, if for some reason the original of a document must be entered as an exhibit before the grand jury, prosecutors should endeavor to place the exhibit sticker on a folder or an envelope containing the document and not on the document itself. (If a document is placed in an envelope, it should be adequately identified for the record.)

The Security of Evidence Must be Maintained. Prosecutors should take whatever precautions are necessary to protect grand jury materials, including, generally, keeping them in a locked file cabinet in a locked room. If information from the documents is entered into a computer, the prosecutor should make sure that the data are secure or kept on a disc that can be secured.

Informing the Grand Jury of Available Evidence. The practice of bringing all subpoenaed documents before the grand jury varies among jurisdictions. Providing notice to the grand jury that the custodian or case agent has reviewed the documents may be legally sufficient, regardless of local custom. At a minimum, however, prosecutors should keep the grand jury apprised of the location and organization of the documents.

The foregoing procedures should help ensure that documents obtained during an investigation are maintained in a system that allows easy access to original documents, that clearly separates documents that were obtained by subpoena from those obtained by other means, and that enables identification of evidence the grand jury actually considered.