                        United States Court of Appeals


                     FOR THE DISTRICT OF COLUMBIA CIRCUIT


              Argued July 21, 1998       Decided August 3, 1998 


 


                       In re:  Sealed Case No. 98-3077


                              Consolidated with

                          98-3078, 98-3079, 98-3081


---------


                       On Petition for Writ of Mandamus


     Kenneth W. Starr, Independent Counsel, argued the cause 
for petitioner, with whom Donald T. Bucklin, Scott T. Kragie, 
and Andrew W. Cohen were on the petition and reply.

     David E. Kendall argued the cause for respondent William 
J. Clinton, with whom Nicole K. Seligman, Max Stier, Robert 
S. Bennett, Carl S. Rauh, Amy Sabrin, Katharine S. Sexton, 
W. Neil Eggleston, William J. Murphy, and William Alden 
McDaniel, Jr., were on the response.

     Before:  Wald, Silberman, and Henderson, Circuit Judges.

     Opinion for the Court filed Per Curiam.

     Per Curiam:  The Independent Counsel (IC) petitions for a 
writ of mandamus directing the district court to vacate its 
orders authorizing [ 



             ] * to subpoena documents from the IC, 
conduct limited depositions of the IC and his staff, and 
subpoena the IC and his staff for similarly limited testimony 
at a show cause hearing relating to alleged violations of the 
grand jury secrecy rule.  We conclude that we have power to 
determine the issues presented by the petition;  resolving 
those issues in a substantially different way than the district 
court did, we issue the writ.
                                      I.

[

      ]1 filed motions in the district court requesting that 
the court order Independent Counsel Kenneth W. Starr to 
show cause why he, and/or his staff, should not be held in 
contempt for violation of Federal Rule of Criminal Procedure 
6(e)(2), which prohibits attorneys for the government from 
disclosing confidential grand jury information.2  The movants 
alleged that the IC and his staff had divulged such informa-
tion to the press, and provided the court with several news 
reports about the investigation wherein a reporter describes 
the source of the information as, to quote one illustrative 
example, "a source close to Starr."  Appendix to Opposition 
to Emergency Motion to Stay the District Court's Orders, at 
Tab 1 (Thomas Galvin, Monica Keeping Mum--For Now 
Fends Off Query On Internal Affairs, Daily News, Jan. 23, 
1998, at 26).  The district court held that such news reports 
established a prima facie case of a violation of Rule 6(e)(2) 
because the "media reports disclosed information about 'mat-
ters occurring before the grand jury' and indicated that the 
sources of the information included attorneys and agents of 
__________
     *  Bold brackets signify sealed material. 
     1  [

 

                                       ]
     2  Rule 6(e) provides in relevant part:  "[A]n attorney for the 
government ... shall not disclose matters occurring before the 
grand jury, except as otherwise provided in these rules....  A 
knowing violation of Rule 6 may be punished as a contempt of 
court."  Fed. R. Crim. P. 6(e)(2).  The IC, as an "attorney for the 
government," is subject to the secrecy requirements of Rule 6(e)(2).  
In re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994). 

the Government."  Order to Show Cause, Misc. No. 98-55 
(June 19, 1998), at 2 (quoting Barry v. United States, 865 
F.2d 1317, 1321 (D.C. Cir. 1989)).

     The district court read our decision in Barry as holding 
that once a prima facie violation of Rule 6(e)(2) is established, 
the court is required to conduct an adversarial hearing at 
which the prosecutor must show cause why he should not be 
held in contempt.  Order to Show Cause at 9, (citing Barry, 
865 F.2d at 1321).  Accordingly, the district court issued the 
two procedural orders at issue in this petition.  The court 
first scheduled a show cause hearing.  Order to Show Cause 
at 10.  In the second order, it clarified the nature of the show 
cause hearing.  The IC was ordered to produce, on July 11, 
the documents requested by movants, with any Rule 6(e) 
material redacted.3  The court ruled that movants would be 
permitted to depose the IC and several of his staff, prior to 
the adversarial hearing, on three subject areas:  (1) the IC's 
policy regarding press contacts, (2) actual contacts with the 
press by the IC or his staff, and (3) specific representations 
made by the IC about the first two subject areas.  The court 
further ruled that movants could subpoena the IC and several 
of his staff for testimony at the show cause hearing, with the 
subject matter of the questioning to be limited in the same 
manner as during the depositions.  Mem. Order, Misc. No. 
98-55 (June 26, 1998), at 2.  Finally, the court set forth the 
procedure to be followed at the show cause hearing:  the 
hearing would begin with an ex parte presentation by the IC 
of any Rule 6(e) material the IC deems necessary to rebut the 
prima facie case;  after the IC's presentation, movants' coun-
sel would join the hearing, cross-examine the IC and his 
witnesses, and present their evidence.  See id. at 4.

     The IC filed a notice of appeal, followed by a motion for 
stay pending appeal.  The district court subsequently de-
clined to stay its orders, reasoning that the factors for 
granting a stay pending appeal were not met.  Order, Misc. 

__________
     3  Discovery of documents from the IC was initially scheduled to 
begin on June 30, 1998.  At the request of the IC, the district court 
stayed the discovery order until July 11. 



No. 98-55 (July 9, 1998).  Specifically, the court found that 
the IC's likelihood of prevailing on the merits of its appeal 
was low given the court's conclusion that the orders are not 
even appealable;  that the IC would not be irreparably 
harmed by the orders because the orders allowed him to 
redact any Rule 6(e) material and thus he would not be 
required to provide any confidential investigative material to 
movants;  that the harm to movants of granting a stay was 
substantial because without an immediate show cause hear-
ing, there would be no deterrence of future leaks in the 
interim before the appeal;  and that the public interest in 
stopping leaks and in preserving respect for the judiciary's 
orders sealing grand jury proceedings outweighed any delay 
that might be caused by the show cause hearing and its 
associated discovery process.

     On July 9, 1998, the same day the district court denied the 
IC's motion for a stay pending appeal, the IC petitioned us 
for mandamus relief.4  Because discovery was set to begin on 

__________
     4  Petitioner styles his petition a "Petition for Writ of Prohibi-
tion" rather than a "Petition for Writ of Mandamus."  Because "the 
grounds for issuing the writs are virtually identical," In re Halkin, 
598 F.2d 176, 179-80 n.1 (D.C. Cir. 1979), and because "mandamus" 
is the more familiar term, we prefer to use it.

     Petitioner simultaneously filed an emergency motion to stay the 
district court's orders pending appeal.  Petitioner argues in that 
motion that we have jurisdiction to review the district court's 
orders--which he concedes are interlocutory--under the collateral 
order doctrine.  Emergency Motion of the United States of Amer-
ica at 7 (citing Cohen v. Beneficial Indus.  Loan Corp., 337 U.S. 
541, 546-47 (1949)).  We have recently described the criteria for the 
collateral order doctrine and the writ of mandamus as "similar."  In 
re Minister Papandreou, 139 F.3d 247, 250 (D.C. Cir. 1998);  see 
also In re Kessler, 100 F.3d 1015, 1016 (D.C. Cir. 1997) ("In 
practical terms, the difference between the two, at least in this 
context [of review of a discovery order], is mainly semantic.").  
Ease of analysis, as will become clear in Part II.B. infra, dictates 
that we discuss petitioner's arguments using the framework for 
mandamus relief.  Cf. Papandreou, 139 F.3d at 250 (discussing the 
criteria for both mandamus relief and the collateral order doctrine, 


July 11, we ordered an administrative stay of the district 
court's procedural orders so that we would have sufficient 
opportunity to consider the merits of the petition for writ of 
mandamus.  Order, No. 98-3077 (July 10, 1998).  We now 
conclude that we have power to determine the issues present-
ed in the petition;  based on our analysis of those issues, we 
issue the writ.

                                     II.


     The writ of mandamus has been described as "an extraordi-
nary remedy, to be reserved for extraordinary situations."  
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 
271, 289 (1988) (citing Kerr v. United States Dist. Court, 426 
U.S. 394, 402 (1976)).5  As we recently observed, liberal use of 
the writ would "undercut the general rule that courts of 
appeals have jurisdiction only over 'final decisions of the 
district courts,' 28 U.S.C. s 1291, and would lead to piecemeal 
appellate litigation."  In re Minister Papandreou, 139 F.3d 
247, 249 (D.C. Cir. 1998).  Not surprisingly, the extraordinary 
nature of mandamus relief is reflected in the strict criteria for 
its issuance:  Mandamus will issue only if the petitioner bears 
his "burden of showing that the petitioner's right to issuance 
of the writ is clear and indisputable," Gulfstream, 485 U.S. at 
289 (citation and internal quotation marks omitted), and that 
"no other adequate means to attain the relief" exist, Allied 
Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980).  See 
Papandreou, 139 F.3d at 250.

                                      A.

     We take the latter requirement first.  Respondent, refer-
ring us to our opinion in In re Kessler, 100 F.3d 1015 (1997), 

__________
     and then embarking on an analysis framed solely in terms of 
mandamus without articulating a reason for preferring one frame-
work over the other). 

     5  Statutory authority for issuing the writ of mandamus is 
provided by 28 U.S.C. s 1651 (1994):  "The Supreme Court and all 
courts established by Act of Congress may issue all writs necessary 
or appropriate in aid of their respective jurisdictions and agreeable 
to the usages and principles of law." 


urges that petitioner has an adequate alternative means to 
challenge the district court's discovery orders.  As respon-
dent correctly observes, we stated in Kessler that "in the 
ordinary case, a litigant dissatisfied with a district court's 
discovery order must disobey the order, be held in contempt 
of court, and then appeal that [final] order on the ground that 
the discovery order was an abuse of discretion."  Kessler, 100 
F.3d at 1015;  see also Papandreou, 139 F.3d at 250 ("If held 
in contempt, a litigant then has a final order from which he 
may appeal, asserting any legal flaws in the underlying 
discovery order.");  In re:  Sealed Case, 141 F.3d 337, 339 
(D.C. Cir. 1998).  Respondent argues that the disobedience 
and contempt path to appeal is an adequate means to relief, 
and that petitioner must therefore pursue it rather than 
seeking the extraordinary writ of mandamus.

     Unfortunately, in Kessler, Papandreou, and In re:  Sealed 
Case, the parties did not bring to our attention a longstanding 
distinction between civil and criminal contempt orders issued 
against a party to a litigation.  While a criminal contempt 
order issued against a party is considered a final order and 
thus appealable forthwith under 28 U.S.C. s 1291, Bray v. 
United States, 423 U.S. 73, 76 (1975);  Matter of Christensen 
Eng'g Co., 194 U.S. 458, 461 (1904);  SEC v. Simpson, 885 
F.2d 390, 395 n.7 (7th Cir. 1989), a civil contempt order issued 
against a party is typically deemed interlocutory and thus not 
appealable under 28 U.S.C. s 1291, Fox v. Capital Co., 299 
U.S. 105, 107 (1936);  Doyle v. London Guar. & Accident Co., 
204 U.S. 599 (1907);  International Ass'n of Machinists & 
Aerospace Workers v. Eastern Airlines, Inc., 849 F.2d 1481, 
1484 (D.C. Cir. 1988);  Duell v. Duell, 178 F.2d 683, 687 (D.C. 
Cir. 1949) (describing the rule as "thoroughly settled");  In re 
Joint E. & S. Dists. Asbestos Litig., 22 F.3d 755, 765 (7th Cir. 
1994).  Indeed, we reaffirmed the rule that a civil contempt 
order issued against a party is not appealable as recently as 
SEC v. Finnegan, No. 97-5272, 1998 WL 65530, at *1 (D.C. 
Cir. Jan. 13, 1998).

     The confusion in our caselaw may be a product of several 
factors.  For one, the authoritative Supreme Court cases on 
these issues are rather old and are not frequently cited.  For 



another, the distinction between civil and criminal contempt 
orders for purposes of appealability by a party has been 
criticized, see Powers v. Chicago Transit Auth., 846 F.2d 
1139, 1141 (7th Cir. 1988) (noting that although "many mod-
ern commentators believe that the rule postponing review [of 
a civil contempt order issued against a party] is unduly harsh, 
... the rule is too well established to be changed by us.");  
15B Charles Alan Wright, Arthur R. Miller, & Edward H. 
Cooper, Federal Practice and Procedure s 3917, at 399-404 
(2d ed. 1992) (reviewing the policy debate on the merits of the 
distinction), especially in light of the different regime for non-
parties that allows immediate appeals from orders of either 
civil or criminal contempt, Petroleos Mexicanos v. Crawford 
Enters., Inc., 826 F.2d 392, 398 (5th Cir. 1989);  United States 
v. Columbia Broad. Sys., 666 F.2d 364, 367 n.2 (9th Cir. 1982) 
(citing cases).  Most likely, our questionable assumption in 
Kessler, Papandreou, and In re:  Sealed Case can be traced to 
an imprecise footnote from which we quoted:  "As a general 
rule, a district court's order enforcing a discovery request is 
not a 'final order' subject to appellate review.  A party that 
seeks to present an objection to a discovery order immediate-
ly to a court of appeals must refuse compliance, be held in 
contempt, and then appeal the contempt order."  Church of 
Scientology of Calif. v. United States, 506 U.S. 9, 18 n.11 
(1992) (citing United States v. Ryan, 402 U.S. 530 (1971)).  
On its face, this passage suggests that any contempt order 
issued against a party, whether civil or criminal, is an appeal-
able final order.  But it is rather implausible that the Su-
preme Court, in dicta--not to mention in a footnote--meant 
to overrule sub silentio the holdings in Fox and Doyle.  
Moreover, the case relied on by the Supreme Court, United 
States v. Ryan, 402 U.S. 530 (1971), is inapposite.  Ryan 
involved a recipient of a subpoena duces tecum issued by a 
grand jury, who sought to appeal from the district court's 
denial of a motion to quash the subpoena.  The Court held 
that such an order is not appealable, and that appeal could 
only be taken from a contempt order that would follow from a 
refusal to produce the documents requested in the subpoena.  
Id. at 552.  It did not distinguish civil from criminal con-



tempt, for there was no need to do so.  The case involved a 
recipient of a grand jury subpoena, not a party-litigant, and 
so did not implicate the Doyle rule.

     In any event, we need not definitively resolve the apparent 
conflict in our cases as to whether a civil contempt order 
issued in the context of an ongoing civil litigation is appeal-
able as a final order.  It is enough for us to observe that 
there is substantial doubt whether, if squarely presented with 
the issue, we would deem such a civil contempt order appeal-
able.  Given a district court's discretion whether to hold a 
party who refuses to comply with a discovery order in civil or 
criminal contempt, "a party who wishes to pursue the disobe-
dience and contempt path to appeal cannot know whether the 
resulting contempt order will be appealable."  Wright, Mil-
ler & Cooper s 3914.23, at 146.  The implication, of course, 
is that the disobedience and contempt route to appeal cannot 
be labeled an adequate means of relief for a party-litigant.  
So too here.  The discovery order addressed to petitioner 
arises out of a civil proceeding ancillary to a grand jury 
investigation, Barry, 865 F.2d at 1321-22, and petitioner is 
properly characterized as a party in that civil proceeding.  
Petitioner cannot know, ex ante, whether refusal to comply 
with the discovery order will result in a civil contempt order 
or a criminal contempt order.  The uncertainty of this means 
to relief bespeaks its inadequacy in this case.

     Our conclusion that the disobedience and contempt path to 
appeal is inadequate does not answer whether some other 
means to relief--besides the writ of mandamus--is adequate 
for petitioner.  Presumably, a civil contempt order, if issued 
against petitioner at the conclusion of the ancillary civil 
proceeding, would constitute a final order, appealable under 
28 U.S.C. s 1291;  it would not be like the civil contempt 
orders we discussed above that arise in the course of an 
ongoing litigation.  The Rule 6(e)(2) ancillary civil proceeding 
we established in Barry is a peculiar creature in this regard;  
the raison d'etre of the proceeding is a determination by the 
district court whether or not to hold the prosecutor in civil 
contempt.  Respondent argues, therefore, that petitioner 
must wait until the conclusion of this ancillary civil proceed-



ing and, if found in civil contempt at that point, seek to appeal 
the discovery orders.

     The inadequacy of this alternative is apparent upon consid-
eration of the nature of the harm that petitioner alleges will 
occur if we allow the procedural orders to stand.  Petitioner 
contends that if he discloses [               
                  ] the grand jury's investigation 
may be irreparably harmed.  In this respect, petitioner is 
asserting something akin to a privilege insofar as "once [the] 
putatively protected material is disclosed, the very right 
sought to be protected has been destroyed."  In re Ford 
Motor Co., 110 F.3d 954, 963 (3d Cir. 1997) (citation omitted);  
see also Papandreou, 139 F.3d at 251 ("Disclosure followed 
by appeal after final judgment is obviously not adequate in 
such cases--the cat is out of the bag.").  Although we have 
not had occasion to address the issue of irreparable harm to 
law enforcement from disclosure of arguably "privileged" 
material in the context of a mandamus petition, our sister 
circuits have concluded that such harm renders appeal after 
final judgment an inadequate means to relief from the discov-
ery order.  See In re Department of Justice, 999 F.2d 1302, 
1305 (8th Cir. 1993) (district court had ordered the FBI to 
turn over documents compiled for law enforcement purposes 
and assertedly privileged under FOIA, which, if released, 
would have irreparably harmed ongoing law enforcement 
proceedings);  In re Attorney Gen. of the United States, 596 
F.2d 58, 60 (2d Cir. 1979) (district court had ordered the 
Attorney General to release files disclosing the names of 
confidential government informants, arguably protected un-
der the informant's privilege and which, if released, might 
have had immediate adverse effects on law enforcement and 
intelligence-gathering).

     Petitioner submits, moreover, that the district court's pro-
cedural orders, because they involve discovery and an adver-
sarial hearing, will cause significant delay to petitioner's 
grand jury investigation as compared to the proposed alter-
nate procedure of an ex parte presentation to the district 
court or a special master.  In this respect, too, the type of 
harm petitioner alleges is irreparable:  the burden of discov-
ery and of the adversarial hearing is immediate and could not 



be recompensed were petitioner successful in appealing the 
procedural orders as part of an appeal from a final judgment 
of civil contempt.  Petitioner, in effect, is claiming an immuni-
ty from discovery and adversarial process while the grand 
jury investigation is in progress.  Thus, this case is similar to 
Papandreou, 139 F.3d at 250, in which we observed, in the 
course of issuing a writ of mandamus to vacate discovery 
orders implicating sovereign immunity, that the infliction of 
the "burdens" of discovery might cause irreparable harm to 
one who asserts an immunity from those very burdens.

     Finally, respondent contends, relying on our decision in In 
re United States, 872 F.2d 472 (D.C. Cir. 1989), that the IC 
has the alternative remedy of seeking relief from the district 
court from discovery that the IC is able to demonstrate will 
disclose grand jury or investigative secrets.  In In re United 
States, the district court had expressed a willingness to 
determine in camera, item-by-item, whether the state secrets 
privilege protected from discovery certain materials request-
ed by a plaintiff suing the government under the Federal 
Tort Claims Act, and to allow the government to redact 
names from certain documents.  We denied the government's 
petition for mandamus, in part because "[t]he district court 
did not reject the Government's assertion of privilege;  on the 
contrary, ... the court demonstrated a perceptive under-
standing of and wholesome respect for the state secrets 
privilege."  Id. at 478.  Respondent argues that the district 
court here has demonstrated a similar willingness to accom-
modate petitioner's concerns about the confidentiality of the 
grand jury investigation:  the district court has ordered that 
"discovery [is] restricted to matters not covered by Rule 
6(e)," Mem. Order (June 26, 1998), at 2, and that "[i]f it 
becomes necessary for the OIC to present material covered 
by Rule 6(e) during the [show cause] hearing, the OIC may 
submit it to the Court at a bench conference or by other 
appropriate means," id. at 4.

     We think, however, that unlike the district court's proce-
dural protections in In re United States, the district court's 
safeguards here do not go far enough to assure us that the 
district court will protect the confidentiality interests of the 



IC. For example, even if the IC redacted the content of 
communications with members of the press to omit grand 
jury material, the residual information regarding the identity 
of the contact and the time such contact was made would give 
rise to inferences about the substance of "matters occurring 
before the grand jury."  Furthermore, the IC is not troubled 
solely by the possibility that Rule 6(e) material might be 
disclosed, but also by the prospect of disclosing even the 
identities of members of the press with whom the IC and his 
staff have spoken[                  ].  The district 
court's order does not accommodate this concern.  Rather, it 
explicitly designates "actual contacts with the press by OIC 
employees," Mem. Order (June 26, 1998), at 2, as one of the 
subject areas on which respondent will be permitted to ques-
tion petitioner and his staff by deposition and at the show 
cause hearing.  And the district court's order does not as-
suage petitioner's fear that discovery and an adversarial 
hearing will divert petitioner's focus--significantly more so 
than would an ex parte presentation--from directing the 
grand jury investigation at a crucial juncture.

                                      B.


     That petitioner has no adequate means of relief besides 
mandamus does not conclude our inquiry into whether we 
have power to address the merits presented by the petition.  
We must further determine whether petitioner has carried his 
"burden of showing that [his] right to issuance of the writ is 
clear and indisputable."  Gulfstream, 485 U.S. at 289 (cita-
tions omitted);  see also Papandreou, 139 F.3d at 250.  On its 
face, this criterion is somewhat circular.  The right to issu-
ance of the writ must be "clear and indisputable," but criteria 
for determining whether a petitioner has a right to issuance 
of the writ at all--let alone one that is clear and indisputa-
ble--are conspicuously absent from this formulation.

     The Supreme Court in Schlagenhauf v. Holder, 379 U.S. 
104 (1964), described one category of cases for which manda-
mus is appropriate, a category into which we think the case at 
bar fits exactly.  In Schlagenhauf, the district court, pursuant 
to Federal Rule of Civil Procedure 35, ordered a defendant in 



litigation arising out of a bus accident to submit to mental and 
physical examinations by several doctors.  The defendant 
petitioned the Seventh Circuit to issue a writ of mandamus 
vacating the district court's order, claiming that Rule 35 
authorized mental and physical examinations only of plain-
tiffs, not defendants.  Whether Rule 35 could be applied to a 
defendant was a "basic, undecided question";  only one federal 
case had touched on the issue, and only one state case had 
ever ordered the mental or physical examination of a defen-
dant.  Id. at 110.  The Seventh Circuit thought it had power 
to review the question presented by the petition.  The Su-
preme Court agreed, holding that "the petition was properly 
before [the Seventh Circuit] on a substantial allegation of 
usurpation of power in ordering any examination of a defen-
dant, an issue of first impression that called for the construc-
tion and application of Rule 35 in a new context."  Id. at 111 
(emphasis added).  We have described Schlagenhauf as au-
thorizing consideration of a petition for writ of mandamus 
"when the appellate court is convinced that resolution of an 
important, undecided issue will forestall future error in trial 
courts, eliminate uncertainty and add importantly to the 
efficient administration of justice."  Colonial Times, Inc. v. 
Gasch, 509 F.2d 517, 524 (D.C. Cir. 1975).6

     The appropriate procedural framework for the Rule 6(e)(2) 
ancillary civil proceeding we recognized in Barry is as "im-
portant" and "undecided" today as was the proper interpreta-
tion of Rule 35 at the time Schlagenhauf arose in 1964.  We 
provided scant guidance in Barry on the proper conduct of 
the Rule 6(e)(2) proceeding.  And although the Eleventh 
Circuit has set forth in significant detail a procedural frame-
work for a Rule 6(e)(2) proceeding akin to the one we 
recognized in Barry, see United States v. Eisenberg, 711 F.2d 

__________
     6  See also In re Department of Justice, 999 F.2d at 1305 
(holding that power to determine the issues presented in a writ of 
mandamus is conferred when a "case presents a unique situation");  
In re Attorney Gen., 596 F.2d at 64 (issuing the writ of mandamus 
in part because of "the underlying issues of first impression" 
presented in the petition). 



959, 964 (11th Cir. 1983), it is the only case we could find that 
has done so.  The importance of the grand jury to the 
enforcement of the federal criminal law is well documented, 
and the impact on an ongoing grand jury investigation of a 
burdensome discovery process and adversarial hearing, 
through which [   ] learn of confidential investigative 
material--even if not Rule 6(e) material--could be profound.  
Accordingly, we have power "to determine ... the issues 
presented by the petition for mandamus," Schlagenhauf, 379 
U.S. at 111, and we turn to the merits to evaluate whether 
petitioner has a clear right to the issuance of the writ.

                                     III.


     A. The Nature of the Proceeding

     In this circuit, the scope and nature of proceedings to 
enforce Rule 6(e)(2) are governed by our opinion in Barry.  
In Barry, we outlined the basic framework governing actions 
brought under Rule 6(e)(2):

     It is generally understood that a prima facie case of a 
     violation of Rule 6(e)(2) is made when the media reports 
     disclosed information about "matters occurring before 
     the grand jury" and indicated that the sources of the 
     information included attorneys and agents of the Govern-
     ment.  Once a prima facie case is shown, the district 
     court must conduct a "show cause" hearing to determine 
     whether the Government was responsible for the pre-
     indictment publicity and whether any information dis-
     closed by the Government concerned matters occurring 
     before the grand jury.  At this hearing, the burden shifts 
     to the Government to come forward with evidence to 
     negate the prima facie case.  If after such a hearing the 
     trial court determines that remedial action is warranted, 
     it may order the Government to take steps to stop any 
     publicity emanating from its employees.

Barry, 865 F.2d at 1321 (citations, footnote, and internal 
quotation omitted).  Barry thus envisions that a two-step 
analysis will be employed to determine whether a violation of 



Rule 6(e)(2) has occurred.  First, the district court must 
determine whether the plaintiff has established a prima facie 
case.  This determination will typically be based solely on an 
assessment of news articles submitted by the plaintiff;  in-
deed, we acknowledged in Barry that a Rule 6(e)(2) plaintiff 
could not be "expected to do more at this juncture of the 
litigation" given that he or she would "almost never have 
access to anything beyond the words of the [news] report."  
Id. at 1326 (internal quotation omitted) (alteration in the 
original).7  Second, if the court determines that a prima facie 
case has been established, the burden shifts to the govern-
ment to "attempt to explain its actions" in a show cause 
hearing.  Id. at 1325.  If the government fails to rebut the 
prima facie case, a violation of Rule 6(e)(2) is deemed to have 
occurred.  Cf., e.g., Duplan Corp. v. Deering Milliken, Inc., 
540 F.2d 1215, 1220 (4th Cir. 1976) (noting that a prima facie 
showing "subject[s] the opposing party to the risk of non-
persuasion if the evidence as to the disputed fact is left 
unrebutted").  The court then determines what remedy will 
be sufficient to deter further leaks.  The remedy may be the 
imposition of civil contempt sanctions or equitable relief or 
both, "depending upon the nature of the violation and what 
the trial court deems necessary to prevent further unlawful 
disclosures of matters before the grand jury."  Barry, 865 
F.2d at 1323.  Significantly, in establishing this two-step 
framework, Barry said nothing about the burden shifting 
back to the plaintiff after the government's presentation or 
about the plaintiff retaining the burden of persuasion after a 

__________
     7  To be sure, the plaintiff's burden in a Rule 6(e)(2) proceeding 
is relatively light.  The articles submitted need only be susceptible 
to an interpretation that the information reported was furnished by 
an attorney or agent of the government;  in fact, "[i]t is not 
necessary for [an] article to expressly implicate [the government] as 
the source of the disclosures if the nature of the information 
disclosed furnishes the connection."  Barry, 865 F.2d at 1325 
(internal quotation omitted).  Of course, should a Rule 6(e)(2) 
plaintiff be in possession of evidence of a violation other than the 
articles themselves, that evidence should be submitted as part of 
the prima facie case. 



prima facie case has been established.  See id. (noting that 
purpose of show cause hearing is to permit the government to 
respond;  "if the Government fails in its defense," the trial 
court should consider appropriate relief);  cf. Combs v. Ryan's 
Coal Co., Inc., 785 F.2d 970, 984 (11th Cir. 1986) ("The party 
seeking the contempt citation retains the ultimate burden of 
proof....").  Under Barry, then, the plaintiff's burden is 
minimal;  the responsibility of coming forward with evidence 
to rebut the accusation of unauthorized disclosure lies square-
ly with the government, the party in "the best position to 
know whether [it is] responsible for a violation of the Rule."  
Barry, 865 F.2d at 1326 (internal quotation omitted).  If, of 
course, the government convinces the trial judge that no 
violation of Rule 6(e)(2) has occurred, that is the end of the 
proceeding.

     Here, the IC does not contest the district court's finding 
that the movants have satisfied their burden to establish a 
prima facie case through the submission of various news 
articles indicating that information relating to grand jury 
proceedings or witnesses was obtained from sources associat-
ed with the IC or that a show cause hearing is now required 
under Barry.  The IC does, however, object strenuously to 
the discovery procedures set forth by the district court in its 
order governing the conduct of the show cause hearing--in 
particular, the requirement that the IC be required to pro-
duce documents sought by the movants, submit to depositions 
of employees listed by the movants, and respond to subpoenas 
for live testimony at the hearing.  (The IC has stated his 
willingness, however, to submit any information or testimony 
in any form required to the district court in an in camera 
proceeding.)  The only issue before us, it is worth emphasiz-
ing, is not whether a show cause hearing will go forward in 
the district court as to whether the IC or members of his 
staff have made unauthorized disclosures to the press but 
rather the manner in which the hearing will be conducted:  as 
a full-scale adversarial evidentiary proceeding or as an in 
camera inquiry by the trial judge and/or any special master 
or counsel it might appoint to assist the court in the task.  
Our review of the district court's orders is a fairly deferential 
one.  In general, district courts are accorded a wide degree of 



latitude in the oversight of discovery-related proceedings, and 
we review orders pertaining to discovery only for abuse of 
discretion.  See, e.g., Laborers' Int'l Union of N. Am. v. 
Department of Justice, 772 F.2d 919, 921 (D.C. Cir. 1984) 
("Control of discovery is a matter entrusted to the sound 
discretion of the trial courts.").  We are acutely aware that in 
this matter in particular the job of supervising the grand jury 
has been an arduous one requiring many interventions by the 
trial court, which has met its duties with admirable dedication 
and expedition.  Nonetheless, the appropriate procedure for a 
Rule 6(e)(2) hearing is a matter of grave importance, not only 
for this proceeding but for future ones, involving the need to 
protect the secrecy of the grand jury itself as well as the need 
to efficaciously remedy violations of that secrecy prohibited 
by Rule 6(e)(2).  Accordingly, in this opinion we will lay down 
what we conclude is the appropriate way to conduct such a 
show cause proceeding.

     Barry itself provided little in the way of a roadmap to 
assist the district court in proceeding once a prima facie case 
is made, that is, it did not address the specifics of how the 
show cause hearing should be conducted.  It did not, for 
example, indicate whether the hearing should be open to the 
public or sealed, whether or to what extent discovery should 
be permitted and by whom, whether the hearing should 
include live testimony or rely solely on documentary evidence, 
or how to minimize any risk that the hearing will result in the 
disclosure of Rule 6(e) material to unauthorized recipients.  
In order to resolve these critical questions, we must balance 
two somewhat competing concerns, both of which lie just 
beneath Barry's surface.  We begin with the recognition that 
Barry held that a proceeding to enforce the secrecy mandate 
of Rule 6(e)(2) is civil in nature and may be initiated by a 
private plaintiff.8  The movants in this proceeding have, 
however, seized on this "civil" characterization to argue that, 
pursuant to the Federal Rules of Civil Procedure, which 

__________
     8  In this respect, we are aligned with the Fifth and Eleventh 
Circuits, see In re Grand Jury Investigation (Lance), 610 F.2d 202 
(5th Cir. 1980);  Eisenberg, 711 F.2d 959, and have taken a different 
view from that later reached by other courts, see Finn v. Schiller, 



generally govern civil actions for civil contempt, see 3 
Charles Alan Wright, Federal Practice and Procedure 
s 705 (1982),9 they are entitled to broad discovery against the 
IC, including the opportunity to require production of and to 
review documents from the IC and to subpoena and question 
the IC and members of his staff about the alleged unautho-
rized disclosures involved in the news articles that formed the 
basis of the prima facie case.10  See, e.g., Degen v. United 
States, 517 U.S. 820, 825-26 (1996) (noting that in a civil case, 
"a party is entitled as a general matter to discovery of any 
information sought if it appears 'reasonably calculated to lead 
to the discovery of admissible evidence' ") (quoting Fed. R. 
Civ. P. 26(b)(1)).11  In most proceedings characterized as 

__________
72 F.3d 1182 (4th Cir. 1996) (Rule 6(e)(2) provides for civil or 
criminal contempt remedy but may not be initiated by private 
plaintiff);  In re Grand Jury Investigation (90-3-2), 748 F. Supp. 
1188 (E.D. Mich. 1990) (Rule 6(e)(2) provides only for criminal 
contempt remedy). 

     9  Because the Federal Rules of Civil Procedure generally gov-
ern civil contempt proceedings, it is arguable that a Rule 6(e)(2) 
proceeding must be initiated by complaint and not by motion, see 
Fed. R. Civ. P. 3 ("A civil action is commenced by filing a complaint 
with the court"), and must first request injunctive relief before 
seeking contempt sanctions, see Blalock v. United States, 844 F.2d 
1546, 1550 (11th Cir. 1988) ("[T]here is no such thing as an 
independent cause of action for civil contempt;  civil contempt is a 
device used to coerce compliance with an in personam order of the 
court which has been entered in a pending case.");  but see Barry, 
865 F.2d at 1324 n.7 ("[A] civil contempt sanction may include 
appropriate equitable relief.").  Because the IC has not raised 
either of these concerns below or before this court, we will not 
consider them further here. 

     10  Indeed, the movants' motion to the district court requesting 
discovery asserted that it was unnecessary for them to secure the 
court's permission to commence civil discovery.  See Memorandum 
in Support of Motion for Production of Documents and Testimony 
(June 19, 1998), at 2. 

     11  Of course, a district court retains the discretion "to control 
any discovery process which may be instituted so as to balance [the 


"civil," this would certainly be the case:  An overriding inter-
est in the revelation of truth creates a need for free and open 
access to evidence;  indeed, we have called it a "hallmark of 
our adversary system that we safeguard party access to the 
evidence tendered in support of a requested court judgment" 
and noted that the "firmly held main rule" is that "a court 
may not dispose of the merits of a case on the basis of ex 
parte, in camera submissions."  Abourezk v. Reagan, 785 
F.2d 1043, 1060-61 (D.C. Cir. 1986), aff'd by an equally 
divided court, 484 U.S. 1 (1987) (citations omitted).  Excep-
tions to this rule are few and narrow.  Id.

     We ultimately conclude, however, that the unique nature of 
a Rule 6(e)(2) show cause hearing requires such an exception.  
This is not a typical civil proceeding between two disputants;  
rather, it resembles more clearly an ancillary proceeding to a 
criminal grand jury inquest.  To the extent that sanctions are 
requested to deter future leaks (and the remedy is thus 
prospective and prophylactic, rather than retrospective and 
punitive), a Rule 6(e)(2) action is indeed civil in nature.  See 
Barry, 865 F.2d at 1324;  see also Gompers v. Buck's Stove & 
Range Co., 221 U.S. 418, 441 (1911) (civil contempt sanctions 
are "remedial, and for the benefit of the complainant," while 
criminal contempt sanctions are "punitive, to vindicate the 
authority of the court").  But the way in which the proceed-
ing is conducted must acknowledge the essential nature of the 
proceeding as one designed to guard the sanctity of the grand 
jury process itself.  Thus, Barry describes a Rule 6(e)(2) 
plaintiff as having only "a very limited right to seek injunctive 
relief or civil contempt of court through the district court 
supervising the grand jury."   McQueen v. United States, 
1998 WL 217538, at *7 (S.D. Tex. Mar. 30, 1998) (citing 
Barry).  The plaintiff in a Rule 6(e)(2) suit would not, of 
course, be entitled to seek monetary damages or attorneys' 
fees and costs from an errant prosecutor, even though such 
damages are commonly awarded in civil contempt actions.  

__________
plaintiff's] need for access to proof ... against the extraordinary 
needs of [the government] for confidentiality."  Webster v. Doe, 486 
U.S. 592, 604 (1988). 



See, e.g., Clark v. Library of Congress, 750 F.2d 89, 103 (D.C. 
Cir. 1984) (holding that sovereign immunity "bar[s] suits for 
money damages against officials in their official capacity 
absent a specific waiver by the government") (emphasis omit-
ted);  see also Barry, 865 F.2d at 1321-22 (noting only that 
Rule 6(e)(2) permits "equitable relief, either in addition to, in 
conjunction with or in lieu of contempt sanctions");  McQueen, 
1998 WL 217538, at *8 (monetary damages unavailable under 
Rule 6(e)(2));  cf. United States v. Waksberg, 112 F.3d 1225, 
1226 (D.C. Cir. 1997) ("One of the permissible purposes of 
civil contempt sanctions is to compensate the complainant for 
losses sustained, through a fine payable to the complainant.") 
(internal quotation omitted);  Food Lion, Inc. v. United Food 
& Commercial Workers Int'l Union, 103 F.3d 1007, 1017 n.14 
(D.C. Cir. 1997) (same as to fees and costs).  In truth, like a 
habeas corpus proceeding, a Rule 6(e)(2) civil action is some-
thing of a hybrid:  although initiated by a private plaintiff, it 
is designed to be a supplementary means of enforcing the 
rules of a criminal proceeding.  Cf. Santana v. United States, 
98 F.3d 752, 754 (3d Cir. 1996) (noting that the nature of 
habeas corpus cases is "not adequately captured by the 
phrase 'civil action';  they are independent civil dispositions of 
completed criminal proceedings").  A Rule 6(e)(2) proceeding, 
dealing as it does with the substance of an ongoing criminal 
grand jury investigation, must be fully cognizant of the 
interests underlying that concurrent criminal proceeding.

     The Supreme Court "consistently ha[s] recognized that the 
proper functioning of our grand jury system depends upon 
the secrecy of grand jury proceedings," Douglas Oil Co. of 
Calif. v. Petrol Stops N.W., 441 U.S. 211, 218 (1979), "a long-
established policy ... older than our Nation itself," Pitts-
burgh Plate Glass Co. v. United States, 360 U.S. 395, 399 
(1959) (internal quotation omitted).  Rule 6(e)(2), by reinforc-
ing this need for secrecy, protects several interests of the 
criminal justice system:

     First, if preindictment proceedings were made public, 
     many prospective witnesses would be hesitant to come 
     forward voluntarily, knowing that those against whom 
     they testify would be aware of that testimony.  More-


     over, witnesses who appeared before the grand jury 
     would be less likely to testify fully and frankly, as they 
     would be open to retribution as well as to inducements.  
     There also would be the risk that those about to be 
     indicted would flee, or would try to influence individual 
     grand jurors to vote against indictment.  Finally, by 
     preserving the secrecy of the proceedings, we assure that 
     persons who are accused but exonerated by the grand 
     jury will not be held up to public ridicule.

Douglas Oil, 441 U.S. at 219.  Thus, there are obvious risks 
of disclosure of grand jury material posed by translating 
normal discovery techniques or routine cross-examination of 
witnesses by all participating parties into Rule 6(e)(2) pro-
ceedings.  Because a violation of Rule 6(e)(2) requires that 
the disclosure concern "matters occurring before the grand 
jury," 12 see Barry, 865 F.2d at 1321;  Fed. R. Crim. P. 6(e)(2), 
the IC may defend against an allegation of an unauthorized 
disclosure in the press by asserting that the information 
reported is, in fact, not a matter before the grand jury.  In 
order to do so, however, he may well need to explain what 
material was before the grand jury.13  Even the fact that the 

__________
     12  Although we have recently noted in a case involving the 
rights of the media to gain access to district court hearings and 
pleadings related to the grand jury's investigation that the phrase 
"matters occurring before the grand jury" encompasses "not only 
what has occurred and what is occurring, but also what is likely to 
occur," including "the identities of witnesses or jurors, the sub-
stance of testimony as well as actual transcripts, the strategy or 
direction of the investigation, the deliberations or questions or 
jurors, and the like," In re Motions of Dow Jones & Co., Inc., 142 
F.3d 496, 500 (D.C. Cir. 1998), petition for cert. filed, 66 U.S.L.W. 
3790 (U.S. June 3, 1998) (No. 97-1959) (internal quotation omitted), 
we note here the problematic nature of applying so broad a 
definition, especially as it relates to the "strategy or direction of the 
investigation," to the inquiry as to whether a government attorney 
has made unauthorized disclosures.

     13  We recognize that the district court's orders restricted dis-
covery to "matters not covered by Rule 6(e)," but given that the 
disclosure of Rule 6(e) material is at the heart of this case, we find 



"leaked" material was not relevant to the investigation could 
itself be quite revealing, and certainly admissions that grand 
jury material was disclosed would be useful to witnesses who 
might be recalled.  The possibility that document production, 
depositions, and cross-examination of government prosecutors 
would result in a disclosure of Rule 6(e) material clearly 
increases the risk of "[a greater] number of persons to whom 
the information is available (thereby increasing the risk of 
inadvertent or illegal release to others), [and thus] renders 
considerably more concrete the threat to the willingness of 
witnesses to come forward and testify fully and candidly."  
United States v. Sells Eng'g, Inc., 463 U.S. 418, 432 (1983) 
(rejecting automatic disclosure of grand jury materials to 
government civil attorneys).  Moreover, if discovery and ex-
amination of government witnesses through depositions and 
in court were routinely available in Rule 6(e)(2) suits, targets 
and witnesses would surely be encouraged to bring such 
proceedings in the hope of obtaining information as to the 
course of the grand jury's investigation whenever the rela-
tively low threshold of a prima facie case attributing the 
source of a "leak" to the prosecutor was met.  Cf. id. at 432 
("If prosecutors in a given case knew that their colleagues 
would be free to use the materials generated by the grand 
jury for a civil case, they might be tempted to ... start or 
continue a grand jury inquiry where no criminal prosecution 
seemed likely.").  The advantage of cross-examining govern-
ment agents involved in an ongoing investigation about 
whether a "leak" of grand jury information has occurred 
cannot be overstated, particularly in cases of large-scale 
public interest.  At the very least, if discovery or cross-
examination in a Rule 6(e)(2) proceeding were allowed to 
proceed along its usual course, it would almost certainly 
result in the release of the names of the government agents 
involved in the investigation as well as the names of members 
of the press with whom they have been in contact 
[                               ].  Short of a 
blanket denial of any press contacts at all, it would seem to us 

__________
it impossible to imagine how any meaningful discovery regarding 
leaks could take place that would not involve the disclosure of some 
Rule 6(e) material.



to be virtually impossible for IC personnel to answer mov-
ants' questions about whom they talked to, where, and about 
what without disclosing details of the investigation that tread 
perilously near to or in fact step over the line into areas of 
grand jury secrecy.  Even if the specifics of information 
discussed with members of the press were redacted to omit 
grand jury material (and it is hard to see what use the 
questioning would be if the answers were so limited), the fact 
that the redaction was made at all would give rise to infer-
ences about the substance of grand jury material when put 
together with the context of the answer and the identity of 
the media representative who authored it.  Moreover, even if 
certain information discussed with members of the press 
regarding the course of the investigation, such as investiga-
tive leads ultimately not pursued, was considered not to be 
"matters occurring before the grand jury" and thus would not 
be subject to redaction, its revelation would still provide 
useful clues as to the direction of the prosecutors' efforts.  In 
sum, we cannot envision how a useful inquiry could be 
conducted about what the IC or members of his staff told the 
press about certain matters relevant to the grand jury's 
investigation without disclosing the focus of the investigation 
(or, minimally, the areas or individuals not being focused 
on).14  We must conclude, therefore, that the drafters of Rule 
6(e)(2) intended that proceedings to ferret out violations of 
the grand jury secrecy rule should not themselves present an 
undue risk of compromising that very secrecy.  See, e.g., 
McQueen, 1998 WL 217538, at *9 ("[L]iberal discovery rules 
in civil suits ... would expose grand jury deliberations, the 
identity of grand jurors, and other grand jury members to 
the public.  This would not only inhibit the grand jury's 
deliberative process, it would potentially expose grand jury 
members, government lawyers and agents, and witnesses to 
outside pressures and possible danger.  In short, it would 
eviscerate the very protections to the grand jury process Rule 

__________
     14  While we cannot permit the IC's assertions of risk to the 
grand jury to act as an impenetrable shield against the progress of 
a Rule 6(e)(2) investigation, we must give some credence to his 
assertions, since we are not privy to the status or the substance of 
the grand jury's investigation.



6 was intended to provide.");  Blalock, 844 F.2d at 1559 n.19 
(Tjoflat, J., specially concurring) (inquiry into status of grand 
jury's investigation, "especially when conducted in the context 
of an adversarial civil contempt proceeding, would inevitably 
lead to the disclosure of grand jury matters, the very vice 
Rule 6(e)(2) was designed to avoid");  Donovan v. Smith, 552 
F. Supp. 389, 390 (E.D. Pa. 1982) (denying defendants' re-
quest to depose lead government attorney and thereby "in-
trud[e] into his knowledge regarding the prosecution of this 
action").

     There is a further impediment to treating a Rule 6(e)(2) 
proceeding in all respects like a typical civil adversarial 
proceeding.  It would almost certainly engage the district 
court and the prosecutor in lengthy collateral proceedings 
and in so doing divert the grand jury from its investigation.  
How, for instance, could counsel for a Rule 6(e)(2) plaintiff be 
permitted to engage in discovery and in-court examination of 
government witnesses without granting the government's at-
torney a similar opportunity to depose movants' counsel, 
movants' associates, and, indeed, the movants themselves if 
they could be shown to have relevant information about how 
the leaks really occurred?  After all, if the government seeks 
to prove that it is not the source of the information reported, 
it has an interest in identifying the true source.  By setting 
forth a simple, two-step framework, we believe Barry sought 
to achieve a swift resolution of an alleged Rule 6(e)(2) viola-
tion and to put an immediate stop to any leaks while not 
unduly interfering with the work of the grand jury with a full-
blown sidebar trial on the Rule 6(e)(2) issue.  See Barry, 865 
F.2d at 1326 (show cause hearing "carries little threat of 
conflict with the grand jury proceedings") (internal quotation 
omitted);  cf. United States v. Dionisio, 410 U.S. 1, 17 (1973) 
("Any holding that would saddle a grand jury with minitrials 
... would assuredly impede its investigation and frustrate 
the public's interest in fair and expeditious administration of 
the criminal laws.");  Eisenberg, 711 F.2d at 966 (targets 
should not be permitted access to information that "would 
permit them to embark upon a broad scale investigation of 
their own").



     Given the lack of guidance in Barry on how to conduct the 
rebuttal phase of a Rule 6(e)(2) inquiry, it is not surprising 
that the district court proceeded as it did.  Nevertheless, we 
believe that the risks of even inadvertent disclosure of grand 
jury matters and the specter of unnecessary detraction from 
the main business of the grand jury's investigation are simply 
too serious to allow the movants[             
          ]full access to all relevant materials produced 
by the government or to let them conduct direct or cross-
examination of government investigative personnel during 
ongoing grand jury proceedings.  In our view, Barry did not 
contemplate such an adversarial evidentiary hearing as the 
next stage following a prima facie case.  Indeed, we have 
been hard pressed to find any case in which a Rule 6(e)(2) 
proceeding has been conducted in such a manner;  in all 
reported cases brought to our attention, in camera and/or ex 
parte proceedings have been the norm.  See, e.g., Eisenberg, 
711 F.2d at 966 (prohibiting preindictment participation by 
targets);  Barry v. United States, 740 F. Supp. at 888, 894 
(D.D.C. 1990) (district court holds government's documentary 
submission sufficient to rebut prima facie case);  Donovan, 
552 F. Supp. at 390 (court holds in camera proceeding in 
which government responded to questions submitted to court 
by defense counsel and by court);  see also Paul S. Diamond, 
Federal Grand Jury Practice and Procedure s 10.02 (3d ed. 
1997) ("It is rare indeed for a court to require that the 
government meet its burden under Rule 6 by presenting the 
testimony of its attorneys and agents, thus subjecting them to 
cross-examination.  There is obvious potential for defense 
abuse of the government and interference with the grand jury 
were the courts to require live rebuttal testimony in all 
cases.") (footnote omitted);  cf. Barry, 865 F.2d at 1326 (char-
acterizing request to disclose grand jury matters as "extraor-
dinary").  In balancing the movants' right to discovery and 
direct participation in questioning the IC or his prosecutors 
against the interest in maintaining grand jury secrecy, we 
must inevitably give priority to ensuring that a proceeding to 


enforce the protections of Rule 6(e)(2) does not ultimately 
subvert the rule itself.15

     B. The Appropriate Procedure

     We will now endeavor to set forth the contours of how a 
show cause hearing may proceed once a prima facie case has 
been established, recognizing that within these boundaries, 
the district court should have sufficient leeway to establish 
procedures it believes will assist it best in discovering the 
truth of the matter while at the same time not causing undue 
interference with either the work of the grand jury or that of 
the district court itself.

     We find the Eleventh Circuit's decision in Eisenberg to be 
the most useful precedent on the direction the show cause 
hearings should take.  In Eisenberg, the targets of two grand 
juries filed motions in district court alleging violations of Rule 
6(e)(2) and submitting as proof various newspaper articles 
that reported government agents and attorneys as the source 
of the information disclosed.  The district court, after finding 
the articles conclusively established the existence of a Rule 
6(e)(2) violation, ordered counsel for the government to iden-
tify to counsel for the targets "each government attorney, 
officer, agent, or employee with access to the aforedescribed 

__________
     15  Our decision to limit direct movant participation at this 
second stage of the show cause hearing is further fueled by the 
immediacy of the potential harm to the grand jury.  As we under-
stand it, this grand jury is still hearing testimony, and while the 
interest in grand jury secrecy does not disappear altogether after 
the investigation is concluded, see Douglas Oil, 441 U.S. at 222, it is 
at its most intense while the investigation is ongoing.  See, e.g., In 
re Grand Jury Subpoena, 72 F.3d 271, 275 (2d Cir. 1995) ("The 
government represents that the grand jury investigation here is 
very much ongoing, thereby heightening the government's interest 
in secrecy.").  Indeed, it would obviously be futile to invoke civil 
contempt sanctions, which are intended to be forward-looking and 
prophylactic, if grand jury proceedings were already concluded.  
This requires that extra care be taken in structuring appropriate 
Rule 6(e)(2) proceedings to ensure that the course of the grand 
jury's investigation is not diverted.



grand jury matters" as well as to furnish affidavits executed 
by each such person that included the identity of any news 
media representative with which they had communicated and 
the circumstances and substance of each communication.  Id. 
at 962 (internal quotation omitted).  As in our case, the 
government in Eisenberg did not contest the district court's 
conclusion that the news articles submitted established a 
prima facie case or that it was required to provide the 
designated information to the court for its consideration.  
The government did challenge, however, just as the IC does 
here, any requirement that it furnish that information directly 
to the targets at a time before any indictments had yet 
issued.  Id. at 963-64.

     The Eleventh Circuit reversed the district court's order to 
produce information about the press disclosure to the targets 
before indictments had been issued or the grand jury's inves-
tigation had ended.  Ruling that the articles established only 
a prima facie case, the Court of Appeals nonetheless found it 
appropriate for the district court to have ordered the govern-
ment "to take steps to stop any publicity emanating from its 
employees" before moving to a consideration of whether the 
government had in fact violated Rule 6(e)(2) by past disclo-
sures.  Id. at 964.  The court stated decisively, however, that 
the targets should not be allowed to participate directly in 
this inquiry as to the government's culpability.  Rather, the 
district court should first have conducted an in camera 
review of the government's proffer of evidence as to its 
conduct:

     [W]e do not think the court properly balanced the tar-
     gets' interest in the information with the harmful effects 
     that could follow the disclosure to targets' counsel of 
     names of all the government employees involved in the 
     investigation....  Such information could lead counsel to 
     call upon those government agents and attempt to inter-
     view them;  news would spread that the attorneys for the 
     targets were invading the province of the grand jury;  
     and prospective witnesses could be intimidated from 
     testifying.

Id. at 965.  As a result, the Eisenberg court held that the 
information identified by the district court "should first be 



furnished to the district court in camera";  after reviewing 
this material, the district court could then determine whether 
further proceedings were necessary as well as the extent of 
the targets' involvement in those proceedings.  Id. at 966.

     Admittedly, Eisenberg does not provide all the answers.  It 
is not entirely clear, for example, whether the Eisenberg 
court contemplated that the in camera review of the govern-
ment's rebuttal evidence might, if it failed to satisfy the judge 
as to the government's innocence or guilt, be followed by a 
hearing in which the targets' counsel would be allowed to 
participate in order to determine the existence of a violation, 
see id.  ("The court may subsequently determine whether a 
hearing should be held on the alleged government violations 
of Rule 6(e) and whether counsel for targets should be 
present at the hearing."), or whether the court would make 
the decision on the existence of a violation by itself and invite 
the presence of the targets' counsel only at the remedy stage, 
see id. at 965 ("Once the court determines that Rule 6(e) has 
been violated, the court may properly inform the targets' 
counsel of the names of the violators.  Targets' counsel may 
then play a proper role in hearings involving imposition of 
contempt sanctions on government employees.").  To the 
extent Eisenberg can be read to suggest that counsel for Rule 
6(e)(2) plaintiffs should be permitted to play an adversarial 
role in the show cause hearing, we cannot agree.  We do find 
persuasive, however, the Eisenberg court's conclusion that in 
camera review of the government's ex parte proffer is the 
most appropriate way to conduct proceedings in Rule 6(e)(2) 
cases and protect grand jury secrecy.

     The use of in camera review in proceedings collateral to a 
grand jury investigation is by no means novel.  District 
courts are often required to conduct an in camera review of 
grand jury material requested under Rule 6(e)(3)(C)(i) 16 to 

__________
     16  Rule 6(e)(3)(C)(i) permits disclosure of "matters occurring 
before the grand jury" when "so directed by a court preliminary to 
or in connection with a judicial proceeding."  Fed. R. Crim. P. 
6(e)(3)(C)(i).  Parties seeking such material must show "that the 
material they seek is needed to avoid a possible injustice in another 



determine what material, if any, is responsive to the need 
asserted by the requesting party;  this in camera review "is 
necessary due to the paramount concern of all courts for the 
sanctity and secrecy of grand jury proceedings."  Lucas v. 
Turner, 725 F.2d 1095, 1109 (7th Cir. 1984);  see also In re 
Special Grand Jury 89-2, 143 F.3d 565, 572 (10th Cir. 1998);  
S. Rep. No. 95-354, at 8 (1977), reprinted in 1977 
U.S.C.C.A.N. 527, 532 ("It is contemplated that the judicial 
hearing in connection with an application for a court order by 
the government under subparagraph (3)(C)(i) should be ex 
parte so as to preserve, to the maximum extent possible, 
grand jury secrecy.").  Similarly, courts often use in camera, 
ex parte proceedings to determine the propriety of a grand 
jury subpoena or the existence of a crime-fraud exception to 
the attorney-client privilege when such proceedings are nec-
essary to ensure the secrecy of ongoing grand jury proceed-
ings.  See, e.g., In re Grand Jury Nos. 95-7354, 96-7529 and 
96-7530, 103 F.3d 1140, 1145 (3d Cir.), cert. denied sub nom. 
Roe v. United States, 117 S. Ct. 2412 (1997) ("Ex parte in 
camera hearings have been held proper in order to preserve 
the ongoing interest in grand jury secrecy.");  In re Grand 
Jury Proceedings, Thursday Special Grand Jury Sep. Term, 
1991, 33 F.3d 342, 353 (4th Cir. 1994) ("[T]he government's 
proffer [as to the existence of the crime-fraud exception] was 
made in camera because it concerned matters subject to an 
on-going investigation before the grand jury.").  Although in 
camera, ex parte submissions "generally deprive one party to 
a proceeding of a full opportunity to be heard on an issue," In 
re John Doe Corp., 675 F.2d 482, 490 (2d Cir. 1982), and thus 
should only be used where a compelling interest exists, see, 
e.g., In re John Doe, Inc., 13 F.3d 633, 636 (2d Cir. 1994), we 
find that the nature of a Rule 6(e)(2) hearing, particularly 
when conducted during an ongoing grand jury investigation, 
involves such a compelling interest.  See, e.g., In re Grand 
Jury Proceedings, 33 F.3d at 353 (holding that "in camera 
proceedings in the context of grand jury proceedings and on-

__________
judicial proceeding, that the need for disclosure is greater than the 
need for continued secrecy, and that their request is structured to 
cover only material so needed."  Douglas Oil, 441 U.S. at 222. 



going investigations requiring secrecy are not violative of due 
process" despite lack of opportunity to rebut government's 
proffer);  In re John Doe, 13 F.3d at 636 ("[W]here an in 
camera submission is the only way to resolve an issue without 
compromising a legitimate need to preserve the secrecy of the 
grand jury, it is an appropriate procedure.");  In re John Doe 
Corp., 675 F.2d at 490 ("We recognize that appellants cannot 
make factual arguments about materials they have not seen 
and to that degree they are hampered in presenting their 
case.  The alternatives, however, are sacrificing the secrecy 
of the grand jury or leaving the issue unresolved at this 
critical juncture.").

     In light of these concerns, we conclude that the show cause 
hearing in this instance should not proceed in a fully adver-
sarial manner when only a prima facie case has been made.  
We emphasize, however, that the burden of rebutting the 
prima facie case will lie with the IC, who must now come 
forward with evidence, in whatever form the district court 
requires (including affidavits, depositions, production of docu-
ments, or live testimony) to rebut the inferences drawn from 
the news articles that established the prima facie case of a 
Rule 6(e) leak to the press by personnel in or "close to" the 
IC's office.  This evidence should be submitted ex parte and 
in camera for the district court's review.  Because the gov-
ernment must negate at least one of the two prongs of the 
prima facie case--by showing either that the information 
disclosed in the media reports did not constitute "matters 
occurring before the grand jury" or that the source of the 
information was not the government--relevant evidence 
might include "what actually occurred before the grand jury, 
whether the purported grand jury disclosures are accurate, 
the identities of its employees with access to any of the grand 
jury information disclosed, and whether these individuals in 
turn provided any such information to the media," Barry, 740 
F. Supp. at 890, as well as evidence as to the IC's general 
policies concerning press contacts, evidence as to the actual 
source of information reported by the press, or evidence 
describing any actual exchanges between a member of the 
IC's staff and a member of the press associated with one of 



the identified reports.  The district court's task at this stage 
is to review the IC's evidentiary submissions and determine 
whether they are sufficient to rebut the movants' prima facie 
case--in other words, whether the evidence presented by the 
government is sufficient to render the identified press re-
ports 17 inaccurate either in their characterization of material 
as grand jury related or in their identification of the source of 
the information.  If the district court determines that the 
IC's submission is insufficient to rebut the prima facie case, 
or, indeed, if the IC or a member of his staff admit to 
violations, no further proceedings are necessary, and the 
district court may proceed to find that a Rule 6(e)(2) violation 
has occurred and determine the appropriate remedy.  The 
announcement of the court's finding should be available to the 
movants and their participation in any remedy hearing pre-
sumptively allowed.  If, on the other hand, the district court 
determines that the IC's submission conclusively rebuts the 
prima facie case, the show cause order should be dis-
charged.18  In either event, this first stage should be ex parte 

__________
     17  Although Barry makes reference to a determination of 
whether there has been a "pattern or practice of impermissible 
disclosures of grand jury material," see Barry, 865 F.2d at 1325, 
this should not be construed as requiring the district court to 
extend the Rule 6(e)(2) inquiry beyond the news articles submitted 
by the movants.  Indeed, in order to limit the district court's 
function to adjudication rather than investigation, we find it entirely 
appropriate to limit any findings to those articles. 

     18  Because it is unlikely that a news report will attribute the 
disclosure of purported grand jury material to a specific individual, 
it is possible that a showing as to each individual associated with the 
IC who has access to certain material will be required to constitute 
sufficient rebuttal.  Cf. Lance, 610 F.2d at 219 ("The inability to 
show a definite source for some of the information contained in the 
articles might cause a prima facie case to fail if a responsive 
affidavit denying the allegations is made.").  We note that pursuant 
to Rule 6(e)(3)(B) of the Federal Rules of Criminal Procedure, the 
IC is required to provide to the district court the names of any 
government personnel who have been made privy to grand jury 
material in order to assist the IC in his investigation. 



and in camera in order to minimize the intrusion on the 
interests protected by Rule 6(e)(2).

     If, however, after review of the government's rebuttal case 
the district court finds that it cannot make an adequate 
determination as to whether a violation of the rule has 
occurred, or if the district court cannot identify with certainty 
the individual or individuals responsible, further proceedings 
may be appropriate.  Although the district court should take 
care to protect the secrecy of the grand jury investigation by 
continuing to conduct the proceedings in camera and ex 
parte, we do not wish unnecessarily to cabin the district 
court's discretion as to the type of factfinding tools it may 
use.  The court may, for example, request further affidavits 
or other types of documentary evidence from either the 
government or the movants;  it may request that a member of 
the IC's staff or another witness answer questions of the 
court or questions submitted by the movants upon the court's 
invitation;  the court may, if it so chooses, appoint a special 
master or other individual to collect evidence and submit a 
report to the district court for its review and adjudication.  
See, e.g., Eisenberg, 711 F.2d at 966 ("We can conceive of 
circumstances where a district court could seek the appoint-
ment of a special counsel to assist the court in determining 
whether Rule 6(e) violations had occurred.").19

     If at the end of the day the district court determines that a 
violation of Rule 6(e)(2) has occurred, it may report this 
finding to the movants and identify the government agent or 
attorney responsible for the disclosure.20  See Eisenberg, 711 
F.2d at 965.  The movants may then participate in determin-
ing the appropriate remedy, which, as we have noted, may 
include equitable relief, contempt sanctions, or both, see 

__________
     19  The movants acknowledged before the district court, and the 
IC stated in oral argument before this court, that the involvement 
of such an individual might be appropriate.  See Prehearing Memo-
randum of President Clinton (March 10, 1998), at 3. 

     20  Ordinarily, the court should not reveal the precise substance 
of the disclosure to the movants, as this would tend to reveal 
"matters occurring before the grand jury." 



Barry, 865 F.2d at 1321-22, keeping in mind that the relief 
granted should be "carefully tailored to avoid unnecessary 
interference with grand jury proceedings," id. at 1323.  Final-
ly, the district court must keep a transcribed record of what 
transpired in any in camera proceeding;  should the grand 
jury ultimately issue indictments, the indicted party or par-
ties may request the transcript of the Rule 6(e)(2) proceed-
ings in order to determine whether to contest any indictment 
on the basis of the violation.  See Eisenberg, 711 F.2d at 965;  
Fed R. Crim. P. 6(e)(3)(C)(ii) (disclosure of grand jury matters 
permitted "at the request of the defendant, upon a showing 
that grounds may exist for a motion to dismiss the indictment 
because of matters occurring before the grand jury").21

                                     IV.


     We are keenly aware that allegations that a government 
official has violated Rule 6(e)(2) are not to be taken lightly.  
As Justice Frankfurter noted, "[t]o have the prosecutor him-
self feed the press with evidence ... is to make the State 
itself through the prosecutor, who wields its power, a con-
scious participant in trial by newspaper, instead of by those 
methods which centuries of experience have shown to be 
indispensable to the fair administration of justice."  Stroble v. 
California, 343 U.S. 181, 201 (1952) (Frankfurter, J., dissent-
ing).  It is the very interests in protecting grand jury secrecy 
underlying the rule, however, that call for the utmost discre-
tion on the part of the courts to ensure that the rule is not 
breached in the very act of rooting out violations.  We believe 
the intent of Barry in characterizing the inquiry into Rule 
6(e)(2) violations as civil is honored by allowing the movants 
to identify any violations of the rule and, if necessary, to 
participate in crafting a remedy designed to stop further 
violations.  Any direct participation in deciding whether a 

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     21  At this stage an adversarial presentation may be appropriate, 
since "[w]hat appears to be harmless to a district judge may be 
prejudicial if seen in light of a defense counsel's special familiarity 
with a given prosecution."  United States v. Fowlie, 24 F.3d 1059, 
1066 (9th Cir. 1994). 



violation has occurred and by whom should be allowed by the 
district court only in extraordinary circumstances and as a 
last resort.  The procedure we have outlined is designed to 
"allow the court to focus on the culpable individual rather 
than granting a [discovery] windfall" to the movants.  Bank 
of Nova Scotia v. United States, 487 U.S. 250, 263 (1988).

     We have decided the merits of the IC's challenge to the 
district court orders by granting its petition for writ of 
mandamus.  Accordingly, we dismiss the appeal in No. 
98-3077 et al., vacate the procedural aspects of the district 
court's orders of June 19 and June 26, and remand for further 
proceedings consistent with this opinion.

                                                                                   It is so ordered.


          
