Opinion
Nos. 13893, 13894.
Argued November 1, 1957.
Decided December 19, 1957.
Mr. Daniel J. Freed, Washington, D.C., with whom Messrs. William J. Hughes, Jr., Herbert A. Bergson, and Daniel H. Margolis, Washington, D.C., were on the brief, for appellant.
Mr. Henry Geller, Atty. Dept. of Justice, with whom Mr. Daniel M. Friedman, Atty. Dept. of Justice, was on the brief, for appellee.
Before WILBUR K. MILLER, FAHY and DANAHER, Circuit Judges.
During the grand jury proceedings which preceded these criminal cases, the United States obtained and copied thousands of documents from the files of the Maryland and Virginia Milk Producers Association. After the cases had terminated favorably to the Association, the Government returned to it the original documents but refused to return the copies, claiming them as its own property and saying it will or possibly may rely upon some of them in the trial of a civil action now pending in the United States District Court for the District of Columbia (Civil Action No. 4482-56, United States v. Maryland and Virginia Milk Producers Ass'n, Inc., 20 F.R.D. 441).
The Association moved the District Court to require the return of the copies. The motion was denied, 1957, 151 F. Supp. 438, the trial judge holding that, as the documents could be reached by the Government through discovery process in the civil action, it would be vain to order the copies delivered to the Association. This appeal is from the denial of the motion.
We hold the United States may retain the copies of the documents in question, subject to the following limitations:
1. That it may use in the trial of the pending civil action only such of the documents, of which it has retained copies, as it could obtain through discovery processes applicable to civil actions, and only such as are enumerated by it as those upon which it will or possibly may rely, in a list to be served upon the Association on or before March 10, 1958, and in no event less than 60 days prior to the commencement of such trial;
2. That the United States may use in the trial of any future civil action against the Association only such of the documents, of which it has retained copies, as it could obtain through discovery processes available to civil actions and only such as are enumerated by it as those upon which it will or possibly may rely, in a list to be served upon the Association not less than 60 days prior to the commencement of the trial of any such future civil action;
3. That in the lists the documents intended to be relied upon shall be described and referred to by the identification numbers placed thereon by the Association at the time of their submission.
The order appealed from should be modified to include the foregoing provisions.
Affirmed as modified.