Opinion
00 Civ. 0648 (LAK)
July 31, 2000
ORDER
The Antitrust Division of the Department of Justice has moved, on behalf of the United States of America, to intervene in these actions and to stay all depositions and answers to interrogatories until the conclusion of a grand jury investigation currently being conducted in this district. It also seeks an order permitting the filing of its papers under seal.
1. The motion for leave to intervene is granted to the extent that the United States may intervene for the purpose of making this application.
2. The motion to seal the motion papers is puzzling. On the one hand, the Antitrust Division states that its papers contain grand jury information the confidentiality of which is protected by FED. R. CRIM. P. 6(e). On the other hand, it has submitted a certificate stating that it has served copies of its papers on counsel for plaintiffs and defendants in these civil actions. It is difficult to imagine the point of sealing the papers if, in fact, they have been disseminated this widely. Against the possibility that the certificate of service is erroneous, the government's affidavit and memorandum of law will be filed under seal. Absent a further showing by the government, however, the seal will be opened on or after August 8, 2000.
3. The government's motion to stay depositions and answers to interrogatories pending conclusion of its grand jury investigation is troublesome because the motion is made in such conclusory terms. There has been no showing as to why the investigation has not been concluded or why the additional time forecast by the government is needed. The contention that the investigation would be prejudiced by the discovery the government seeks to stay is simply a bald assertion. While it might well prove appropriate, should the grand jury return an indictment, to stay certain civil discovery pending resolution of the criminal case, there is no indictment now. The possibility that a criminal defendant might use discovery in a civil case to obtain information to which he or she has no right under the Criminal Rules currently is theoretical.
Nevertheless, the Court does not wish to take any material risk of prejudicing the investigation. In all the circumstances, the Court stays depositions of present or former employees and officials of Christie's and Sotheby's and their affiliates and answers to interrogatories by defendants through September 11, 2000. In the event the government seeks a further stay, it will have to make a substantially more persuasive case that it did on this occasion.
SO ORDERED.