United States Steel Corporation, et al.,1 are defendants in an antitrust suit filed by the State of Texas on its behalf and on behalf of "all similarly situated political subdivisions and tax-supported institutions within the State of Texas" alleging that the defendants violated the Sherman Act2 and § 15.04(a) of the Texas Business and Commerce Code. As a part of its discovery program Texas sought from the defendants grand jury subpoenas, schedules, notices, summonses or other documents requesting the attendance of any person and the production of any documents and transcripts of testimony by employees of defendants before the federal grand jury that returned indictments in United States of America v. Armco Steel Corporation, et al., Criminal Action No. 73-H-336, in the United States District Court for the Southern District of Texas.3 Each defendant had obtained transcripts of testimony by its own employees pursuant to a motion filed in the criminal action under Fed.R.Crim.P. 16(a)(1)(A).4 All the defendants agreed not to share the transcripts with one another, and there is no claim or indication that this has been done. After the defendants refused to surrender the documents and transcripts, the state's motions to compel production were granted by the trial court in an order directing all nine defendants to provide the State of Texas with the documents and transcripts. The court prescribed protective measures in his order that sealed the grand jury documents, limiting their availability solely to the state's attorneys for their assistance in the preparation of the case for trial. He also certified the order for interlocutory appeal under 28 U.S.C. § 1292(b) (1970), granted leave to appeal, and stayed the effect of his order pending disposition of the appeal.

The issue presented is whether the State of Texas must show a particularized need to obtain the grand jury documents from the defendants and, if so, whether it has made that showing in this case.5

Once again we must undertake the "delicate task of balancing the policy which requires secrecy for the proceedings of the grand jury with the policy which requires that there be full disclosure of all available evidence in order that the ends of justice may be served." Allis-Chalmers Manufacturing Co. v. City of Fort Pierce, 323 F.2d 233, 238 (5th Cir. 1963). Yet we must balance the scales with our thumb on one pan: it is not the facts but the trial judge's exercise of discretion that we weigh; and we may reverse only if we decide that he abused that discretion in granting discovery. See Allis-Chalmers, supra at 241. Notwithstanding, we conclude that in this case the trial judge erred.

(D)isclosure of grand jury testimony is properly granted where there is a compelling need for such disclosure and such disclosure is required by the ends of justice. Disclosure even in these circumstances must be closely confined to the limited portions of the testimony for which there is found to be a particularized need.

323 F.2d at 242. The State of Texas' principal position here is that factual peculiarities in this case and the general policy favoring discovery distinguish the particularized need test of Allis-Chalmers, so that no showing of such need is requisite in this instance. A subsidiary argument is that the corporate defendants' discrete possession of portions of the relevant documents provides sufficient particularized need to justify discovery under Allis-Chalmers. The argument runs that only when grand jury secrecy is threatened does the particularized need test come into play and that only an attempt to discover the transcripts from the grand jury or those under the imposed silence of Fed.R.Crim.P. 6(e)6 significantly threatens grand jury secrecy. When the corporate defendants have the collective transcripts in their several possessions, Texas argues, that secrecy cannot be threatened because it has already been breached, and normal discovery rules should apply.

The State underrates the importance of and misconceives the reasons for the cloak of grand jury secrecy: although several reasons exist,7 the one most pertinent to this case is the desire to create a sanctuary, inviolate to any intrusion8 except on proof of some special and overriding need, where a witness may testify, free and unfettered by fear of retaliation. When the witness obtains his own transcript, this ground of grand jury secrecy remains unaffected. The State concedes as much in admitting that, absent a showing of particularized need, it could not hope to obtain civil discovery from an individual witness merely because he had obtained the transcript of his own testimony. By this concession the State recognizes that requiring such disclosure would in some degree compromise the effectiveness of the grand jury. In such a case the issue, of course, would be whether this diminishment of effectiveness was warranted in the particular instance by some special consideration: particularized need. We conclude that similar arguments justify the appellants' present reliance on this policy to protect them from discovery in the absence of a showing of particularized need.

As noted, the State attempts to avoid the requirement of a showing of particularized need, a requirement that it admits would apply in the case of an individual witness, by the claim that disclosure to the corporate defendants has already breached grand jury secrecy. It is said that disclosure of a corporate employee's testimony to his employer sufficiently breaches the wall of grand jury secrecy by creating fears of retaliation in the corporate employee9 as to dispense with the particularized need requirement.

This argument ignores the usual case in which corporate spokesmen (for the corporation, by necessity, must rely on its employees to do its talking) appear before a grand jury representing and speaking for the corporation, indeed in a real sense are the corporation on such an occasion. When the corporation, in such a case, acquires transcripts of its spokesmen's testimony, it acts in a capacity little different from an individual defendant who seeks his own transcript.10 Moreover, we have previously noted the "weighty considerations favoring corporate discovery" of the testimony of corporate employees. See United States v. Hughes, 413 F.2d 1244, 1251-52 (5th Cir. 1969). To impose upon that discovery the consequence for which Texas here contends automatic discoverability in civil proceedings would restrict unduly the corporation's use of the criminal defense tool which Congress saw fit to grant in Fed.R.Crim.P. 16(a)(1)(A).

We must bear in mind the Supreme Court's language in United States v. Proctor & Gamble, 356 U.S. 677, 681-82, 78 S. Ct. 983, 986, 2 L. Ed. 2d 1077 (1958):

(W)e start with a long established policy that maintains the secrecy of the grand jury proceedings in the federal courts. . . . The reasons are varied. One is to encourage all witnesses to step forward and testify freely without fear of retaliation. The witnesses in antitrust suits may be employees or even officers of potential defendants, or their customers, their competitors, their suppliers. The grand jury as a public institution serving the community might suffer if those testifying today knew that the secrecy of their testimony would be lifted tomorrow. This 'indispensable secrecy of grand jury proceedings' . . . must not be broken except where there is a compelling necessity. There are instances when that need will outweigh the countervailing policy. But they must be shown with particularity. (citations and footnotes omitted, emphasis supplied).

In the face of this teaching, we are not free to adopt any such broadcast rule of automatic discovery as that for which Texas contends.

To be sure, the appearance before a grand jury of a corporate employee or even a corporate officer may not be in the capacity of corporate spokesman. The testimony of a hostile or disaffected employee may well be a special case and this circumstance a factor in the calculus of particularized need. But Texas' bold and broad assault neither notes nor regards such narrow considerations, and no distinction on any such basis is attempted before us. It is to be whole hog or none, and none it is.

Our journey is not ended, however, for the trial court invoked the language of Allis-Chalmers in his grant of discovery:

This Court is of the opinion that Plaintiff's request does fall within the parameters of Allis-Chalmers, and that Plaintiff has shown a compelling need if only by virtue of the fact that the testimony is in the possession of Defendants.

The invocation of Allis-Chalmers, however, does not establish its applicability. Allis-Chalmers requires the party seeking discovery to invoke the trial judge's discretion by seeking use of the grand jury testimony "to impeach a witness, to refresh his recollection, to test his credibility and the like." See Proctor & Gamble, supra at 682, 78 S. Ct. 983. The general circumstance that another party has his own or his employees' transcript in his possession does not, standing alone, establish particularized need sufficient to overcome the need for grand jury secrecy. Texas must draw a finer bead.11

REVERSED.