Aller v. State,  No. CV-25-0176-PR (August 24, 2026) (J. King) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2026/CV250176PR.pdf?ver=LK9JtSiianq-IwONwMRwuw%3d%3d

PARTY MUST SHOW A “PARTICULARIZED NEED” WHICH OUTWEIGHS SOCIETIAL INTERESTS IN MAINTAINING SECRECY OF GRAND JURY PROCEEDINGS TO BE ALLOWED TO USE GRAND JURY TRANSCRIPTS IN CIVIL LITIGATION

Plaintiff's company was chosen by the Higley Unified School District to serve as project manager and developer for the construction of new schools. Arising out of the procurement bidding process, plaintiff was indicted by a grand jury for violations of the Arizona Administrative Code procurement rules—conspiracy, fraudulent schemes, artifices and practices. The government improperly provided the grand jury with the wrong procurement code. Consequently, the Maricopa County Superior Court remanded the case back to the grand jury. A second grand jury also indicted plaintiff. Under A.R.S. § 21-411(A) and Ariz. R. Crim. P. 12.7(c) plaintiff was provided a copy of the grand jury transcripts. Thereafter the criminal case was dismissed with prejudice.

During the pendency of the criminal action, plaintiff sought leave to use the grand jury transcripts in civil actions against the state for malicious prosecution. Plaintiff claimed a “particularized need” for the transcripts in the civil actions as they would establish “fabricated findings were incorporated into the Auditor General Report, which, in turn, supplied the basis for the alleged false testimony of state agents before the grand jury.” The trial court denied this request finding the need for secrecy of grand jury proceedings outweighed plaintiff's need for the transcripts and that the information in the transcripts was publicly available to plaintiff in other forms.

Plaintiff then brought this special action. The Arizona Court of Appeals denied plaintiff's request. The Arizona Supreme Court reversed and remanded the trial court and vacated the court of appeals opinion.

The supreme court first noted that the “particularized need” test was established before 1971 when state law first provided that defendants in criminal matters were entitled to a copy of these transcripts. The supreme court found that nonetheless this test and the need to preserve secrecy of grand jury transcripts continue to guide whether such transcripts can be used in a civil action. How the test should be applied today requires clarification.

Moving forward the supreme court sets forth a procedural framework for addressing the right to use such transcripts.

First, the former defendant should file a motion with the

superior court asserting a good faith belief that he has a “particularized

need” to use the transcript in the civil action.2  See Ariz. R. Civ. P. 11.  He

should explain why his “particularized need” outweighs societal interests

in grand jury secrecy.  The former defendant should also file the grand jury

transcript under seal and identify which portions of the transcript he seeks

to use in the civil action.  If necessary, the motion may also be filed under

seal.

This motion should be filed in the civil action not the underlying criminal action. 

The state should be entitled to respond to the motion to “defend the societal interests in grand jury secrecy” even if the state is not a party to the civil action. 

The trial court should then conduct an in camera review of the transcripts and balance the claimed “particularized need” against the societal interests in secrecy, followed by an order explaining the court's reasoning. If the motion is granted the trial court should also  “provide the scope of authorized use of the grand jury transcript and any appropriate conditions on use, such as redactions or protective orders.”

If the action where a party seeks to use the transcripts is filed in federal court, because the federal rules on this subject are substantially different from Arizona's, the Arizona court and not the federal court should decide if and how the transcripts can be used. If there is no accompanying state civil action, the motion should be brought in the superior court that supervised the grand jury activities.