801 F.3d 1072
9th Cir.2015Background
- DOJ/FBI conducted a criminal antitrust investigation into the optical disk drive industry and made secret consensual tape recordings of conversations involving John Doe (an employee of a investigated company). The recordings occurred before a grand jury subpoena for Doe's testimony and Doe was not indicted.
- Dell Plaintiffs (private civil antitrust plaintiffs) later served a civil subpoena on the DOJ seeking the recordings and verbatim transcripts for use in the collateral civil litigation.
- DOJ initially objected under Touhy regulations and Rule 6(e), then negotiated production under a protective order; Doe (a non-party) intervened and moved to quash, arguing Rule 6(e) secrecy protects the recordings and their disclosure would harm his reputation and livelihood.
- Magistrate judge denied Doe’s motion to quash but delayed production until parties signed a supplemental protective order; district court affirmed, reasoning the recordings were not "matters occurring before the grand jury" and Rule 6(e) did not bar disclosure.
- Doe appealed; this Court reviewed under the Perlman doctrine for immediate appealability and applied the clearly erroneous/contrary to law standard to the magistrate/district rulings.
Issues
| Issue | Plaintiff's Argument (Doe) | Defendant's Argument (District/DOJ/Dell) | Held |
|---|---|---|---|
| Whether the tape recordings are "matters occurring before the grand jury" protected by Rule 6(e) | Recordings were created for the grand jury investigation and thus are grand jury materials shielded from disclosure | Recordings were made independently (consensual recordings) before grand jury activity and sought for their own evidentiary value, so Rule 6(e) does not bar production | Recordings are not "matters occurring before the grand jury"; Rule 6(e) does not protect them |
| Whether the Ninth Circuit must apply the "effect test" (Dynavac/Catania approach) to decide Rule 6(e) coverage | Court must apply the effect test to assess whether disclosure would reveal grand jury inner workings | Ninth Circuit has not adopted the effect test and declines to adopt it here | Court declines to adopt the effect test; district court need not perform that document-by-document inquiry |
| Whether district court made unsupported factual findings about the recordings’ creation/use | Recordings were made under FBI supervision as part of the grand jury probe, so they should be treated as grand jury material | Temporal and factual record shows recordings predated the grand jury subpoena and were developed independently | District court’s factual conclusions were not clearly erroneous; mere use or review by a grand jury does not convert preexisting materials into Rule 6(e) matters |
| Whether deference to DOJ’s negotiated production was improper | DOJ’s prior statements show Rule 6(e) applies; deference improperly abdicates court’s supervisory role | DOJ explicitly excluded producing materials it believed were grand jury material and negotiated production only for non-grand-jury materials; court retained supervisory role | District court did not abuse discretion in accepting DOJ’s position and approving production under protective order |
Key Cases Cited
- United States v. Dynavac, 6 F.3d 1407 (9th Cir.) (1993) (discusses various tests for Rule 6(e) and declines to adopt the Third Circuit’s effect test)
- Perlman v. United States, 247 U.S. 7 (1918) (doctrine permitting immediate appeal from discovery orders affecting third-party rights)
- United States v. Interstate Dress Carriers, Inc., 280 F.2d 52 (2d Cir. 1960) (Rule 6(e) protects grand jury room proceedings, not the underlying documents’ future disclosure when not used to reveal grand jury processes)
- In re Grand Jury Matter (Catania), 682 F.2d 61 (3d Cir. 1982) (adopts effect test assessing whether disclosure reveals inner workings of grand jury)
- Sec. & Exch. Comm’n v. Dresser Indus., Inc., 628 F.2d 1368 (D.C. Cir. 1980) (preexisting documents reviewed by a grand jury are not necessarily grand jury materials)
- In re Grand Jury Subpoena, 103 F.3d 234 (2d Cir. 1996) (information developed by investigators may exist independently of grand jury processes)