In Re Grand Jury Subpoena
646 F.3d 159
4th Cir.2011Background
- Under seal appellant Company 1 (foreign) appeals district court's denial of its motion to quash grand-jury subpoenas served on intervenor Company 2.
- Subpoenas seek documents Company 1 produced to Company 2 in the Civil Litigation between the two companies in the Eastern District of Virginia.
- Protective Order in summer 2009 restricted disclosure of confidential materials but anticipated subpoenas and required notice and potential objections.
- Two subpoenas issued: August 14, 2009 and May 21, 2010, seeking documents related to Civil Litigation materials, including Confidential and Confidential—Attorneys' Eyes Only documents.
- District court found government interactions with Company 2 were not improper and that the subpoenas trumped the Protective Order; Company 1 timely appeals.
- This appeal addresses whether the government could obtain Company 1's documents via Company 2 and whether the Protective Order governs the subpoenas.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MLAT exclusivity limits government subpoenas to a foreign party | Company 1 argues MLAT replaces letters rogatory as exclusive means | The MLAT does not apply here; documents were from Civil Litigation in the U.S. | MLAT not exclusive; not applicable because documents sought were in U.S. via Civil Litigation |
| Whether Rule 17(c) permits using civil discovery to reach criminal evidence | Civil discovery cannot be used to subvert criminal-recovery limits | Subpoenas targeted documents already located in the U.S.; not a parallel civil action | Subpoenas pass Rule 17; not a subversion of criminal process |
| Whether there was improper collusion between the government and Company 2 | Government colluded to bring Company 1's documents to the U.S. | No evidence government directed Company 2; cooperation due to shared interests | No clear error; no improper collusion found |
| Whether Protective Order defeats the subpoenas or the subpoenas trump it | Protective Order should bar disclosure of confidential docs | Grand jury subpoenas trump protective order; law supports disclosure | Subpoenas trump the Protective Order; enforcement proper |
| Whether an evidentiary hearing was required on collusion issues | An evidentiary hearing is warranted to uncover work-product communications | District court already examined communications; no basis for hearing | No error; no need for further evidentiary proceedings |
Key Cases Cited
- In re Grand Jury Subpoena, 584 F.3d 175 (4th Cir. 2009), 584 F.3d 175 (4th Cir. 2009) (abuse-of-discretion review and Rule 17 guidance in grand juries)
- Branzburg v. Hayes, 408 U.S. 665 (U.S. 1972) (grand jury investigative powers and right to evidence; strong presumption against interference)
- United States v. R. Enterprises, Inc., 498 U.S. 292 (U.S. 1991) (scope of grand jury powers; context-dependent reasonableness)
- In re TFT-LCD (Flat Panel) Antitrust Litig., No. M-07-1827-SI, 2010 WL 1264601, 2010 WL 1264601 (N.D. Cal. 2010) (district court decision on civil discovery versus criminal subpoenas (cited))