In re Grand Jury: Producing Foreign Documents Under the Per Se Rule

In re Grand Jury: Producing Foreign Documents Under the Per Se Rule

Ninth Circuit Requires Production of Foreign Documents Under Per Se Rule that Grand Jury Subpoena Trumps Civil Protective Order in In re Grand Jury Subpoenas

By Jordan Heller Esq

Summary: The Ninth Circuit's decision in In re Grand Jury Subpoenas is significant because it explicitly extends Meserve's per se rule that grand jury subpoenas take priority over civil protective orders to foreign documents located in the United States. Jordan Heller performs an in-depth analysis of this decision in this article that appears in the second issue of The Antitrust Report.

Background: In a recent victory for the federal government, the Ninth Circuit allowed enforcement of a subpoena served on counsel that sought documents and deposition transcripts brought into the United States for the purpose of civil litigation. The court reached this conclusion based on the Circuit's per se rule that a grand jury subpoena takes precedence over a civil protective order. The law firms subject to the subpoena-White & Case LLP and Nossaman LLP-are now seeking review by the Supreme Court. They urge the Court to reverse the Ninth Circuit and resolve the disagreement between circuits over what to do when a grand jury subpoena demands documents shielded by a civil protective order.

The case arose in 2006, in the wake of press reports that the Department of Justice was investigating whether price-fixing had occurred among manufacturers of liquid crystal display (LCD) panels. Private plaintiffs filed over a hundred individual and class action suits seeking civil damages. White & Case and Nossaman each represents one of the defendant LCD manufacturers named in those suits. The cases were transferred to the Northern District of California for multidistrict proceedings before Judge Susan Illston. After the Department of Justice raised concerns that civil discovery could hamper the grand jury investigation, the court allowed the DOJ to intervene in the consolidated civil cases.

During the course of the litigation, the parties brought certain documents and deposition transcripts into the United States to comply with the requirements of civil discovery. Under the discovery stay, the DOJ was permitted to review-but not copy-these foreign documents. In addition, the court entered a stipulated protective order prohibiting the use of documents produced in discovery for any purpose other than prosecuting the civil litigation. The DOJ attempted to modify the stay order to allow it copy the foreign discovery, but the court refused, reasoning that the discovery was reluctantly brought into the United States under court order and that the DOJ's request would unduly expand its subpoena power beyond the current geographical limits. Accordingly, the court prohibited the DOJ from copying any foreign documents brought to the United States by unindicted defendants. Adopting the language of the Special Master, the court explained that the foreign defendants "are still guaranteed certain protections regarding criminal proceedings and those protections must be safe-guarded, so that the government does not overstep its power, intentionally or otherwise."

Undeterred, the DOJ then issued grand jury subpoenas to four of the law firms representing parties in the consolidated cases, seeking all current and future civil discovery, including the foreign documents. The firms moved to quash the subpoenas, and the district court granted the motion. The court found inapplicable the Ninth Circuit's per se rule that protective orders cannot block discovery from grand jury subpoenas, because case underlying that rule, In Re Grand Jury Subpoena Served on Meserve, Mumper & Hughes, 62 F.3d 1222 (9th Cir. 1995), [enhanced version available to subscribers] did not address foreign documents that would otherwise be outside the government's subpoena power.


Jordan Heller is an associate in the San Francisco office of Gibson, Dunn & Crutcher. She is a member of the firm's Litigation Department. Her practice includes domestic and international antitrust matters, class action litigation, and appellate litigation. Ms. Heller received her J.D. from Harvard Law School in 2006, where she was the recipient of the Boykin C. Wright Prize as a finalist in the Ames Moot Court Competition. She received her A.B., magna cum laude, in History from Princeton University in 2002. Prior to joining Gibson Dunn, Ms. Heller was a law clerk to the Honorable Linda Copple Trout of the Idaho Supreme Court. subscribers can access the complete commentary, In re Grand Jury: Producing Foreign Documents Under the Per Se Rule. Additional fees may be incurred. (approx. 5 pages)

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