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In Re: Grand Jury
December 7, 2010
IN RE: GRAND JURY SUBPOENAS, SERVED ON WHITE & CASE LLP, LIEFF, CABRASER, HEINEMANN, BERNSTEIN LLP, K&L GATES LLP, D.C. AND NOSSAMAN LLP,
UNITED STATES OF AMERICA, APPELLANT.
Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding
The opinion of the court was delivered by: Opinion by Judge Noonan
Argued and Submitted November 3, 2010-San Francisco, California
Before: John T. Noonan and Richard A. Paez, Circuit Judges, and Kevin Thomas Duffy, District Judge.*
*The Honorable Kevin Thomas Duffy, United States District Judge for the Southern District of New York, sitting by designation.
The United States appeals an order of the district court quashing certain subpoenas directed to the respondent law firms named in the caption of the case (the Law Firms). The subpoenas sought non-privileged material in aid of a grand jury investigating the clients of the Law Firms. The material had been obtained by the firms as a result of civil discovery in an antitrust suit. Holding that the district court abused its discretion, we reverse its order.
In 2006, the United States was conducting an antitrust investigation into alleged criminal conduct. Soon afer this investigation became public, a number of civil suits were filed by private plaintiffs against the companies under investigation. These suits were consolidated in the Northern District of California before District Judge Illston. The litigation resulted in the production by the civil defendants of documents originating outside the United States. The documents at issue here came into the possession of the Law Firms in the United States.
In this case the United States subpoenaed these documents. Invoking Federal Rule of Criminal Procedure 17, the Law Firms moved to quash. The district court stated that it found no authority governing the case. It concluded: "However, because the motions to quash raise novel issues with potentially far-reaching implications about the power of the grand jury and the relationship between grand jury proceedings and civil discovery of unindicted foreign defendants, the Court finds it is more prudent to quash the subpoenas and allow the DOJ to raise these issues on appeal to the Ninth Circuit." This appeal followed.
On appeal, the Law Firms argue that the district court exercised its discretion under Fed. R. Evid. 17 to quash the subpoenas and that the court of appeals should respect its reasonable exercise of discretion. We do not read the district court's decision as an exercise of discretion but as a passing of the decision to ...
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