## Facts

- A federal grand jury in the Northern District of California investigated alleged criminal price-fixing in the DRAM industry.
- The grand jury subpoenaed major DRAM manufacturers for documents about competitor contacts and DRAM pricing.
- John Doe, a former DRAM salesperson responsible for pricing at a manufacturer, was identified as potentially having relevant information; the employer did not have his calendars or similar personal business records.
- A cooperating witness from another manufacturer described meetings and calls with Doe about DRAM prices.
- FBI agents interviewed Doe; he admitted discussing pricing with competitors and emailing his supervisor about those discussions, but denied possessing relevant records and said he left them at work.
- The government served Doe personally with an April 18, 2003 grand jury subpoena duces tecum requiring him to appear and produce any documents in his possession relating to DRAM manufacturing or sales, including handwritten notes, calendars, diaries, appointment books, and similar materials.
- Doe refused to produce documents, invoking the Fifth Amendment on the theory that the act of production would itself be testimonial and incriminating.

## Issues

1. Whether producing documents responsive to the subpoena would be a testimonial and incriminating “act of production” protected by the Fifth Amendment.
2. Whether the government showed, with sufficient particularity, that the existence, possession, and authenticity of the demanded documents were a “foregone conclusion,” defeating the act-of-production privilege.

## Decision

- The Ninth Circuit reversed the district court’s denial of Doe’s motion to quash and reversed the contempt order.
- The court held the subpoena’s breadth and open-ended scope meant compliance would require Doe to use his own judgment to identify responsive materials, making the act of production testimonial.
- The court held the government failed to establish the foregone conclusion exception because it lacked sufficiently specific, independent knowledge that particular responsive documents existed in Doe’s possession at the time of the subpoena.
- The case was remanded for further proceedings consistent with the opinion.

## Legal Principles

- The Fifth Amendment may protect a person from compelled document production when the act of producing documents communicates testimonial assertions, including existence, possession or control, and authenticity.
- A subpoena that is broad and requires the witness to make extensive determinations about what documents are responsive can render the act of production testimonial because it compels use of the contents of the witness’s mind.
- Under the foregone conclusion doctrine, the government may compel production only if it can show with reasonable particularity, based on information independent of the witness’s act, that the documents exist, are in the witness’s possession or control, and are authentic.
- General suspicions, role-based assumptions, or evidence of contacts and misconduct do not, without more, establish that specific responsive documents exist in the witness’s possession so as to negate the testimonial value of production.

## Conclusion

The court held that compelling an individual to comply with a broad, open-ended grand jury subpoena can violate the Fifth Amendment where the act of production would be testimonial and the government cannot show with reasonable particularity that the demanded documents’ existence, possession, and authenticity are already known as a foregone conclusion.


In re Grand Jury Subpoena Dated Apr. 18, 2003, 383 F.3d 905 (9th Cir. 2004)