## Facts

- A federal grand jury in the Southern District of New York subpoenaed a New York corporation to produce extensive business records dating from 1991 in connection with an investigation into alleged bribery of senior foreign officials.
- The corporation operated offices in New York and in two locations within a foreign sovereign (the “Republic”).
- The corporation produced about 300,000 pages but withheld additional documents.
- The corporation asserted two principal objections to production:
  - Approximately 1,100 documents in New York were claimed to be protected by the Republic’s asserted “executive privilege.”
  - Documents located in the Republic allegedly could not be produced without violating the Republic’s laws, supported by opinions from high legal officials of that government.
- The government moved to compel production of all remaining documents except those protected by attorney-client privilege or work product.
- The corporation also moved to strike, or alternatively obtain disclosure of, a sealed ex parte affidavit submitted by the government’s case agent.

## Issues

1. Whether a foreign sovereign’s asserted executive privilege can bar enforcement of a federal grand jury subpoena for relevant corporate documents.
2. Whether the court should decline to compel production of documents located abroad when compliance would allegedly violate foreign law and expose the subpoenaed party to sanctions.
3. Whether the court may consider a sealed ex parte, in camera case-agent affidavit in resolving a motion to compel in a grand jury matter, and whether the affidavit must be disclosed or struck.

## Decision

- The court granted the government’s motion to compel production of the remaining subpoenaed documents from all corporate offices, including those located in the Republic, subject only to traditional attorney-client and work-product protections.
- The court rejected the Republic’s asserted executive privilege as a basis to withhold documents from the grand jury on the record presented.
- The court declined to excuse compliance based on foreign law objections after weighing international comity factors and the United States’ law-enforcement interests.
- The court denied the corporation’s motion to strike the government’s ex parte affidavit and denied the request for disclosure, permitting the affidavit to remain under seal and relying on in camera review.

## Legal Principles

- Grand jury subpoenas are enforced broadly; evidentiary privileges that withhold relevant evidence are construed narrowly.
- A foreign sovereign’s asserted executive or confidentiality privilege is not automatically controlling in a U.S. criminal investigation; the court may scrutinize the claim and weigh it against the grand jury’s need for evidence.
- Foreign illegality of compliance does not, by itself, prevent enforcement of a U.S. subpoena; courts may compel production after weighing comity considerations, including:
  - the competing national interests,
  - the importance of the requested information to the investigation, and
  - the hardship and sanction risk to the producing party.
- In grand jury-related proceedings, ex parte, in camera submissions may be permitted to protect investigative secrecy or sensitive information, so long as the court independently reviews the materials.

## Conclusion

The court compelled the corporation to produce subpoenaed documents located both domestically and abroad, holding that neither a foreign executive privilege claim nor foreign blocking laws outweighed the grand jury’s need for evidence in a serious corruption investigation, and it permitted the government to support its motion with a sealed ex parte affidavit reviewed in camera.


In re Grand Jury Subpoena Dated Aug. 9, 2000, 218 F. Supp. 2d 544 (S.D.N.Y. 2002)