## Facts

- The Department of Justice Antitrust Division conducted a criminal antitrust investigation of certain corporate entities.
- After the investigation became public, private plaintiffs filed related civil antitrust suits that were consolidated in the Northern District of California.
- In the civil litigation, corporate defendants produced documents originating outside the United States to their counsel (the subpoenaed law firms) under a civil protective order.
- To obtain materials for a federal grand jury investigation of the law firms’ clients, the government served grand jury subpoenas on the law firms seeking nonprivileged foreign-origin documents in the firms’ possession.
- The law firms moved to quash under Federal Rule of Criminal Procedure 17(c)(2), arguing enforcement would be unreasonable or oppressive because the documents were produced under a protective order, originated abroad, and involved unindicted foreign companies.
- The district court quashed the subpoenas, citing the novelty and potential breadth of the issues and indicating appellate review would be preferable.

## Issues

1. Whether the district court properly quashed grand jury subpoenas for nonprivileged documents held by law firms when the documents were produced in civil discovery under a protective order and originated outside the United States.
2. Whether a civil protective order limits enforcement of a federal grand jury subpoena for nonprivileged materials.
3. Whether the foreign origin of the documents and the producing companies’ unindicted status justified quashing under Rule 17(c)(2).
4. Whether the district court abused its discretion by quashing primarily to obtain appellate guidance rather than applying controlling law.

## Decision

- The Ninth Circuit reversed and remanded.
- The district court abused its discretion in quashing the subpoenas.
- The court applied a per se rule that a grand jury subpoena takes precedence over a civil protective order.
- Because the requested materials were nonprivileged and there was no finding of governmental bad faith, Rule 17(c)(2) did not support quashing.
- The foreign origin of the documents and the lack of indictments did not create an exception to enforcement when the documents were within the custody of domestic law firms.

## Legal Principles

- In the Ninth Circuit, a grand jury subpoena takes precedence over a civil protective order as to nonprivileged materials.
- Under Federal Rule of Criminal Procedure 17(c)(2), a subpoena may be quashed only if compliance would be “unreasonable or oppressive.”
- Absent privilege, prosecutorial bad faith, or a concrete showing of oppression or undue burden, a civil protective order does not make compliance with a grand jury subpoena unreasonable or oppressive.
- Documents brought into the possession of a domestic recipient through civil litigation may be obtained by grand jury process even if the documents originated abroad.

## Conclusion

The Ninth Circuit held that nonprivileged documents in law firms’ possession, even if obtained through civil discovery under a protective order and originating overseas, remain subject to federal grand jury subpoenas, and that quashing such subpoenas without a recognized Rule 17(c)(2) basis is an abuse of discretion.


In re Grand Jury Subpoenas, Served on White & Case LLP, Lieff, Cabraser, Heinemann, Bernstein LLP, K&L Gates LLP, & Nossaman LLP, 627 F.3d 1143 (9th Cir. 2010)