The US Court of Appeals for the Ninth Circuit held last week that the Department of Justice may subpoena foreign documents that were turned over to US law firms as part of discovery in civil litigation. 

In In re: Grand Jury Subpoenas, No. 10-15758 (9th Cir. Dec. 7, 2010), the Ninth Circuit held that the district court abused its discretion in quashing grand jury subpoenas issued as part of a criminal antitrust investigation. In 2006, the United States began an antitrust investigation into whether electronics companies engaged in price-fixing in the liquid crystal display (LCD) panel market for flat panel televisions. Shortly after the government began its investigation, private plaintiffs brought civil antitrust suits against the same electronics companies. The civil litigation resulted in the civil defendants producing documents that had originated outside of the United States. Once these foreign documents were relocated to US law firms within the United States and within the reach of the federal grand jury, the US government issued subpoenas seeking them as part of the grand jury investigation. The district court quashed the subpoenas, but the Ninth Circuit reversed, holding that the district court abused its discretion because the documents were within the jurisdiction of the US court and there was no allegation of collusion between the government and the civil plaintiffs. The Ninth Circuit concluded that there was no authority that prohibited the government from obtaining these documents, which were properly “within the jurisdiction of the grand jury.”

In re: Grand Jury Subpoenas could have significant consequences for foreign and multinational corporations facing parallel criminal investigations and civil litigation. Foreign and multinational corporations, and their legal counsel, should be cognizant of this decision when producing documents originally held outside of the United States in civil litigation. Corporations and their counsels should be aware that bringing such documents into the United States as part of the discovery process could make them subject to a grand jury subpoena in a parallel criminal investigation.

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