Technology has erased global boundaries, and so has the federal judiciary. Recent decisions by the Fourth and Ninth Circuit Courts of Appeals have upheld federal prosecutors’ use of criminal grand jury subpoenas to obtain foreign documents brought into the United States under the compulsion of civil discovery and governed by civil protective orders. These decisions enhance prosecutors’ ability to conduct international investigations at a time when the Department of Justice (DOJ) is aggressively targeting international antitrust and Foreign Corrupt Practices Act (FCPA) violations. See News Release, Dep’t of Justice, Assistant Attorney General Lanny A. Breuer Speaks at the 24th National Conference on the Foreign Corrupt Practices Act (Nov. 16, 2010), see also Dep’t of Justice, Antitrust Division Update Spring 2011.
Prosecutors may thus, in certain cases, be able to sidestep the lengthy international methods for obtaining foreign discovery, which not only require notice to the foreign sovereign but also a determination from the sovereign, regarding whether the material should be produced at all. See Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444, 847 U.N.T.S. 231, art. 12 (signatory may refuse request to the extent it “considers that its sovereignty or security would be prejudiced thereby”); art. 23 (permitting signatory to declare at time of ratification that it will not execute Letters of Request issued for the purposes of obtaining pretrial discovery of documents); see also U.S. Department of State Judicial Assistance Circular, Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (State Department cautions that “[s]ome countries require case-by-case permission from the foreign central authority before a voluntary deposition can be taken.”).
The circuit courts have long been divided on the interplay between grand jury subpoenas and civil protective orders with respect to documents maintained by domestic companies. The Fourth, Ninth, and Eleventh Circuit Courts adhere to the rule that grand jury subpoenas trump civil protective orders. In re Grand Jury Subpoena (Under Seal), 836 F.2d 1468 (4th Cir. 1988); United States v. Janet Greeson’s A Place For Us (In re Grand Jury Subpoena Served on Meserve, Mumper & Hughes), 62 F.3d 1222 (9th Cir. 1995); In re Grand Jury Proceedings (Williams), 995 F.2d 1013 (11th Cir. 1993). The Second Circuit holds the view that grand jury subpoenas yield to civil protective orders “absent a showing of improvidence in the grant of a . . . protective order or some extraordinary circumstance or compelling need.” Martindell v. ITT, 594 F.2d 291, 296 (2d Cir. 1979). Each of these stands in contrast to the middle ground taken by the First and Third Circuits, where there is a rebuttable presumption that grand jury subpoenas take priority over civil protective orders. In re Grand Jury Subpoena (Roach), 138 F.3d 442 (1st Cir. 1998); In re Grand Jury, 286 F.3d 153 (3d Cir. 2002).