DRI –The Voice of the Defense Bar Files Amicus Brief in U.S. Supreme Court Case White & Case v. U.S.
Apr 23, 2011
CHICAGO, IL (Law Firm Newswire) April 22, 2011 – DRI – The Voice of the Defense Bar filed an amicus curiae brief with the United States Supreme Court in the case of In re Grand Jury Subpoenas served on White & Case, et al., 677 F.3d 1143 (9th Cir. Dec. 7, 2010). The brief challenged the Ninth Circuit decision that blindly applied a per se rule that ignores civil protective orders whenever information covered by such a protective order is sought by a grand jury subpoena, and urged the Court to accept the petition for writ of certiorari in White & Case v. United States (U.S. Feb. 25, 2011) (No. 10-1147).
The case began as a grand jury investigation of alleged antitrust violations in the foreign and domestic LCD flat-screen industries. As is typical in anti-trust, securities and other business-regulation cases, after the grand jury investigation became public through news reports, the class-action bar filed dozens of civil cases across the country. The numerous civil actions were centralized in one Multi-District Litigation proceeding in the Northern District of California, where the grand jury investigation was initiated and ongoing.
The class-action cases proceeded in parallel with the U.S. Department of Justice’s grand jury investigation. Early on DOJ intervened in the civil cases to obtain a stay of discovery, arguing that civil discovery would interfere with the grand jury and that “employees of the companies under investigation could be placed in the untenable position of having to choose between asserting their Fifth Amendment right against self-incrimination in a civil deposition, with the negative interference that comes with that decision, or testifying in a civil deposition and running the risk of self-incrimination in the criminal matter.”
The DOJ then issued grand jury subpoenas to several law firms in the U.S. representing parties involved in class actions and sought all existing and future civil discovery including all foreign-originating material that had been brought to the U.S. and ignoring longstanding methods of obtaining foreign discovery designed to respect foreign sovereigns’ rights. The law firms moved to quash the subpoenas, the district court granted the motion, and the Ninth Circuit reversed.
“Not only has the Ninth Circuit decision expressly defined a three-way split among the circuits about the legal standard for determining which takes precedence,” stated Illinois attorney Steve Puiszis, chair of DRI’s Judicial Task Force and a member of its Amicus Committee, “it has jeopardized full and fair civil proceedings and also expanded the territorial subpoena power of criminal prosecutors.”
DRI identified two destructive consequences of the Ninth Circuit’s decision. First, it encourages plaintiffs to seek extremely broad and foreign-based discovery to leverage potential criminal prosecution to force quick civil settlements. Second, it encourages the plaintiffs’ bar to forum shop. The Fourth, Ninth and Eleventh Circuits follow the same rule. The Second Circuit has adopted the opposite approach, and the First and Third Circuits have adopted a rebuttable presumption that grand jury subpoenas take precedence over civil protective orders. DRI believes it would be naïve to think that the plaintiffs’ bar would not exploit the Fourth, Ninth and Eleventh Circuits’ advantages and forums.
For these reasons and others, and because the Ninth Circuit decision has broad implications for many areas of law and industries, DRI – The Voice of the Defense Bar identified this case as one of great importance to the interests of DRI’s membership. The DRI Amicus Committee elected to support the petitioner by participating jointly as amicus with the U.S. Chamber of Commerce. In supporting the petition, DRI sent a strong message to the Court that this case presents an important issue worthy of review.
The DRI brief was authored by Lisa S. Blatt of Arnold & Porter LLP in Washington, D.C. To read the brief in its entirety, go to:
http://www.dri.org/ContentDirectory/Public/Amicus%20Briefs/2011%20White%20and%20Case%20LLP%20v%20United%20States%20of%20America%20[DOJs%20authority%20to%20subpoena%20despite%20protective%20orders].pdf
About DRI – The Voice of the Defense Bar
DRI – The Voice of the Defense Bar is an international organization of defense attorneys and corporate counsel that is recognized as a thought leader and an advocate for the defense bar at the national and state level, as well as in Europe. With more than 22,000 members, DRI provides members and their clients with access to world-class education, legal resources and numerous marketing and networking opportunities that facilitate career and law firm growth. For more information log on to www.dri.org.
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