DRI –The Voice of the Defense Bar Files Amicus Brief in U.S. Supreme Court Case White & Case v. U.S.

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DRI –The Voice of the Defense Bar Files Amicus Brief in U.S.
Supreme Court Case White & Case v. U.S.
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%2
0United%20States%20of%20America%20[DOJs%20authority%20to%20subpoena%20despite%20protective%2
0orders].pdf
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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.
Media Contact:
Vicki Bendure, APR
540-687-3360
202-374-9259 c
Vicki@bendurepr.com
DRI - The Voice of the Defense Bar
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Chicago, IL 60603
http://www.dri.org
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