PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: GRAND JURY SUBPOENA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
UNDER SEAL, No. 10-4815
Intervenor-Appellee,
v.
UNDER SEAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, Senior District Judge.
(310-MS-115)
Argued: March 22, 2011
Decided: June 15, 2011
Before NIEMEYER and DAVIS, Circuit Judges, and
Ronald Lee GILMAN, Senior Circuit Judge of the United
States Court of Appeals for the Sixth Circuit,
sitting by designation.
Affirmed by published opinion. Senior Judge Gilman wrote
the opinion, in which Judge Niemeyer and Judge Davis
joined.
2 IN RE: GRAND JURY SUBPOENA
COUNSEL
ARGUED: Stephen Blake Kinnaird, PAUL HASTINGS
JANOFSKY & WALKER, LLP, Washington, D.C., for
Appellant. Richard Daniel Cooke, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia; Ste-
phen Matthew Byers, CROWELL & MORING, LLP, Wash-
ington, D.C., for Appellees. ON BRIEF: Dana J. Finberg,
SONNENSCHEIN NATH & ROSENTHAL, LLP, Palo Alto,
California; Jeffrey G. Randall, PAUL HASTINGS JANOF-
SKY & WALKER, LLP, Palo Alto, California; Rhodes B.
Ritenour, Christina D. Trimmer, LECLAIRRYAN, PC, Rich-
mond, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Alexandria, Virginia, Brian R. Hood, Assis-
tant United States Attorney, Michael S. Dry, Assistant United
States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for the United States.
Clifton S. Elgarten, Michael J. Songer, CROWELL & MOR-
ING, LLP, Washington, D.C.; Brian C. Riopelle, Rodney A.
Satterwhite, MCGUIREWOODS LLP, Richmond, Virginia,
for Intervenor-Appellee.
OPINION
GILMAN, Senior Circuit Judge:
The under seal appellant (Company 1), a foreign company,
is appealing the district court’s denial of its motion to quash
the government’s grand-jury subpoenas served on the under
seal intervenor (Company 2). The subpoenas seek documents
that Company 1 delivered to Company 2 in response to dis-
covery requests that arose during the course of civil litigation
between the two companies in the United States District Court
for the Eastern District of Virginia. Company 2 has entered
this case as an intervenor in support of the government. For
the reasons set forth below, we affirm the denial of Company
1’s motion to quash the government’s subpoenas.
IN RE: GRAND JURY SUBPOENA 3
I. Background
A. Factual background
In 2007, the government commenced an investigation of a
former Company 2 employee who began providing consulting
services to Company 1 after his employment with Company
2 ended. The government was looking into the possible theft
of Company 2’s trade secrets. This inquiry, in turn, led the
government to investigate Company 1’s use of the proprietary
information. The employee ended up pleading guilty in
December 2009 to theft of trade secrets, in violation of 18
U.S.C. § 1832, and to obstruction of justice, in violation of 18
U.S.C. § 1512(c).
Company 2 filed suit against Company 1 in early 2009,
alleging a number of claims based on the same theft-of-trade-
secrets allegations (the Civil Litigation). This separate lawsuit
is currently pending before the district court.
The interests of Company 2 and the government are gener-
ally aligned in attempting to halt and to seek redress for Com-
pany 1’s alleged misappropriation of Company 2’s trade
secrets. Company 2 and the government have therefore coop-
erated with each other in a number of ways over the course
of their respective proceedings. In a January 2009 email, an
Assistant United States Attorney informed Company 2’s
counsel that the government wanted to be as helpful as possi-
ble in providing Company 2 with information that the govern-
ment had obtained in the course of its investigation, but that
under the relevant rules and regulations, the government was
not able to "carte blanche . . . turn over everything in [its] pos-
session." In this same email, the government informed Com-
pany 2 that the government’s investigation was "dead." The
U.S. Attorney therefore did not see any problem with Com-
pany 2 filing its civil complaint.
Company 2 explains that it had delayed filing its civil com-
plaint in compliance with the government’s request that Com-
4 IN RE: GRAND JURY SUBPOENA
pany 2 defer to the government’s criminal investigation. After
receiving the government’s email, Company 2 forwarded a
copy of its civil complaint to the government the day before
the complaint was filed. The government also sought Com-
pany 2’s assistance and advice in the government’s investiga-
tion. In August 2009, the two parties agreed to meet to discuss
the ongoing proceedings. Company 1 claims that with Com-
pany 2’s assistance and with the information that Company 2
obtained in the Civil Litigation, the government was able to
revive its investigation of Company 1 in 2010.
In the summer of 2009, Company 2 and Company 1
entered into a protective order (the Protective Order), pursu-
ant to which materials that were designated as "Confidential"
and/or "Confidential—Attorneys’ Eyes Only" "shall not be
used or disclosed for any purposes other than the litigation of
this action." In addition, "Confidential—Attorneys’ Eyes
Only" documents could be disclosed only to outside counsel
and not to the parties themselves.
The Protective Order also provided for the eventuality that
one of the parties and/or the protected material might be the
subject of a subpoena or other legal process. In such a situa-
tion, the subpoenaed party would be required to give prompt
written notice to the party that had produced the subpoenaed
information within 10 business days of the receipt of the sub-
poena. The subpoenaed party would also be required to
object, to the extent permitted by law, to the production of the
protected material.
If the party attempting to obtain the protected material were
to "take action" to enforce its subpoena, then the receiving
party would "first respond by setting forth the existence of
this Order and shall give prompt written notice to the produc-
ing party of such action . . . within ten (10) business days of
notice of any such action." The party that originally produced
the documents would then be afforded 10 business days fol-
lowing its receipt of notice to attempt to prevent compliance
IN RE: GRAND JURY SUBPOENA 5
with the subpoena. But the Protective Order did not require
any party "to challenge or appeal any order requiring produc-
tion of confidential information covered by this Order, or to
subject itself to any penalties for noncompliance with any
legal process or order, or to seek any relief from the Court."
Two subpoenas that the government served on Company 2
to obtain documents that Company 1 produced in the Civil
Litigation are at issue. The first subpoena is dated August 14,
2009 and the second one is dated May 21, 2010.
With regard to the first subpoena, the government asked
Company 2: "Who should I direct the subpoena to, what
address/fax, and how would you like it to read?" Company 2
responded by providing the following wording that was used
by the government in seeking Company 1’s production of
documents to Company 2: "documents produced to [Company
2’s] outside counsel . . . on August 11, 2009 by [Company
1’s] counsel . . . . Documents were produced pursuant to a dis-
covery production between the parties." Company 2 produced
approximately 4,200 pages on August 26, 2009 in response to
this subpoena.
In September 2009, the government complimented Com-
pany 2 on its quick pace of reviewing Company 1’s docu-
ments and asked Company 2 the date of its civil-discovery
cutoff. Then, in October 2009, Company 2 informed the gov-
ernment that Company 2 had received a specific Company 1
email that the government had asked about. But Company 2
revealed only that it had received this communication and did
not disclose the message’s contents.
Company 1 produced more documents to Company 2 in
early 2010, including documents that were designated as
"Confidential" and/or "Confidential—Attorneys’ Eyes Only."
According to Company 1, Company 2 helped revive the gov-
ernment’s investigation by alerting the government to Com-
pany 2’s early 2010 receipt of Company 1’s confidential
6 IN RE: GRAND JURY SUBPOENA
documents. The second subpoena, served in May 2010, spe-
cifically requested that Company 2 produce Company 1’s
documents that were marked "Confidential" and/or
"Confidential—Attorneys’ Eyes Only." Pursuant to the Pro-
tective Order, Company 2’s outside counsel notified Com-
pany 1 of the second subpoena. Company 1 responded by
objecting to Company 2’s production to the government of
the "Confidential" and "Confidential—Attorneys’ Eyes Only"
documents, and further objected to the production of any and
all documents that Company 1 had produced in the Civil Liti-
gation.
Company 2 did not immediately produce any documents in
response to the second subpoena, but rather notified the gov-
ernment that Company 2 was required to object to the disclo-
sure of Company 1’s confidential materials. The government
responded by stating that it was willing to discuss steps to
protect sensitive information. But the government also noti-
fied Company 2 that the U.S. Attorney’s Office would file a
Motion to Show Cause if Company 2 failed to produce
responsive documents.
Pursuant to the terms of the Protective Order, Company 2
then informed Company 1 that the government was intending
to "take action" against Company 2 if Company 2 did not pro-
duce the subpoenaed documents. Company 2 further notified
Company 1 that if Company 1 did not take action within 10
days to prevent Company 2’s disclosure, then Company 2
would be permitted to fulfill its legal duty to comply with the
government’s subpoena. Although Company 2 did not itself
have access to the "Confidential—Attorneys’ Eyes Only"
documents, it explained to Company 1 that Company 2 could
still comply with the subpoena through its outside counsel,
who did have access to the documents. Company 2 also ques-
tioned Company 1’s position that Company 2 should not pro-
duce even nonconfidential Company 1 documents.
IN RE: GRAND JURY SUBPOENA 7
B. Procedural background
On June 21, 2010, Company 1 filed its Motion to Quash the
Subpoenas in the district court. The court stayed Company 2’s
compliance with the subpoenas pending its decision on Com-
pany 1’s motion. On July 2, 2010, Company 2 intervened and
filed a Statement of Position as Subpoenaed Party in support
of the government’s ability to obtain the subpoenaed docu-
ments.
In response, Company 1 argued that the government should
not have been allowed to obtain Company 1’s documents
from Company 2 because the government was improperly
involved in the Civil Litigation between the two companies.
Company 1 also argued that allowing Company 2 to give
Company 1’s documents to the government would violate the
Protective Order.
In its request for relief, Company 1 petitioned the district
court to order the government to return any documents that
Company 2 produced pursuant to the first subpoena and to
preclude the government from utilizing or reviewing such
documents. Company 1 also requested a closed evidentiary
hearing to determine the extent of Company 2’s interaction
with the government.
The government and Company 2 argued in response that
the government was not involved in the Civil Litigation and
that its interactions with Company 2 were in furtherance of
the government’s independent criminal investigation. Com-
pany 2 also argued that the grand jury’s subpoena power
trumps the Civil Litigation’s Protective Order.
On July 26, 2010, the district court ruled that the govern-
ment’s interactions with Company 2 were not improper. Com-
pany 2 was found to have independently engaged in the Civil
Litigation to further its individual interests. And the govern-
ment’s communications with Company 2 were determined to
8 IN RE: GRAND JURY SUBPOENA
be part of the government’s attempt to redress Company 2’s
victimization by a former employee who had pleaded guilty
to stealing Company 2’s trade secrets.
The court also ruled that the subpoenas trumped the Protec-
tive Order. Company 1’s motion to quash and its motion to
keep the court’s stays in place pending appeal were subse-
quently denied. With the stays lifted, Company 2 became free
to comply with the subpoenas.
Company 1 timely appealed the judgment of the district
court. In its request for relief, Company 1 asks us to reverse
the district court’s decision and to remand the case for entry
of a judgment requiring the government to return and/or
destroy any Company 1 documents that the government has
received. It also seeks to prevent the government from using
those documents against Company 1.
II. Discussion
We review the district court’s denial of a motion to quash
a subpoena under the abuse-of-discretion standard of review.
In re Grand Jury Subpoena John Doe, No. 05GJ1318, 584
F.3d 175, 182 (4th Cir. 2009). Under this standard, the district
court’s rulings of law are reviewed de novo and its factual
findings are reviewed under the clear-error standard. Id.
Rule 17(c)(2) of the Federal Rules of Criminal Procedure
provides that the district court "may quash or modify [a] sub-
poena if compliance would be unreasonable or oppressive."
The grand jury’s "investigative powers are necessarily broad"
because it serves the important dual roles of "determining if
there is probable cause to believe that a crime has been com-
mitted and of protecting citizens against unfounded criminal
prosecutions." Branzburg v. Hayes, 408 U.S. 665, 686-88
(1972). "Thus, in the context of a grand jury subpoena, the
longstanding principle that the public has a right to each per-
son’s evidence is particularly strong. Absent a compelling
IN RE: GRAND JURY SUBPOENA 9
reason, a court may not interfere with the grand jury process."
In re Grand Jury Proceedings #5 Empanelled January 28,
2004, 401 F.3d 247, 250 (4th Cir. 2005) (citation omitted).
And a party attempting to quash a subpoena bears the burden
of rebutting the "presumption of regularity" that attaches to a
grand jury’s proceedings. See United States v. Brothers Const.
Co. of Ohio, 219 F.3d 300, 314 (4th Cir. 2000).
On the other hand, the grand jury’s investigatory powers
are not unlimited, and "what is reasonable depends on the
context." United States v. R. Enterprises, Inc., 498 U.S. 292,
299 (1991) (internal quotation marks omitted). A subpoena
may be unreasonable or oppressive under Rule 17(c) if it is
"irrelevant, abusive or harassing, overly vague, or excessively
broad," or "if compliance is likely to entail consequences
more serious than even severe inconveniences occasioned by
irrelevant or overbroad requests for records." In re Grand
Jury, John Doe No. G.J. 2005-2, 478 F.3d 581, 585 (4th Cir.
2007) (citations and internal quotation marks omitted).
A. Rule 17 of the Federal Rules of Criminal Procedure
and the Mutual Legal Assistance Treaty (MLAT)
Company 1 argues that the government subverted the limi-
tations on obtaining documents from foreign parties that are
imposed by Rule 17 of the Federal Rules of Criminal Proce-
dure and the MLAT between the United States and Company
1’s home country. Rule 17(e)(2), in combination with 28
U.S.C. § 1783, provides that a grand-jury subpoena may be
served in the United States or, if the subpoenaed party is a
United States national or resident, in a foreign country. Com-
pany 1 correctly points out that because it is neither a United
States national nor a resident, Rule 17(e)(2) prevents the gov-
ernment from serving a grand-jury subpoena on Company 1
in a foreign country. See United States v. Moussaoui, 382
F.3d 453, 462-63 (4th Cir. 2004) (noting the "well established
and undisputed principle that the process power of the district
court does not extend to foreign nationals abroad").
10 IN RE: GRAND JURY SUBPOENA
Furthermore, Company 1 contends, the use of letters roga-
tory—a procedure whereby a court within the United States
can make a formal request to a foreign court to serve a sub-
poena—is the traditional method for obtaining discovery from
a foreign party. See 22 C.F.R. § 92.54. Because the power of
letters rogatory may be limited by foreign countries, however,
this mechanism does not allow for the same breadth and ease
of discovery as do the Federal Rules of Criminal Procedure.
The United States has negotiated MLATs with various
countries to facilitate legal proceedings involving foreign par-
ties without having to resort to letters rogatory. "As their
names suggest, these treaties provide for bilateral, mutual
assistance in the gathering of legal evidence for use by the
requesting state in criminal investigations and proceedings."
In re Premises Located at 840 140th Ave. NE, Bellevue,
Wash., 634 F.3d 557, 564 (9th Cir. 2011).
1. The MLAT
Company 1 argues that the MLAT between the United
States and Company 1’s home country replaces the use of let-
ters rogatory as the exclusive means for the government to
obtain criminal discovery from a party located in that country.
But this argument is without force in the present circum-
stances because the government did not obtain any discovery
from Company 1. Rather, the government served the subpoe-
nas on Company 2, seeking documents that were brought into
the United States through the Civil Litigation.
Moreover, the MLAT specifically provides that "[t]he Con-
tracting Parties may also provide assistance pursuant to any
bilateral agreement, arrangement, or practice which may be
applicable." (Citation omitted.) In United States v. Rommy,
506 F.3d 108, 129 (2d Cir. 2007), the Second Circuit noted
that similar treaty language in the MLAT with the Nether-
lands, "[b]y its express terms, . . . has no application to evi-
dence obtained outside the MLAT process." We agree, and
IN RE: GRAND JURY SUBPOENA 11
therefore conclude that the MLAT is not the exclusive means
for the government to obtain documents from a party located
in Company 1’s home country in aid of the government’s
criminal investigation.
Company 1 has also failed to show that the MLAT gives
rise to a private right of action that can be used to restrict the
government’s conduct. The MLAT explicitly states that it "is
intended solely for mutual legal assistance between the Con-
tracting Parties. The provisions of this Treaty shall not give
rise to a right on the part of any private person to obtain, sup-
press, or exclude any evidence or to impede the execution of
a request." (Citation omitted.) See also Rommy, 506 F.3d at
129 (determining that the defendant had failed to show "that
the treaty creates any judicially enforceable individual right
that could be implicated by the government’s conduct here").
2. Rule 17 of the Federal Rules of Criminal Procedure
Company 1 next contends that "it is unreasonable for the
Government to convert civil discovery mechanisms into a
means to circumvent the restrictions on grand jury subpoena
powers and the MLAT." It thus claims that the subpoenas are
unreasonable under Rule 17(c). Alternatively, Company 1
asks us to create a new procedural rule under our supervisory
authority that would prohibit the government from obtaining
Company 1’s documents in this circuitous manner.
We agree with the general principle that "civil discovery
may not be used to subvert limitations on discovery in crimi-
nal cases, either by the government or by private parties."
McSurely v. McClellan, 426 F.2d 664, 671-72 (D.C. Cir.
1970) (citing United States v. Parrott, 248 F. Supp. 196, 199-
-202 (D.D.C. 1965) ("The Court holds that the Government
may not bring a parallel civil proceeding and avail itself of
civil discovery devices to obtain evidence for subsequent
criminal prosecution.")). But, as explained above, the govern-
ment here did not bring a parallel civil proceeding against
12 IN RE: GRAND JURY SUBPOENA
Company 1. Rather, the government subpoenaed documents
that were already located in the United States pursuant to dis-
covery initiated by Company 2.
The Ninth Circuit recently decided a factually similar case.
There, as in the present case, the government subpoenaed
documents that originally had been located outside of the
United States but were produced in this country as part of sep-
arate civil-discovery proceedings with a private plaintiff. See
In re: Grand Jury Subpoenas, 627 F.3d 1143, 1144 (9th Cir.
2010). Company 1 relied on the district court’s decision in
that case, which, in quashing the subpoenas, allowed the gov-
ernment to view, but not copy, the subpoenaed documents.
See In Re TFT-LCD (Flat Panel) Antitrust Litig., No. M-07-
1827-SI (N.D. Cal. Mar. 29, 2010). Due to the absence of any
precedent on point, however, the district court in the Flat
Panel case explicitly sought appellate guidance.
The Ninth Circuit subsequently reversed the lower court’s
decision to quash the government’s subpoenas. As the Ninth
Circuit explained, "[b]y a chance of litigation, the documents
have been moved from outside the grasp of the grand jury to
within its grasp. No authority forbids the government from
closing its grip on what lies within the jurisdiction of the
grand jury." In re: Grand Jury Subpoenas, 627 F.3d at 1144.
The present case is factually similar to the scenario that the
Ninth Circuit dealt with in In re: Grand Jury Subpoenas, and
we believe that the result should be the same.
B. Allegations of collusion between Company 2 and the
government
Company 1 argues for a different result here because the
government allegedly subverted its ordinary criminal-
subpoena power by colluding with Company 2 to obtain
Company 1’s documents, which the government could not
have obtained directly from Company 1. According to Com-
pany 1, the government "had a role in helping cause the docu-
IN RE: GRAND JURY SUBPOENA 13
ments, the foreign-based documents, to be brought . . . to the
United States."
Had the government in the present case directed Company
2 to request documents from Company 1 in the Civil Litiga-
tion so that the government could then, in turn, subpoena
those documents from Company 2, Company 1 would have a
basis for arguing that the government had used civil discovery
"to subvert limitations on discovery in criminal cases."
McSurely, 426 F.2d at 671-72. But the district court expressly
found that there was no evidence that Company 2 engaged in
discovery in the Civil Litigation at the behest of the govern-
ment. Nor was there "any evidence that the United States
played any role in securing the documents of [Company 1] to
be produced to [Company 2] in the civil litigation."
Company 2’s substantial interaction with the government,
as detailed above, including Company 2’s assistance to the
government with the subpoenas and Company 2’s updates
regarding its civil-discovery progress, do not show that the
government was directing Company 2’s civil discovery.
Rather, the cooperation between the parties reflects the fact
that the government and Company 2 were assisting one
another in advancing their independent but shared interests.
Company 2, after all, has its own interest in redressing,
through the civil-litigation process, the injuries that it alleges
were caused by Company 1. We therefore see no basis to hold
the district court’s factual findings clearly erroneous.
Company 1 attempts to counter the force of these findings
by arguing that
whether the United States gave specific direction to
[Company 2] is a red herring. The Government did
not need to do so to accomplish its purposes because
it . . . knew that [Company 2’s] civil discovery would
reach documents that the Government could not
14 IN RE: GRAND JURY SUBPOENA
obtain by a grand jury subpoena . . . or by an MLAT
request.
But what the government knew or could have predicted
regarding Company 2’s independent behavior in the Civil Lit-
igation is irrelevant to the propriety of the government’s
actions. As the district court explained:
If [Company 2] wishes to make such communica-
tions, it is not in any way prohibited from doing that,
nor is the United States prohibited from asking for
information from a victim of crime just because the
victim is a corporation. Indeed, the United States is
obligated, in enforcing the law, to request such infor-
mation as is reasonably necessary to make it able to
enforce the law.
So long as the government did not improperly collude with
Company 2 to obtain documents from Company 1, the gov-
ernment cannot be said to have used the civil-discovery pro-
cess to subvert the limitations on its criminal-discovery
powers. See In re: Grand Jury Subpoenas, 627 F.3d 1143,
1144 (9th Cir. 2010) (reversing the district court’s quashing
of grand-jury subpoenas because "[n]o collusion between the
civil suitors and the government has been established"). The
district court thus did not abuse its discretion in determining
that the subpoenas passed muster under Rule 17. And Com-
pany 1 has provided no basis for us to craft a new procedural
rule in support of its position.
C. Company 1’s request for an evidentiary hearing
At the very least, Company 1 argues, it should have been
afforded an evidentiary hearing to determine whether the gov-
ernment and Company 2 improperly colluded to bring Com-
pany 1’s documents to the United States. But Company 1 has
already presented to the district court substantial communica-
tions between the government and Company 2, and the court
IN RE: GRAND JURY SUBPOENA 15
has determined that none of these communications show any
improper behavior by either party.
Company 1 obtained these communications through dis-
covery in the Civil Litigation. It did not obtain, however,
communications between Company 2 and the government
that were deemed to be work-product materials. Company 1
argues that these additional communications might show col-
lusion between Company 2 and the government. But Com-
pany 1 has not demonstrated how it could overcome the work-
product protection that the district court has already ruled
applies to these remaining documents.
In sum, we find no clearly erroneous rulings by the district
court in resolving the factual issue regarding the nature of
Company 2’s interaction with the government. Company 1
has thus failed to show that this issue merits any further inves-
tigation or an evidentiary hearing. See In re Grand Jury Sub-
poena, 920 F.2d 235, 241 (4th Cir. 1990) (ruling that there
was no need for an evidentiary hearing, relying on the district
court’s factual determination that there was no basis for
believing that IRS civil agents had access to the materials at
issue).
D. The concern for protecting foreign parties
Another of Company 1’s arguments is that the subpoenas
are unreasonable because allowing the government to obtain
a foreign party’s documents from civil proceedings in the
United States will damage the rights of foreign sovereigns and
foreign parties. According to Company 1, allowing this prac-
tice will force foreign parties to object to civil–discovery
requests and, if such objections are denied, to face sanctions
if the party ultimately refrains from producing documents in
the United States.
But Company 1 fails to recognize that the risk it faces by
engaging in civil litigation in the United States is not unique
16 IN RE: GRAND JURY SUBPOENA
to foreign parties. Rather, materials generated in civil litiga-
tion are generally available for use in future criminal prosecu-
tions. For example, "[u]ncoerced testimony given in a civil
action may provide important and relevant information to a
grand jury investigation." In re Grand Jury Subpoena, 836
F.2d 1468, 1475 (4th Cir. 1988) (holding that a civil protec-
tive order did not prevent a grand jury from obtaining civil
depositions). That Company 1 might face adverse criminal
consequences as a result of its participation in the Civil Liti-
gation is therefore not the type of extraordinary circumstance
that Company 1 claims.
E. The Protective Order does not trump the subpoenas
Company 1 also highlights throughout its brief that the Pro-
tective Order between itself and Company 2 prohibited Com-
pany 2 from disclosing Company 1’s confidential documents
to third parties. But because Company 1 acknowledges that
the subpoenas enabled the government to overcome this limi-
tation, Company 1’s repeated references to the terms of the
Protective Order serve largely as a distraction from the issues
involved in this case. As the district court correctly ruled,
there is a per se rule in the Fourth Circuit favoring the "en-
forcement of a grand jury subpoena despite the existence of
an otherwise valid protective order." Id. at 1477.
Company 2 was also careful to comply with the Protective
Order. Company 1 notes the fact that, prior to receiving the
second subpoena, Company 2 notified the government about
the existence (but not the contents) of a specific confidential
email. In addition, Company 1 alleges that Company 2 alerted
the government in February 2010 to Company 2’s receipt of
Company 1’s confidential documents.
But Company 1 offers no evidence that Company 2 actu-
ally disclosed the contents of protected material in these com-
munications. Company 2 instead waited for the government’s
second subpoena, initially refused to produce the documents
IN RE: GRAND JURY SUBPOENA 17
that the government requested in that subpoena, and gave
Company 1 the opportunity to prevent compliance with the
subpoena by notifying Company 1 of the government’s docu-
ment request.
F. The Department of Justice’s (DOJ’s) internal guide-
lines
Finally, Company 1 claims that the government violated
the DOJ’s internal guidelines by failing to obtain the proper
approval before subpoenaing Company 1’s confidential infor-
mation that was in the control of Company 2’s outside coun-
sel. But Company 2 correctly notes that these guidelines
explicitly state that they "are set forth solely for the purpose
of internal DOJ guidance. They are not intended to, do not,
and may not be relied upon to create any rights, substantive
or procedural, enforceable at law by any party." United States
Attorney Criminal Resource Manual § 9-13.410(G); see also
United States v. Cooks, 589 F.3d 173, 184 (5th Cir. 2009)
("Several sister circuits have held that the Department of Jus-
tice guidelines and policies do not create enforceable rights
for criminal defendants.").
Company 2 also correctly notes that the DOJ guidelines
deal with the disclosure of an attorney’s documents that might
hinder the attorney-client relationship because the documents
"relat[e] to the attorney’s representation of a client." United
States Attorney Criminal Resource Manual § 9-13.410(A).
The subpoenas, however, do not seek documents that deal
with Company 2’s relationship with its own counsel. Rather,
in attempting to obtain documents concerning Company 1’s
internal operations, the government requested documents that
happened to be in the possession of Company 2’s outside
counsel because the Protective Order calls for them to be
shielded from Company 2. But these are not the type of
attorney-client documents that the DOJ’s internal guidelines
intend to protect by recommending heightened internal
18 IN RE: GRAND JURY SUBPOENA
approval. The guidelines thus do not prevent Company 2’s
compliance with the subpoenas.
III. Conclusion
For all of the reasons set forth above, the district court’s
denial of Company 1’s motion to quash is
AFFIRMED.