In re: Optical Disk Drive Antirust Litig.

A document reviewed by a grand jury is not protected by Federal Rule of Criminal Procedure 6(e) and may be released pursuant to a subpoena.

Dell Inc., plaintiffs in a subsequent civil suit, subpoenaed the Department of Justice to turn over secret recordings, under a protective order, that were made two months before the preceding criminal suit. John Doe intervened with a motion to quash the subpoena pursuant to Federal Rule of Criminal Procedure 6(e). Doe also alleged a violation of the “effects test” which “determines whether disclosure of a particular requested item will reveal some secret aspect of the inner workings of the grand jury.” Lastly, Doe alleged that he would suffer irreparable harm if the recordings were disclosed. The district court denied Doe’s motion because the record did not support a conclusion that the recordings in dispute constitute “matters occurring before the grand jury” within the meaning Rule 6(e). The district court clarified that although one could reasonably assume that the grand jury reviewed some or all of the recordings, since the subpoena did not seek to discover what the grand jury did or did not have before it, the “inner workings” of the grand jury are not being exposed. Further, the district court held that the “effects test” is not a workable defense since this circuit never adopted that test. Finally, Doe did not provide any evidence of the irreparable harm he allegedly would suffer. Doe appealed, alleging abuse of discretion, and the Ninth Circuit affirmed the district court’s denial of Doe’s motion to quash the subpoena. The panel reiterated that the subpoena sought the recording itself, rather than disclosure of what took place in the grand jury’s deliberation. Since the recording was not protected by Rule 6(e), the panel refused to overturn the district court on an abuse of discretion because the court was not “clearly erroneous or contrary to law.” AFFIRMED.