We’ve blogged about legal translations of foreign-language evidence and the Second Circuit Court’s view on this issue. On the other hand, the Ninth Circuit generally holds that subpoenas should prevail over protective orders as a matter of course, reasoning that history, law, and policy require courts to accord grand juries special solicitude. This is the route that the Department of Justice then took following the above cited decision.
The DOJ first served grand jury subpoenas to all US law firms in custody of the foreign documents. Naturally, the firms moved to quash the subpoenas, a motion that was subsequently granted. In the ruling, the judge noted that although subpoenas typically take precedence over civil protective orders, case law ‘did not address the grand jury’s authority to subpoena foreign evidence that would otherwise be outside its subpoena power’.
On appeal, however, the Ninth Circuit reversed, holding that ‘no authority forbids the government from closing its grip on what lies within the jurisdiction of the grand jury’. Further, as there was no collusion between the civil suitors and the governments, there was no reasoning to deny the grand jury its special solicitude.