Civil Discovery v. Grand Juries

It might be wonderful to learn the opposing party was subject to an investigation that resulted in criminal grand jury proceedings.  Where there is smoke, there is often fire.  If the opposing party was the subject of a grand jury investigation, what can you get about it through civil discovery?

This issue arose in FTC v. AMG Servs. where the FTC sent a request for production seeking documentation “regarding grand jury proceedings and related litigation.”[1]  This implicated Rule of Criminal Procedure that stated “‘a matter occurring before the grand jury’ may not be disclosed by grand jurors, interpreters, court reporters, those who record or transcribe testimony, an attorney for the government, personnel who assist the attorney for the government, and those who receive grand jury material pursuant to certain statutory authorizations.”  However, there is a way to partially get around this rule.

Where, as here, a party to a civil action seeks discovery related to grand-jury proceedings, courts in the Ninth Circuit apply a “purpose” test, which examines the reason for the document request.  If documents are “sought for their own sake,” the discovery request accords with Rule 6(e). If, however, documents are sought “learn what happened before the grand jury,” the discovery request violates Rule 6(e).

[T]he discoverability of grand-jury documents resembles the attorney-client privilege: both protect communications (i.e., “what is said or takes place”), but not the underlying facts.”  “A fact is one thing and a communication concerning that fact is an entirely different thing.”[2]

Applied to the request in dispute, it was too broad.  “A fair reading of the Commission’s request indicates that the Commission seeks documents because they were submitted to a grand jury.”  An analogy helped frame why the request was too broad.  “If, by analogy, the Commission requested documents because they were submitted to (or relied upon by) an attorney, there would be no doubt that the request would violate the work-product doctrine or the attorney-client privilege.”  By contrast, documents with relevant facts that had been submitted to the grand jury would not be privileged merely because they were submitted to a grand jury.

[1] No. 2:12-cv-536, 2015 U.S. Dist. LEXIS 5620, 2015 WL 176417 (D. Nev. Jan. 14, 2015).

[2] LightGuard Sys., Inc. v. Spot Devices, Inc., 281 F.R.D. 593, 598 (D. Nev. 2012).