Grand Jury Subpoena, In re

• Decision Date: 05 February 1998
• Docket Number: No. 97-2335,97-2335
• Citation: 138 F.3d 442
• Parties: IN RE GRAND JURY SUBPOENA (Served Upon Stephen A. Roach, Esquire). An Anonymous Police Officer, Intervenor, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 442

138 F.3d 442

40 Fed.R.Serv.3d 145

IN RE GRAND JURY SUBPOENA (Served Upon Stephen A. Roach Esquire). An Anonymous Police Officer Intervenor, Appellant.

No. 97-2335.

United States Court of Appeals First Circuit.

Heard Feb. 5, 1998.

Decided March 16, 1998.

Thomas M. Hoopes, with whom Hoopes and Cronin and Dana A. Curhan, Boston, MA, were on brief, for intervenor.

Louis E. Peraertz, Attorney, U.S. Dep't of Justice, with whom Bill Lann Lee, Acting Assistant Attorney General, Dennis J. Dimsey, Attorney, U.S. Dep't of Justice, Donald K. Stern, United States Attorney, and S. Theodore Merritt, Assistant United States Attorney, Washington, DC, were on brief, for respondent.

Before SELYA, BOUDIN and LYNCH, Circuit Judges.

SELYA, Circuit Judge.

This appeal requires us to develop a mechanism for modulating the tension that can develop between a protective order in a civil case, see Fed.R.Civ.P. 26(c), and a grand jury subpoena seeking evidence that falls within the protective order's compass. The question arises here on appeal from the district court's refusal to quash a grand jury's subpoena duces tecum that demands the production of materials covered, at least in part, by a previously issued civil protective order. The question presented is new to us, and the decisions elsewhere divide over the correct approach. After pondering the problem, we reject the district court's choice of an analytic method, but nevertheless uphold the subpoena.

I. BACKGROUND

Because of the procedural posture in which this appeal arises, the facts before us afford little expository nourishment. We nonetheless offer the following informational crudite.

On an undetermined date, Michael Cox, an undercover Boston police officer, was, it is said, beaten brutally by a band of uniformed police officers. To redeem this alleged wrong, Cox sued the City of Boston and several individual officers, including the intervenor in this action, whom we shall call Joe Doakes. ¹ In short order, the City filed a motion--later joined by Doakes--for a protective order pursuant to Fed.R.Civ.P. 26(c). The court (Young, U.S.D.J.) granted this request and issued a modifiable order that protected confidential information, defined as including "[a]ny and all Internal Affairs Division [ (IAD) ] records," as well as exhibits or evidence that incorporate any such confidential information. Doakes thereafter gave deposition testimony on three separate occasions between December 29, 1996, and April 7, 1997.

In due season, a federal grand jury initiated an investigation into the attack. On April 4, 1997, the United States moved to intervene in the civil case and to stay discovery. Judge Young granted this motion and, with the consent of all parties, administratively closed the case "until April 1, 1998 or [until] any investigation by the [United States] is completed, whichever comes first."

On September 30, 1997, the grand jury summoned Cox's attorney, Stephen A. Roach. The subpoena duces tecum directed Roach to produce "[a]ll volumes of the deposition, including exhibits, of [Joe Doakes] taken in Michael Cox v. City of Boston, et al." Roach filed a motion requesting the district court to rule whether his compliance with the subpoena would violate the protective order. Citing the administrative closure of the civil case file, Judge Young declined to hear the motion and directed Roach to the district court's emergency calendar. Doakes moved to intervene in the proceedings and the duty judge (Gertner, U.S.D.J.) heard Roach's motion for instructions as well as Doakes's motion to quash the subpoena duces tecum.

In pressing the motion to quash, Doakes's counsel--who had not represented him at the start of the civil case--argued that the protective order safeguarded Doakes's entire deposition (and the exhibits associated therewith) because he had been questioned extensively about his statement to the IAD. After some backing and filling, not now germane, Judge Gertner denied the motion to quash. In fashioning her decision, the judge adopted the Second Circuit's balancing test, see Martindell v. International Tel. & Tel. Corp., 594 F.2d 291 (2d Cir.1979), and determined that, all things considered, the interests of the criminal investigation in this instance outweighed the movant's interest in maintaining the confidentiality of the record (especially since Doakes had demonstrated no prior reliance on the protective order).

II. ANALYSIS

We review a district court's fact-based decisions regarding quashal of grand jury subpoenas for abuse of discretion. ² See In re Grand Jury Matters, 751 F.2d 13, 16 (1st Cir.1984). Withal, a court that predicates a discretionary ruling on an erroneous view of the law inevitably abuses its discretion. See Koon v. United States, 518 U.S. 81, 98-100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996); United States v. Snyder, 136 F.3d 65, 70 (1st Cir.1998). Thus, we review de novo whether the court below employed the proper legal formulation in making the decision from which Doakes appeals. See Snyder, 136 F.3d at 70; Soto v. United States, 11 F.3d 15, 17 (1st Cir.1993).

A. Extant Standards.

The Second Circuit's Martindell test strives to balance society's interest in obtaining grand jury evidence for law enforcement purposes with its interest in "the just, speedy, and inexpensive determination of civil disputes ... by encouraging full disclosure of all evidence that might conceivably be relevant." 594 F.2d at 295 (citation and internal quotation marks omitted). In constructing this test, the Martindell court exalted civil litigation over criminal prosecution on the theory that a deponent's reliance on a protective order merits respect, and the government's evidence-gathering powers are so sweeping that it ordinarily will be "unnecessary" for prosecutors to go behind civil protective orders. Id. at 296. In deference to these considerations, the court declared that, absent a showing of "improvidence in the grant of a Rule 26(c) protective order or some extraordinary circumstance or compelling need ... a witness should be entitled to rely upon the enforceability of a protective order against any third parties, including the Government." Id.

The Second Circuit's rule--positing a presumption in favor of a protective order when such an order clashes with a grand jury subpoena--has received a cool reception elsewhere. The Fourth Circuit declined to follow Martindell, holding instead that "the existence of an otherwise valid protective order [is] not sufficient grounds to quash the subpoena duces tecum issued by the ... grand jury." In re Grand Jury Subpoena, 836 F.2d 1468, 1478 (4th Cir.1988). The court adopted this per se rule after weighing "the authority of a grand jury to gather evidence in a criminal investigation; the deponents' right against self-incrimination; and the goals of liberal discovery and efficient dispute resolution in civil proceedings." Id. at 1471. Calibrating these scales, the court concluded that society's interest in grand jury access to all relevant information overrode any countervailing interest in civil discovery. See id. at 1474-75. Two other circuits have joined the fray, both siding with the Fourth Circuit and advocating a per se rule that invariably prefers grand jury subpoenas over civil protective orders. See In re Grand Jury Subpoena, 62 F.3d 1222, 1224 (9th Cir.1995); In re Grand Jury Proceedings, 995 F.2d 1013, 1020 (11th Cir.1993).

We are uneasy with both of these approaches. Turning first to Martindell, we believe that its creation of a presumption favoring the sanctity of civil protective orders tilts the scales in exactly the wrong direction. By establishing a presumption in favor of civil protective orders, Martindell fails to pay proper respect to what we deem an issue of great importance: society's profound interest in the thorough investigation of potential criminal wrongdoing. See Nixon v. Fitzgerald, 457 U.S. 731, 754 n. 37, 102 S.Ct. 2690, 2703 n. 37, 73 L.Ed.2d 349 (1982) (explaining "that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions"). Furthermore, the Martindell rule suffers from practical infirmities: the principles by which one court should adjudge a protective order issued by another court "improvidently granted" are difficult to standardize, and the circumstances under which a United States Attorney might demonstrate a "compelling need" are opaque. In short, the Martindell rule is ill conceived as a matter of policy.

The Fourth Circuit's per se rule manifests a different vice: inflexibility. Although the per se rule properly privileges the public's interest in law enforcement over its interest in the resolution of civil controversies, it does so without regard to idiosyncratic circumstances. In other words, this approach puts priorities in proper perspective, but overlooks that the balance nonetheless is variable and that the confluence of the relevant interests--generally, those of society at large and of the parties who are seeking to keep a civil protective order inviolate--occasionally may militate in favor of blunting a grand jury's subpoena. Because this per se rule obviates all analysis, it will trench upon legitimate concerns when (even if rarely) a...