In re Grand Jury Subpoena, Dated April 18, 2003

• Decision Date: 02 September 2004
• Docket Number: No. 04-10097.,04-10097.
• Citation: 383 F.3d 905
• Parties: In re GRAND JURY SUBPOENA, Dated April 18, 2003, John Doe, Appellant, v. United States of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

383 F.3d 905

In re GRAND JURY SUBPOENA, Dated April 18, 2003,

John Doe, Appellant, v. United States of America, Appellee.

No. 04-10097.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 17, 2004.

Filed September 2, 2004.

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Catherine Morris, Orrick, Herrington & Sutcliffe LLP, San Francisco, CA, for the appellant.

Andrea Limmer, U.S. Department of Justice, Appellate Section, Antitrust Division, Washington, DC, for appellee.

Appeal from the United States District Court for the Northern District of California, Susan Yvonne Illston, District Judge, Presiding. D.C. No. CR-03-00294-MISC/SI.

Before HUG, JR., CANBY, JR., and TALLMAN, Circuit Judges.

CANBY, Circuit Judge.

Appellant John Doe was held in contempt by the district court and he appeals, challenging the district court's denial of his motion to quash a subpoena duces tecum. The government served Doe with the subpoena in conjunction with an antitrust investigation into price fixing in the Dynamic Random Access Memory chip market. We conclude that, because of the breadth of the subpoena and the government's limited knowledge of the documents sought, Doe's production of the documents would have a testimonial aspect protected by the Fifth Amendment right against self-incrimination. We therefore reverse and remand.

Factual Background

This appeal presents a challenge to one of several subpoenas issued in connection with the government's investigation into antitrust violations in the Dynamic Random Access Memory (DRAM) semiconductor memory chip industry. On June 17, 2002, a grand jury sitting in the Northern District of California issued subpoenas duces tecum to all the major worldwide DRAM manufacturers, including Doe's former employer (the "Corporation"). The subpoena served on the Corporation covered the period from January 1, 1998, through the date of the subpoena and requested, among other things, all documents relating to contacts and communications among competitors regarding the sale of DRAM. The subpoena also asked the Corporation for the names of all its current and former employees who had any responsibility for pricing DRAM, as well as the calendars, appointment books, telephone directories, and travel and entertainment expense records on file for those employees.

The Corporation identified Doe as an employee who was responsible for pricing DRAM. Doe worked for the Corporation from 1991 through 1998. The documents produced by the Corporation in response to the subpoena did not reveal any calendars, appointment books, notebooks, address books, or business diaries for Doe. These types of materials were found in the employee records of other DRAM salesmen, including Doe's successor.

During the government's investigation, a cooperating witness from another DRAM manufacturer provided detailed information regarding meetings and telephone conversations he had with Doe, in which they discussed the price at which the Corporation and its competitors would sell DRAM to computer manufacturers. After the government obtained this information, FBI agents interviewed Doe at his home in April 2003. During the interview, Doe indicated that he had shared DRAM pricing information with competitors, including the government's cooperating witness. Doe further stated that he had memorialized these conversations in e-mails to his supervisors. Doe stated, however, that he did not believe he had any records, notes, or documents related to the government's investigation because he had left such records at the Corporation. At the end of the interview, the agents served Doe with a subpoena duces tecum, which is the subject of this appeal. The subpoena commanded Doe to appear and testify before the grand jury and bring with him all documents in his possession "relating to the production or sale of Dynamic Random Access Memory (`DRAM') components, including but not limited to, handwritten notes, calendars, diaries, daybooks, appointment calendars, or notepads, or any similar documents."

Following this interview, the government served the Corporation with another subpoena duces tecum, which was identical in all respects to the June 17, 2002, subpoena, except that it requested documents from the period of January 1, 1996 through December 31, 1997. This subpoena produced a few documents that Doe had created in his employment at the Corporation, but nowhere near the volume that had been created by other employees.

Doe, claiming a Fifth Amendment privilege against self-incrimination, informed the government that he would not testify without immunity and would not produce the subpoenaed documents. The government postponed indefinitely Doe's appearance before the grand jury, but did not relieve him of his obligation to produce the documents described in the subpoena duces tecum, nor did the government offer Doe immunity under 18 U.S.C. § 6003. Instead, the government informed counsel for the Corporation that Doe might have documents responsive to the subpoenas served on the Corporation. The Corporation requested from Doe "any company records or property" that may be in Doe's possession and covered by the Proprietary Information Agreement or the Exit Interview statement that Doe had signed. Without admitting that he had any company records in his possession, Doe declined to produce any such documents to the Corporation.

Doe then moved to quash the subpoena that had been served on him, claiming that the act of producing the documents responsive to the subpoena would violate his Fifth Amendment rights. The district court denied the motion to quash, finding that the existence of Doe's documents was a "foregone conclusion," and therefore the act of producing the documents was not testimonial in nature. Doe again refused to turn over any documents and was held in contempt by the district court pursuant to a Stipulation and Order of Contempt. Doe timely appealed, and enforcement of the contempt order has been stayed pending appeal.

Jurisdiction and Standard of Review

Because Doe has been held in contempt, we have jurisdiction over his appeal of the contempt order and the denial of his motion to quash the subpoena. See In re Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d 847, 852-53 (9th Cir.1991). We review for an abuse of discretion the denial of a motion to quash a subpoena. In re Grand Jury Subpoena (Mark Torf/Torf Envtl. Mgmt.), 357 F.3d 900, 906 (2004) (amended opinion). "A district court abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Id. (quoting Gerling Global Reinsurance Corp. v. Low, 240 F.3d 739, 743 (9th Cir.2001)).

The Fifth Amendment and Compelled Document Production

The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. CONST. amend. V. The Fifth Amendment protects a person solely against compelled self-incrimination. See United States v. Doe, 465 U.S. 605, 610, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984); Fisher v. United States, 425 U.S. 391, 401, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Where the preparation of business records is voluntary, there is no compulsion present, and consequently the contents of those records are not privileged by the Fifth Amendment. See Doe, 465 U.S. at 610, 104 S.Ct. 1237. It is not contested that the documents in Doe's possession were created voluntarily during the course of his employment with the Corporation. The contents of those documents are therefore not protected by the Fifth Amendment.

Doe's claim of privilege is directed, however, not to the documents themselves but to the act of producing the documents.¹ A witness' production of documents in response to a subpoena may have incriminating testimonial aspects. See United States v. Hubbell, 530 U.S. 27, 36, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000) (Hubbell II); Fisher, 425 U.S. at 410, 96 S.Ct. 1569. By producing documents in compliance with a subpoena, the witness admits that the documents exist, are in his possession or control, and are authentic. See Hubbell II, 530 U.S. at 36, 120 S.Ct. 2037. These types of admissions implicitly communicate statements of fact that may lead to incriminating evidence. See id. at 36, 38, 120 S.Ct. 2037. Whether the act of production has a testimonial aspect sufficient to attract Fifth Amendment protection is a fact-intensive inquiry. See Fisher, 425 U.S. at 410, 96 S.Ct. 1569 (stating the resolution of whether documents are testimonial "depend[s] on the facts and circumstances of particular cases or classes thereof").

In this case, the district court found that Doe's act of producing documents responsive to the government's subpoena "will have no adverse effect on movant as the government has adequately demonstrated its prior, extensive knowledge of the facts and potentially incriminating evidence associated with [Doe's] involvement in price-fixing activities currently under investigation." We conclude that the district court erred in determining that the government had established that the existence, possession, and authenticity of the documents sought was a foregone conclusion and in refusing to examine the documents in camera to determine whether Doe's act of producing them would have incriminating aspects.

1. Existence and Possession of the Documents

When the "existence and location" of the documents under subpoena are a "foregone conclusion" and the witness "adds little or nothing to the sum total of the Government's information by conceding that he in fact has the[documents]," then no Fifth Amendment right is touched because the "question is not of testimony but of surrender." Fisher, 425 U.S. at 411, 96 S.Ct. 1569 (quoting In re Harris, 221 U.S. 274, 279, 31 S.Ct. 557, 55 L.Ed. 732 (1911)). The government "bears the burdens of production and proof on the questions of ... possession[ ] and existence of the summoned documents." In re...