PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: GRAND JURY SUBPOENA 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

UNDER SEAL,  No. 10-4815

Intervenor-Appellee,

v.

UNDER SEAL,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert E. Payne, Senior District Judge.

(310-MS-115)

Argued: March 22, 2011

Decided: June 15, 2011

Before NIEMEYER and DAVIS, Circuit Judges, and

Ronald Lee GILMAN, Senior Circuit Judge of the United

States Court of Appeals for the Sixth Circuit,

sitting by designation.

Affirmed by published opinion. Senior Judge Gilman wrote

the opinion, in which Judge Niemeyer and Judge Davis

joined.
COUNSEL

ARGUED: Stephen Blake Kinnaird, PAUL HASTINGS

JANOFSKY & WALKER, LLP, Washington, D.C., for

Appellant. Richard Daniel Cooke, OFFICE OF THE

UNITED STATES ATTORNEY, Richmond, Virginia; Stephen Matthew Byers, CROWELL & MORING, LLP, Washington, D.C., for Appellees. ON BRIEF: Dana J. Finberg,

SONNENSCHEIN NATH & ROSENTHAL, LLP, Palo Alto,

California; Jeffrey G. Randall, PAUL HASTINGS JANOFSKY & WALKER, LLP, Palo Alto, California; Rhodes B.

Ritenour, Christina D. Trimmer, LECLAIRRYAN, PC, Richmond, Virginia, for Appellant. Neil H. MacBride, United

States Attorney, Alexandria, Virginia, Brian R. Hood, Assistant United States Attorney, Michael S. Dry, Assistant United

States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Richmond, Virginia, for the United States.

Clifton S. Elgarten, Michael J. Songer, CROWELL & MORING, LLP, Washington, D.C.; Brian C. Riopelle, Rodney A.

Satterwhite, MCGUIREWOODS LLP, Richmond, Virginia,

for Intervenor-Appellee.

OPINION

GILMAN, Senior Circuit Judge:

The under seal appellant (Company 1), a foreign company,

is appealing the district court’s denial of its motion to quash

the government’s grand-jury subpoenas served on the under

seal intervenor (Company 2). The subpoenas seek documents

that Company 1 delivered to Company 2 in response to discovery requests that arose during the course of civil litigation

between the two companies in the United States District Court

for the Eastern District of Virginia. Company 2 has entered

this case as an intervenor in support of the government. For

the reasons set forth below, we affirm the denial of Company

1’s motion to quash the government’s subpoenas. 

2 IN RE: GRAND JURY SUBPOENA
I. Background

A. Factual background

In 2007, the government commenced an investigation of a

former Company 2 employee who began providing consulting

services to Company 1 after his employment with Company

2 ended. The government was looking into the possible theft

of Company 2’s trade secrets. This inquiry, in turn, led the

government to investigate Company 1’s use of the proprietary

information. The employee ended up pleading guilty in

December 2009 to theft of trade secrets, in violation of 18

U.S.C. § 1832, and to obstruction of justice, in violation of 18

U.S.C. § 1512(c). 

Company 2 filed suit against Company 1 in early 2009,

alleging a number of claims based on the same theft-of-tradesecrets allegations (the Civil Litigation). This separate lawsuit

is currently pending before the district court. 

The interests of Company 2 and the government are generally aligned in attempting to halt and to seek redress for Company 1’s alleged misappropriation of Company 2’s trade

secrets. Company 2 and the government have therefore cooperated with each other in a number of ways over the course

of their respective proceedings. In a January 2009 email, an

Assistant United States Attorney informed Company 2’s

counsel that the government wanted to be as helpful as possible in providing Company 2 with information that the government had obtained in the course of its investigation, but that

under the relevant rules and regulations, the government was

not able to "carte blanche . . . turn over everything in [its] possession." In this same email, the government informed Company 2 that the government’s investigation was "dead." The

U.S. Attorney therefore did not see any problem with Company 2 filing its civil complaint. 

Company 2 explains that it had delayed filing its civil complaint in compliance with the government’s request that ComIN RE: GRAND JURY SUBPOENA 3
pany 2 defer to the government’s criminal investigation. After

receiving the government’s email, Company 2 forwarded a

copy of its civil complaint to the government the day before

the complaint was filed. The government also sought Company 2’s assistance and advice in the government’s investigation. In August 2009, the two parties agreed to meet to discuss

the ongoing proceedings. Company 1 claims that with Company 2’s assistance and with the information that Company 2

obtained in the Civil Litigation, the government was able to

revive its investigation of Company 1 in 2010.

In the summer of 2009, Company 2 and Company 1

entered into a protective order (the Protective Order), pursuant to which materials that were designated as "Confidential"

and/or "Confidential—Attorneys’ Eyes Only" "shall not be

used or disclosed for any purposes other than the litigation of

this action." In addition, "Confidential—Attorneys’ Eyes

Only" documents could be disclosed only to outside counsel

and not to the parties themselves. 

The Protective Order also provided for the eventuality that

one of the parties and/or the protected material might be the

subject of a subpoena or other legal process. In such a situation, the subpoenaed party would be required to give prompt

written notice to the party that had produced the subpoenaed

information within 10 business days of the receipt of the subpoena. The subpoenaed party would also be required to

object, to the extent permitted by law, to the production of the

protected material. 

If the party attempting to obtain the protected material were

to "take action" to enforce its subpoena, then the receiving

party would "first respond by setting forth the existence of

this Order and shall give prompt written notice to the producing party of such action . . . within ten (10) business days of

notice of any such action." The party that originally produced

the documents would then be afforded 10 business days following its receipt of notice to attempt to prevent compliance

4 IN RE: GRAND JURY SUBPOENA
with the subpoena. But the Protective Order did not require

any party "to challenge or appeal any order requiring production of confidential information covered by this Order, or to

subject itself to any penalties for noncompliance with any

legal process or order, or to seek any relief from the Court."

Two subpoenas that the government served on Company 2

to obtain documents that Company 1 produced in the Civil

Litigation are at issue. The first subpoena is dated August 14,

2009 and the second one is dated May 21, 2010. 

With regard to the first subpoena, the government asked

Company 2: "Who should I direct the subpoena to, what

address/fax, and how would you like it to read?" Company 2

responded by providing the following wording that was used

by the government in seeking Company 1’s production of

documents to Company 2: "documents produced to [Company

2’s] outside counsel . . . on August 11, 2009 by [Company

1’s] counsel . . . . Documents were produced pursuant to a discovery production between the parties." Company 2 produced

approximately 4,200 pages on August 26, 2009 in response to

this subpoena. 

In September 2009, the government complimented Company 2 on its quick pace of reviewing Company 1’s documents and asked Company 2 the date of its civil-discovery

cutoff. Then, in October 2009, Company 2 informed the government that Company 2 had received a specific Company 1

email that the government had asked about. But Company 2

revealed only that it had received this communication and did

not disclose the message’s contents. 

Company 1 produced more documents to Company 2 in

early 2010, including documents that were designated as

"Confidential" and/or "Confidential—Attorneys’ Eyes Only."

According to Company 1, Company 2 helped revive the government’s investigation by alerting the government to Company 2’s early 2010 receipt of Company 1’s confidential

IN RE: GRAND JURY SUBPOENA 5
documents. The second subpoena, served in May 2010, specifically requested that Company 2 produce Company 1’s

documents that were marked "Confidential" and/or

"Confidential—Attorneys’ Eyes Only." Pursuant to the Protective Order, Company 2’s outside counsel notified Company 1 of the second subpoena. Company 1 responded by

objecting to Company 2’s production to the government of

the "Confidential" and "Confidential—Attorneys’ Eyes Only"

documents, and further objected to the production of any and

all documents that Company 1 had produced in the Civil Litigation. 

Company 2 did not immediately produce any documents in

response to the second subpoena, but rather notified the government that Company 2 was required to object to the disclosure of Company 1’s confidential materials. The government

responded by stating that it was willing to discuss steps to

protect sensitive information. But the government also notified Company 2 that the U.S. Attorney’s Office would file a

Motion to Show Cause if Company 2 failed to produce

responsive documents.

Pursuant to the terms of the Protective Order, Company 2

then informed Company 1 that the government was intending

to "take action" against Company 2 if Company 2 did not produce the subpoenaed documents. Company 2 further notified

Company 1 that if Company 1 did not take action within 10

days to prevent Company 2’s disclosure, then Company 2

would be permitted to fulfill its legal duty to comply with the

government’s subpoena. Although Company 2 did not itself

have access to the "Confidential—Attorneys’ Eyes Only"

documents, it explained to Company 1 that Company 2 could

still comply with the subpoena through its outside counsel,

who did have access to the documents. Company 2 also questioned Company 1’s position that Company 2 should not produce even nonconfidential Company 1 documents. 

6 IN RE: GRAND JURY SUBPOENA
B. Procedural background

On June 21, 2010, Company 1 filed its Motion to Quash the

Subpoenas in the district court. The court stayed Company 2’s

compliance with the subpoenas pending its decision on Company 1’s motion. On July 2, 2010, Company 2 intervened and

filed a Statement of Position as Subpoenaed Party in support

of the government’s ability to obtain the subpoenaed documents. 

In response, Company 1 argued that the government should

not have been allowed to obtain Company 1’s documents

from Company 2 because the government was improperly

involved in the Civil Litigation between the two companies.

Company 1 also argued that allowing Company 2 to give

Company 1’s documents to the government would violate the

Protective Order. 

In its request for relief, Company 1 petitioned the district

court to order the government to return any documents that

Company 2 produced pursuant to the first subpoena and to

preclude the government from utilizing or reviewing such

documents. Company 1 also requested a closed evidentiary

hearing to determine the extent of Company 2’s interaction

with the government. 

The government and Company 2 argued in response that

the government was not involved in the Civil Litigation and

that its interactions with Company 2 were in furtherance of

the government’s independent criminal investigation. Company 2 also argued that the grand jury’s subpoena power

trumps the Civil Litigation’s Protective Order. 

On July 26, 2010, the district court ruled that the government’s interactions with Company 2 were not improper. Company 2 was found to have independently engaged in the Civil

Litigation to further its individual interests. And the government’s communications with Company 2 were determined to

IN RE: GRAND JURY SUBPOENA 7
be part of the government’s attempt to redress Company 2’s

victimization by a former employee who had pleaded guilty

to stealing Company 2’s trade secrets. 

The court also ruled that the subpoenas trumped the Protective Order. Company 1’s motion to quash and its motion to

keep the court’s stays in place pending appeal were subsequently denied. With the stays lifted, Company 2 became free

to comply with the subpoenas. 

Company 1 timely appealed the judgment of the district

court. In its request for relief, Company 1 asks us to reverse

the district court’s decision and to remand the case for entry

of a judgment requiring the government to return and/or

destroy any Company 1 documents that the government has

received. It also seeks to prevent the government from using

those documents against Company 1.

II. Discussion

We review the district court’s denial of a motion to quash

a subpoena under the abuse-of-discretion standard of review.

In re Grand Jury Subpoena John Doe, No. 05GJ1318, 584

F.3d 175, 182 (4th Cir. 2009). Under this standard, the district

court’s rulings of law are reviewed de novo and its factual

findings are reviewed under the clear-error standard. Id.

Rule 17(c)(2) of the Federal Rules of Criminal Procedure

provides that the district court "may quash or modify [a] subpoena if compliance would be unreasonable or oppressive."

The grand jury’s "investigative powers are necessarily broad"

because it serves the important dual roles of "determining if

there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal

prosecutions." Branzburg v. Hayes, 408 U.S. 665, 686-88

(1972). "Thus, in the context of a grand jury subpoena, the

longstanding principle that the public has a right to each person’s evidence is particularly strong. Absent a compelling

8 IN RE: GRAND JURY SUBPOENA
reason, a court may not interfere with the grand jury process."

In re Grand Jury Proceedings #5 Empanelled January 28,

2004, 401 F.3d 247, 250 (4th Cir. 2005) (citation omitted).

And a party attempting to quash a subpoena bears the burden

of rebutting the "presumption of regularity" that attaches to a

grand jury’s proceedings. See United States v. Brothers Const.

Co. of Ohio, 219 F.3d 300, 314 (4th Cir. 2000). 

On the other hand, the grand jury’s investigatory powers

are not unlimited, and "what is reasonable depends on the

context." United States v. R. Enterprises, Inc., 498 U.S. 292,

299 (1991) (internal quotation marks omitted). A subpoena

may be unreasonable or oppressive under Rule 17(c) if it is

"irrelevant, abusive or harassing, overly vague, or excessively

broad," or "if compliance is likely to entail consequences

more serious than even severe inconveniences occasioned by

irrelevant or overbroad requests for records." In re Grand

Jury, John Doe No. G.J. 2005-2, 478 F.3d 581, 585 (4th Cir.

2007) (citations and internal quotation marks omitted). 

A. Rule 17 of the Federal Rules of Criminal Procedure

and the Mutual Legal Assistance Treaty (MLAT) 

Company 1 argues that the government subverted the limitations on obtaining documents from foreign parties that are

imposed by Rule 17 of the Federal Rules of Criminal Procedure and the MLAT between the United States and Company

1’s home country. Rule 17(e)(2), in combination with 28

U.S.C. § 1783, provides that a grand-jury subpoena may be

served in the United States or, if the subpoenaed party is a

United States national or resident, in a foreign country. Company 1 correctly points out that because it is neither a United

States national nor a resident, Rule 17(e)(2) prevents the government from serving a grand-jury subpoena on Company 1

in a foreign country. See United States v. Moussaoui, 382

F.3d 453, 462-63 (4th Cir. 2004) (noting the "well established

and undisputed principle that the process power of the district

court does not extend to foreign nationals abroad"). 

IN RE: GRAND JURY SUBPOENA 9
Furthermore, Company 1 contends, the use of letters rogatory—a procedure whereby a court within the United States

can make a formal request to a foreign court to serve a subpoena—is the traditional method for obtaining discovery from

a foreign party. See 22 C.F.R. § 92.54. Because the power of

letters rogatory may be limited by foreign countries, however,

this mechanism does not allow for the same breadth and ease

of discovery as do the Federal Rules of Criminal Procedure.

The United States has negotiated MLATs with various

countries to facilitate legal proceedings involving foreign parties without having to resort to letters rogatory. "As their

names suggest, these treaties provide for bilateral, mutual

assistance in the gathering of legal evidence for use by the

requesting state in criminal investigations and proceedings."

In re Premises Located at 840 140th Ave. NE, Bellevue,

Wash., 634 F.3d 557, 564 (9th Cir. 2011). 

1. The MLAT

Company 1 argues that the MLAT between the United

States and Company 1’s home country replaces the use of letters rogatory as the exclusive means for the government to

obtain criminal discovery from a party located in that country.

But this argument is without force in the present circumstances because the government did not obtain any discovery

from Company 1. Rather, the government served the subpoenas on Company 2, seeking documents that were brought into

the United States through the Civil Litigation.

Moreover, the MLAT specifically provides that "[t]he Contracting Parties may also provide assistance pursuant to any

bilateral agreement, arrangement, or practice which may be

applicable." (Citation omitted.) In United States v. Rommy,

506 F.3d 108, 129 (2d Cir. 2007), the Second Circuit noted

that similar treaty language in the MLAT with the Netherlands, "[b]y its express terms, . . . has no application to evidence obtained outside the MLAT process." We agree, and

10 IN RE: GRAND JURY SUBPOENA
therefore conclude that the MLAT is not the exclusive means

for the government to obtain documents from a party located

in Company 1’s home country in aid of the government’s

criminal investigation. 

Company 1 has also failed to show that the MLAT gives

rise to a private right of action that can be used to restrict the

government’s conduct. The MLAT explicitly states that it "is

intended solely for mutual legal assistance between the Contracting Parties. The provisions of this Treaty shall not give

rise to a right on the part of any private person to obtain, suppress, or exclude any evidence or to impede the execution of

a request." (Citation omitted.) See also Rommy, 506 F.3d at

129 (determining that the defendant had failed to show "that

the treaty creates any judicially enforceable individual right

that could be implicated by the government’s conduct here").

2. Rule 17 of the Federal Rules of Criminal Procedure

Company 1 next contends that "it is unreasonable for the

Government to convert civil discovery mechanisms into a

means to circumvent the restrictions on grand jury subpoena

powers and the MLAT." It thus claims that the subpoenas are

unreasonable under Rule 17(c). Alternatively, Company 1

asks us to create a new procedural rule under our supervisory

authority that would prohibit the government from obtaining

Company 1’s documents in this circuitous manner.

We agree with the general principle that "civil discovery

may not be used to subvert limitations on discovery in criminal cases, either by the government or by private parties."

McSurely v. McClellan, 426 F.2d 664, 671-72 (D.C. Cir.

1970) (citing United States v. Parrott, 248 F. Supp. 196, 199-

-202 (D.D.C. 1965) ("The Court holds that the Government

may not bring a parallel civil proceeding and avail itself of

civil discovery devices to obtain evidence for subsequent

criminal prosecution.")). But, as explained above, the government here did not bring a parallel civil proceeding against

IN RE: GRAND JURY SUBPOENA 11
Company 1. Rather, the government subpoenaed documents

that were already located in the United States pursuant to discovery initiated by Company 2. 

The Ninth Circuit recently decided a factually similar case.

There, as in the present case, the government subpoenaed

documents that originally had been located outside of the

United States but were produced in this country as part of separate civil-discovery proceedings with a private plaintiff. See

In re: Grand Jury Subpoenas, 627 F.3d 1143, 1144 (9th Cir.

2010). Company 1 relied on the district court’s decision in

that case, which, in quashing the subpoenas, allowed the government to view, but not copy, the subpoenaed documents.

See In Re TFT-LCD (Flat Panel) Antitrust Litig., No. M-07-

1827-SI (N.D. Cal. Mar. 29, 2010). Due to the absence of any

precedent on point, however, the district court in the Flat

Panel case explicitly sought appellate guidance. 

The Ninth Circuit subsequently reversed the lower court’s

decision to quash the government’s subpoenas. As the Ninth

Circuit explained, "[b]y a chance of litigation, the documents

have been moved from outside the grasp of the grand jury to

within its grasp. No authority forbids the government from

closing its grip on what lies within the jurisdiction of the

grand jury." In re: Grand Jury Subpoenas, 627 F.3d at 1144.

The present case is factually similar to the scenario that the

Ninth Circuit dealt with in In re: Grand Jury Subpoenas, and

we believe that the result should be the same. 

B. Allegations of collusion between Company 2 and the

government

Company 1 argues for a different result here because the

government allegedly subverted its ordinary criminalsubpoena power by colluding with Company 2 to obtain

Company 1’s documents, which the government could not

have obtained directly from Company 1. According to Company 1, the government "had a role in helping cause the docu12 IN RE: GRAND JURY SUBPOENA
ments, the foreign-based documents, to be brought . . . to the

United States." 

Had the government in the present case directed Company

2 to request documents from Company 1 in the Civil Litigation so that the government could then, in turn, subpoena

those documents from Company 2, Company 1 would have a

basis for arguing that the government had used civil discovery

"to subvert limitations on discovery in criminal cases."

McSurely, 426 F.2d at 671-72. But the district court expressly

found that there was no evidence that Company 2 engaged in

discovery in the Civil Litigation at the behest of the government. Nor was there "any evidence that the United States

played any role in securing the documents of [Company 1] to

be produced to [Company 2] in the civil litigation." 

Company 2’s substantial interaction with the government,

as detailed above, including Company 2’s assistance to the

government with the subpoenas and Company 2’s updates

regarding its civil-discovery progress, do not show that the

government was directing Company 2’s civil discovery.

Rather, the cooperation between the parties reflects the fact

that the government and Company 2 were assisting one

another in advancing their independent but shared interests.

Company 2, after all, has its own interest in redressing,

through the civil-litigation process, the injuries that it alleges

were caused by Company 1. We therefore see no basis to hold

the district court’s factual findings clearly erroneous. 

Company 1 attempts to counter the force of these findings

by arguing that 

whether the United States gave specific direction to

[Company 2] is a red herring. The Government did

not need to do so to accomplish its purposes because

it . . . knew that [Company 2’s] civil discovery would

reach documents that the Government could not

IN RE: GRAND JURY SUBPOENA 13
obtain by a grand jury subpoena . . . or by an MLAT

request. 

But what the government knew or could have predicted

regarding Company 2’s independent behavior in the Civil Litigation is irrelevant to the propriety of the government’s

actions. As the district court explained:

If [Company 2] wishes to make such communications, it is not in any way prohibited from doing that,

nor is the United States prohibited from asking for

information from a victim of crime just because the

victim is a corporation. Indeed, the United States is

obligated, in enforcing the law, to request such information as is reasonably necessary to make it able to

enforce the law. 

So long as the government did not improperly collude with

Company 2 to obtain documents from Company 1, the government cannot be said to have used the civil-discovery process to subvert the limitations on its criminal-discovery

powers. See In re: Grand Jury Subpoenas, 627 F.3d 1143,

1144 (9th Cir. 2010) (reversing the district court’s quashing

of grand-jury subpoenas because "[n]o collusion between the

civil suitors and the government has been established"). The

district court thus did not abuse its discretion in determining

that the subpoenas passed muster under Rule 17. And Company 1 has provided no basis for us to craft a new procedural

rule in support of its position. 

C. Company 1’s request for an evidentiary hearing

At the very least, Company 1 argues, it should have been

afforded an evidentiary hearing to determine whether the government and Company 2 improperly colluded to bring Company 1’s documents to the United States. But Company 1 has

already presented to the district court substantial communications between the government and Company 2, and the court

14 IN RE: GRAND JURY SUBPOENA
has determined that none of these communications show any

improper behavior by either party. 

Company 1 obtained these communications through discovery in the Civil Litigation. It did not obtain, however,

communications between Company 2 and the government

that were deemed to be work-product materials. Company 1

argues that these additional communications might show collusion between Company 2 and the government. But Company 1 has not demonstrated how it could overcome the workproduct protection that the district court has already ruled

applies to these remaining documents. 

In sum, we find no clearly erroneous rulings by the district

court in resolving the factual issue regarding the nature of

Company 2’s interaction with the government. Company 1

has thus failed to show that this issue merits any further investigation or an evidentiary hearing. See In re Grand Jury Subpoena, 920 F.2d 235, 241 (4th Cir. 1990) (ruling that there

was no need for an evidentiary hearing, relying on the district

court’s factual determination that there was no basis for

believing that IRS civil agents had access to the materials at

issue). 

D. The concern for protecting foreign parties

Another of Company 1’s arguments is that the subpoenas

are unreasonable because allowing the government to obtain

a foreign party’s documents from civil proceedings in the

United States will damage the rights of foreign sovereigns and

foreign parties. According to Company 1, allowing this practice will force foreign parties to object to civil–discovery

requests and, if such objections are denied, to face sanctions

if the party ultimately refrains from producing documents in

the United States. 

But Company 1 fails to recognize that the risk it faces by

engaging in civil litigation in the United States is not unique

IN RE: GRAND JURY SUBPOENA 15
to foreign parties. Rather, materials generated in civil litigation are generally available for use in future criminal prosecutions. For example, "[u]ncoerced testimony given in a civil

action may provide important and relevant information to a

grand jury investigation." In re Grand Jury Subpoena, 836

F.2d 1468, 1475 (4th Cir. 1988) (holding that a civil protective order did not prevent a grand jury from obtaining civil

depositions). That Company 1 might face adverse criminal

consequences as a result of its participation in the Civil Litigation is therefore not the type of extraordinary circumstance

that Company 1 claims. 

E. The Protective Order does not trump the subpoenas

Company 1 also highlights throughout its brief that the Protective Order between itself and Company 2 prohibited Company 2 from disclosing Company 1’s confidential documents

to third parties. But because Company 1 acknowledges that

the subpoenas enabled the government to overcome this limitation, Company 1’s repeated references to the terms of the

Protective Order serve largely as a distraction from the issues

involved in this case. As the district court correctly ruled,

there is a per se rule in the Fourth Circuit favoring the "enforcement of a grand jury subpoena despite the existence of

an otherwise valid protective order." Id. at 1477.

Company 2 was also careful to comply with the Protective

Order. Company 1 notes the fact that, prior to receiving the

second subpoena, Company 2 notified the government about

the existence (but not the contents) of a specific confidential

email. In addition, Company 1 alleges that Company 2 alerted

the government in February 2010 to Company 2’s receipt of

Company 1’s confidential documents. 

But Company 1 offers no evidence that Company 2 actually disclosed the contents of protected material in these communications. Company 2 instead waited for the government’s

second subpoena, initially refused to produce the documents

16 IN RE: GRAND JURY SUBPOENA
that the government requested in that subpoena, and gave

Company 1 the opportunity to prevent compliance with the

subpoena by notifying Company 1 of the government’s document request. 

F. The Department of Justice’s (DOJ’s) internal guidelines

Finally, Company 1 claims that the government violated

the DOJ’s internal guidelines by failing to obtain the proper

approval before subpoenaing Company 1’s confidential information that was in the control of Company 2’s outside counsel. But Company 2 correctly notes that these guidelines

explicitly state that they "are set forth solely for the purpose

of internal DOJ guidance. They are not intended to, do not,

and may not be relied upon to create any rights, substantive

or procedural, enforceable at law by any party." United States

Attorney Criminal Resource Manual § 9-13.410(G); see also

United States v. Cooks, 589 F.3d 173, 184 (5th Cir. 2009)

("Several sister circuits have held that the Department of Justice guidelines and policies do not create enforceable rights

for criminal defendants."). 

Company 2 also correctly notes that the DOJ guidelines

deal with the disclosure of an attorney’s documents that might

hinder the attorney-client relationship because the documents

"relat[e] to the attorney’s representation of a client." United

States Attorney Criminal Resource Manual § 9-13.410(A).

The subpoenas, however, do not seek documents that deal

with Company 2’s relationship with its own counsel. Rather,

in attempting to obtain documents concerning Company 1’s

internal operations, the government requested documents that

happened to be in the possession of Company 2’s outside

counsel because the Protective Order calls for them to be

shielded from Company 2. But these are not the type of

attorney-client documents that the DOJ’s internal guidelines

intend to protect by recommending heightened internal

IN RE: GRAND JURY SUBPOENA 17
approval. The guidelines thus do not prevent Company 2’s

compliance with the subpoenas. 

III. Conclusion

For all of the reasons set forth above, the district court’s

denial of Company 1’s motion to quash is

AFFIRMED.

18 IN RE: GRAND JURY SUBPOENA