UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION 

DASSAULT SYSTEMES, S.A., 

Plaintiff, 

Case No. 09-10534

v. Hon. Lawrence P. Zatkoff

KEITH CHILDRESS

d/b/a PRACTICAL CATIA TRAINING, 

Defendant. 

 / 

OPINION AND ORDER

AT A SESSION of said Court, held in the United States Courthouse,

in the City of Port Huron, State of Michigan, on July 31, 2012

PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter is before the Court on Defendant’s Emergency Motion to Quash Plaintiff’s Third

Party Subpoenas [dkt 103]. The parties have fully briefed the motion. The Court finds that the facts

and legal arguments are adequately presented in the parties’ papers such that the decision process

would not be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2),

it is hereby ORDERED that the motion be resolved on the briefs submitted. For the following

reasons, Defendant’s Motion to Quash Plaintiff’s Third Party Subpoenas is DENIED.

II. BACKGROUND

This Court has set forth the background of this case in its previous opinion and orders. As

the Court stated:

Plaintiff, a French corporation, is the developer of a computer

software design program known as CATIA. Plaintiff has held a

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registered trademark, U.S. Reg. No. 1,274,136, on its CATIA

software since 1984. See Compl. Ex. A. Plaintiff also holds a

registered copyright on CATIA Version 5, Release 12 (“Release

12”), Registration No. 5-856-769, and has a pending copyright

registration for its most recent release, CATIA Version 5, Release 14

(“Release 14”). See Compl. Ex. C; ¶16. 

Defendant, appearing pro se, is a design engineer. Defendant,

along with some familial assistance, operates a business under the

name of Practical CATIA Training. Practical CATIA Training

provides its customers instruction in the use of CATIA software. 

CATIA software requires a license and Target ID in order to

execute the program on a computer. Plaintiff alleges that Defendant

purchased one license for Release 12 and was assigned a

corresponding Target ID. Plaintiff further contends that Defendant

cloned the software and Target IDs onto 20 computers, which

Defendant used to operate his business. Plaintiff maintains that these

actions infringe its copyright and trademark rights and violate the

Michigan Consumer Protection Act, Mich. Comp. Laws. § 445.901.

Dkt 28 at 2. In May 2009, Plaintiff filed a motion seeking leave to serve a subpoena on the United

States Federal Bureau of Investigation (“FBI”) to gain access to computers and documents seized

from Defendant’s school on behalf of the grand jury. In October 2009, the Court granted Plaintiff’s

motion. On August 2, 2010, Defendant appealed to the Sixth Circuit Court of Appeals. The Sixth

Circuit affirmed the Court’s decision to permit discovery of the seized computers and documents.

See Dassault Systemes, SA, v. Childress, 663 F.3d 832, 847 (6th Cir. Dec. 13, 2011). On February

9, 2012, the Sixth Circuit Court of Appeals issued the mandate allowing this Court to resume its

jurisdiction over the case. On April 7, 2012, the FBI produced the seized computers and documents.

Attempting to discover additional information to support its claim of copyright infringement,

on June 14, 2012, Plaintiff notified Defendant that it would be serving subpoenas on the FBI to gain

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access to any documents prepared by the FBI while interviewing Defendant and to depose FBI

Agent Christopher Pennisi (“Agent”). The first subpoena requested that the Agent produce “the

interview records, recordings, and other documents that refer to or otherwise memorialize any

interview of Defendant by the FBI, . . . regarding the FBI’s raid at [Defendant’s] business.” The

second subpoena requested that the Agent himself appear for a deposition regarding the materials

requested to be produced. On June 20, 2012, Defendant filed the instant motion to quash the thirdparty subpoenas served on the Agent.

While the parties were briefing the motion to quash, the Court held a scheduling conference

and received a letter from the United States Supreme Court that a petition for writ of certiorari

(“Petition”) was filed on June 28, 2012. During the scheduling conference held on Tuesday, July

10, 2012, the Court questioned the parties as to the effect, if any, that the Petition had on the Court’s

jurisdiction. With no clear answer, the Court ordered the parties to file supplemental briefing as to

whether the Court has continuing jurisdiction in light of the filed Petition. Both parties submitted

supplemental briefing. The Court therefore will address the jurisdictional issue before turning to

Defendant’s Motion to Quash.

III. ANALYSIS

A. JURISDICTIONAL ISSUE

The Court finds that its jurisdiction is not affected by the filing of the Petition. First, there

is no legal authority that states the Court lacks jurisdiction after the filing of the Petition. In

addition, the Federal Rules of Appellate Procedure and the United States Supreme Court Rules

provide procedures by which one may stay the issuance of a court of appeals mandate or stay the

proceeding in a district court based on the filing of a petition for writ of certiorari with the United

Supreme Court. See Fed. R. App. P. 41(d)(2)(a)(“A party may move to stay the mandate pending

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the filing of a petition for a writ of certiorari in the Supreme Court.”); Packwood v. Senate Select

Comm. on Ethics, 510 U.S. 1319, 1319–20 (1994) (setting forth the elements a party must satisfy

to obtain a stay during a pending petition for certiorari). If it were true that the filing of a petition

for writ of certiorari automatically divested the courts of appeals or district courts of jurisdiction,

these procedures would be meaningless. Therefore, Defendant’s filing of the Petition does not stop

the case from proceeding before the Court. 

Additionally, other courts presented with this issue reached a similar conclusion. See United

States v. Sears, 411 F.3d 1240, 1242 (11th Cir. 2005) (“The mere filing of a petition for certiorari

with the Supreme Court neither stops the mandate from issuing nor stops the case from proceeding

in the district court. A litigant desiring such cessation must seek and obtain a stay.”). See also

Aetna Cas. & Sur. Co. v. Flowers, 330 U.S. 464, 467 (1947) (finding no issue with the district court

resuming jurisdiction after issuance of the court of appeals mandate); Carr v. Zaja, 283 U.S. 52, 53

(1931) (same). Accordingly, once the Sixth Circuit issued the mandate on February 9, 2012, the

Court had jurisdiction over this matter, and such jurisdiction continues despite the filing of the

Petition. 

B. MOTION TO QUASH

Defendant claims that the evidence sought in the subpoenas is protected from disclosure by

Rule 6(e) of the Federal Rules of Criminal Procedure. The Court disagrees. Fed. R. Crim. P. 6(e)(2)

provides for the general secrecy of matters, except for several exceptions not relevant here,

occurring before the grand jury. The ban on disclosure applies to a grand juror, an interpreter, a

court reporter, an operator of a recording device, an attorney for the government or any government

personnel that an attorney for the government disclosed such matters to. Fed. R. Crim. P. 6(e)(2)(B),

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(3)(A).

The Court finds that Rule 6(e) does not bar disclosure. As Plaintiff aptly points out, it seeks

the FBI’s notes and information, to the extent that they exist, that were created by the FBI in regards

to any interview with Defendant during the search of Defendant’s business. This search

undisputedly occurred on the evening of October 30, 2006, whereas Defendant purportedly testified

before the grand jury on November 16, 2006. The requested documents, and related testimony from

the Agent, seek information regarding any interview that occurred on October 30, 2006—not

disclosure of matters before the grand jury on November 16, 2006. Plaintiff’s requested documents

and scheduled deposition fall outside the scope of Rule 6(e), as any interview that occurred on

October 30, 2006, is not a matter before the grand jury. “[T]he disclosure of information obtained

from a source independent of the grand jury proceedings, such as a prior government investigation,

does not violate Rule 6(e).” In re Grand Jury Investigation, 610 F.2d 202, 217 (5th Cir. 1980). 

The principle of Rule 6(e) is to maintain the secrecy surrounding the events that occurred

before the grand jury, including “the way in which information was presented to the grand jury, the

specific questions and inquiries of the grand jury, the deliberations and vote of the grand jury, the

targets upon which the grand jury’s suspicion focuses, and specific details of what took place before

the grand jury.” In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. 1299, 1302 (M.D. Fla.

1977). The subpoenas do not request information that impinges upon this principle. Therefore,

Plaintiff has overcome the presumption of non-disclosure, and the information requested is not

protected by Fed. R. Crim. P. 6(e)(2). See In re Grand Jury Subpoenas, 454 F.3d 511, 522 (6th Cir.

2006) (noting that the “discovery exception to grand jury secrecy has been interpreted somewhat

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To the extent the parties request that the Court conduct an in camera review of the

documents, the Court declines to do so.

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broadly”). Defendant’s request to quash the third-party subpoenas is denied.1

IV. CONCLUSION

Accordingly, and for the above reasons, IT IS HEREBY ORDERED that Defendant’s

Emergency Motion to Quash Plaintiff’s Third Party Subpoenas [dkt 103] is DENIED.

 IT IS SO ORDERED.

S/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: July 31, 2012

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Order was served upon the attorneys of record

by electronic or U.S. mail on July 31, 2012.

S/Marie E. Verlinde 

Case Manager

(810) 984-3290

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