When Blue Turns to Grey: Grand Jury Subpoenas for Foreign Documents Produced in Civil Litigation
NYSBA NY Litigator
Price fixing in the liquid crystal display ("LCD") industry has been the subject of parallel federal criminal and civil antitrust proceedings for several years. Besides criminal guilty pleas and civil settlements, there have been both criminal and civil cases tried to jury verdicts. The pendency of parallel criminal and civil proceedings can present tensions, which frequently result in litigation calling on the courts to accommodate both criminal and civil justice interests. In the LCD proceedings, at least one such litigation issue is particularly noteworthy.
In this report, the authors discuss the issues that the LCD proceedings present. They first provide an overview of the case law on this subject. Then, they discuss the issues raised from three perspectives: (1) the defense; (2) the DOJ; and (3) the private plaintiffs. As their report reflects, there is limited case law at this point – indeed only two Courts of Appeal rulings involve "foreign" documents such as those in the LCD matter. At the same time, the clash here raises weighty policy issues that affect both criminal and civil antitrust enforcement. The LCD scenario, while relatively uncommon, is nevertheless likely to recur. Sooner or later, the Supreme Court can be expected to weigh in.
For a full version of the article, please contact co-author Jay L. Himes.