A government antitrust criminal investigation into the LCD flat-screen industry prompted numerous follow-on private civil suits which proceeded at the same time. This case concerns whether the government may subpoena lawyers handling the civil suits to provide documents originating outside of the United States, rather than using the standard processes governing the collection of information from foreign parties. Normally in criminal cases, such information must be obtained through (1) letters rogatory, (2) international treaties, or (3) diplomatic channels. Obtaining such information from civil litigants puts the defendants in the untenable position of having to decide whether to decline to provide such information under the Fifth Amendment and facing negative consequences in the civil litigation, or providing the information and running the risk of self-incrimination in the criminal case.
The NAM filed an amicus brief on April 20, 2011, urging the Supreme Court to review a Ninth Circuit decision that the government has a right to discover the evidence from the civil proceeding. The Ninth Circuit ruled that a grand jury subpoena in the criminal investigation trumps a protective order that exists in the civil proceeding. The NAM brief counters that the Ninth Circuit's rule enables the Department of Justice to circumvent well-established methods for seeking foreign-based discovery, and exploits the wide-ranging system of discovery allowed in this country. We raised a concern that this ruling ignores potential international complications and consequences, and could harm American businesses that may be subject to retaliation in legal proceedings abroad. Hostility to American discovery practices has been well documented. There are other methods that the Justice Department can use to obtain foreign evidence, including 2 international agreements between the countries involved in this case.
The petition was denied on June 27, 2011.