In Re Grand Jury Subpoenas

                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

In re: GRAND JURY SUBPOENAS,              
served on WHITE & CASE LLP,
LIEFF, CABRASER, HEINEMANN,                       No. 10-15758
BERNSTEIN LLP, K&L GATES LLP,
and NOSSAMAN LLP,                                  D.C. No.
                                                3:10-xr-90029-SI
                                                   OPINION
UNITED STATES OF AMERICA,
                       Appellant.
                                          
         Appeal from the United States District Court
           for the Northern District of California
           Susan Illston, District Judge, Presiding

                  Argued and Submitted
        November 3, 2010—San Francisco, California

                     Filed December 7, 2010

        Before: John T. Noonan and Richard A. Paez,
         Circuit Judges, and Kevin Thomas Duffy,
                      District Judge.*

                   Opinion by Judge Noonan




   *The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.

                               19635
19636          IN RE GRAND JURY SUBPOENAS




                      COUNSEL

James J. Fredricks, United States Department of Justice,
Washington, D.C., for appellant the United States.
                  IN RE GRAND JURY SUBPOENAS               19637
Christopher M. Curran, Washington, D.C., White & Case,
LLP, for White & Case, LLP., et al.


                          OPINION

NOONAN, Circuit Judge:

   The United States appeals an order of the district court
quashing certain subpoenas directed to the respondent law
firms named in the caption of the case (the Law Firms). The
subpoenas sought nonprivileged material in aid of a grand
jury investigating the clients of the Law Firms. The material
had been obtained by the firms as a result of civil discovery
in an antitrust suit. Holding that the district court abused its
discretion, we reverse its order.

                       BACKGROUND

   In 2006, the United States was conducting an antitrust
investigation into alleged criminal conduct. Soon afer this
investigation became public, a number of civil suits were filed
by private plaintiffs against the companies under investiga-
tion. These suits were consolidated in the Northern District of
California before District Judge Illston. The litigation resulted
in the production by the civil defendants of documents origi-
nating outside the United States. The documents at issue here
came into the possession of the Law Firms in the United
States.

   In this case the United States subpoenaed these documents.
Invoking Federal Rule of Criminal Procedure 17, the Law
Firms moved to quash. The district court stated that it found
no authority governing the case. It concluded: “However,
because the motions to quash raise novel issues with poten-
tially far-reaching implications about the power of the grand
jury and the relationship between grand jury proceedings and
19638            IN RE GRAND JURY SUBPOENAS
civil discovery of unindicted foreign defendants, the Court
finds it is more prudent to quash the subpoenas and allow the
DOJ to raise these issues on appeal to the Ninth Circuit.”

  This appeal followed.

                          ANALYSIS

   On appeal, the Law Firms argue that the district court exer-
cised its discretion under Fed. R. Evid. 17 to quash the sub-
poenas and that the court of appeals should respect its
reasonable exercise of discretion. We do not read the district
court’s decision as an exercise of discretion but as a passing
of the decision to this court. We are not reviewing an exercise
of discretion but a request for guidance.

   [1] No collusion between the civil suitors and the govern-
ment has been established or even suggested by the Law
Firms. Indeed, the district court determined that the govern-
ment had not engaged in any bad faith tactics. Moreover, the
Law Firms do not claim that the documents are privileged.
Accordingly, we apply our per se rule that a grand jury sub-
poena takes precedence over a civil protective order. In re
Grand Jury Supboenas Served on Meserve, Mumper &
Hughes, 62 F.3d 1222, 1226-27 (9th Cir. 1995.) By 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. See 18 U.S.C.
§ 3332.

  [2] For this reason, the order of the district court is
REVERSED. The subpoenas may be enforced.