IN RE: GRAND JURY SUBPOENA
(SERVED UPON STEPHEN A. ROACH, ESQUIRE).
Thomas M. Hoopes, with whom Hoopes and Cronin and Dana A.
Curhan were on brief, for intervenor.
Louis E. Peraertz, Attorney, U.S. Dep't of Justice, with whom
Bill Lann Lee, Acting Assistant Attorney General, Dennis J. Dimsey,
Attorney, U.S. Dep't of Justice, Donald K. Stern, United States
Attorney, and S. Theodore Merritt, Assistant United States
Attorney, were on brief, for respondent.
March 16, 1998
SELYA, Circuit Judge. This appeal requires us to develop a
mechanism for modulating the tension that can develop between a
protective order in a civil case, see Fed. R. Civ. P. 26(c), and
a grand jury subpoena seeking evidence that falls within the
protective order's compass. The question arises here on appeal
from the district court's refusal to quash a grand jury's
subpoena duces tecum that demands the production of materials
covered, at least in part, by a previously issued civil
protective order. The question presented is new to us, and the
decisions elsewhere divide over the correct approach. After
pondering the problem, we reject the district court's choice of
an analytic method, but nevertheless uphold the subpoena.
Because of the procedural posture in which this appeal arises,
the facts before us afford little expository nourishment. We
nonetheless offer the following informational crudité.
On an undetermined date, Michael Cox, an undercover Boston police officer, was, it is said, beaten brutally by a band of uniformed police officers. To redeem this alleged wrong, Cox sued the City of Boston and several individual officers, including the intervenor in this action, whom we shall call Joe Doakes.See footnote 1 In short order, the City filed a motion - later joined by Doakes - for a protective order pursuant to Fed. R. Civ. P. 26(c). The court (Young, U.S.D.J.) granted this request and issued a modifiable order that protected confidential information, defined as including "[a]ny and all Internal Affairs Division [(IAD)] records," as well as exhibits or evidence that incorporate any such confidential information. Doakes thereafter gave deposition testimony on three separate occasions between December 29, 1996, and April 7, 1997.
In due season, a federal grand jury initiated an investigation
into the attack. On April 4, 1997, the United States moved to
intervene in the civil case and to stay discovery. Judge Young
granted this motion and, with the consent of all parties,
administratively closed the case "until April 1, 1998 or [until]
any investigation by the [United States] is completed, whichever
On September 30, 1997, the grand jury summoned Cox's attorney,
Stephen A. Roach. The subpoena duces tecum directed Roach to
produce "[a]ll volumes of the deposition, including exhibits, of
[Joe Doakes] taken in Michael Cox v. City of Boston, et al."
Roach filed a motion requesting the district court to rule
whether his compliance with the subpoena would violate the
protective order. Citing the administrative closure of the civil
case file, Judge Young declined to hear the motion and directed
Roach to the district court's emergency calendar. Doakes moved to
intervene in the proceedings and the duty judge (Gertner,
U.S.D.J.) heard Roach's motion for instructions as well as
Doakes's motion to quash the subpoena duces tecum.
In pressing the motion to quash, Doakes's counsel _ who had not
represented him at the start of the civil case - argued that
the protective order safeguarded Doakes's entire deposition (and
the exhibits associated therewith) because he had been questioned
extensively about his statement to the IAD. After some backing
and filling, not now germane, Judge Gertner denied the motion to
quash. In fashioning her decision, the judge adopted the Second
Circuit's balancing test, see Martindell v. International Tel. &
Tel. Corp., 594 F.2d 291 (2d Cir. 1979), and determined that, all
things considered, the interests of the criminal investigation in
this instance outweighed the movant's interest in maintaining the
confidentiality of the record (especially since Doakes had
demonstrated no prior reliance on the protective order).
We review a district court's fact-based decisions regarding
quashal of grand jury subpoenas for abuse of discretion.See footnote 2 See In
re Grand Jury Matters, 751 F.2d 13, 16 (1st Cir. 1984). Withal,
a court that predicates a discretionary ruling on an erroneous
view of the law inevitably abuses its discretion. See Koon v.
United States, 116 S. Ct. 2035, 2047 (1996); United States v.
Snyder, ___ F.3d ___, ___ (1st Cir. 1998) [No. 97-1233, slip op.
at 6-7]. Thus, we review de novo whether the court below
employed the proper legal formulation in making the decision from
which Doakes appeals. See Snyder, ___ F.3d at ___ [slip op. at
7]; Soto v. United States, 11 F.3d 15, 17 (1st Cir. 1993).
A. Extant Standards.
The Second Circuit's Martindell test strives to balance society's
interest in obtaining grand jury evidence for law enforcement
purposes with its interest in "the just, speedy, and inexpensive
determination of civil disputes . . . by encouraging full
disclosure of all evidence that might conceivably be relevant."
594 F.2d at 295 (citation and internal quotation marks omitted).
In constructing this test, the Martindell court exalted civil
litigation over criminal prosecution on the theory that a
deponent's reliance on a protective order merits respect, and the
government's evidence-gathering powers are so sweeping that it
ordinarily will be "unnecessary" for prosecutors to go behind
civil protective orders. Id. at 296. In deference to these
considerations, the court declared that, absent a showing of
"improvidence in the grant of a Rule 26(c) protective order or
some extraordinary circumstance or compelling need . . . a
witness should be entitled to rely upon the enforceability of a
protective order against any third parties, including the
The Second Circuit's rule - positing a presumption in favor of
a protective order when such an order clashes with a grand jury
subpoena - has received a cool reception elsewhere. The Fourth
Circuit declined to follow Martindell, holding instead that "the
existence of an otherwise valid protective order [is] not
sufficient grounds to quash the subpoena duces tecum issued by
the . . . grand jury." In re Grand Jury Subpoena, 836 F.2d 1468,
1478 (4th Cir. 1988). The court adopted this per se rule after
weighing "the authority of a grand jury to gather evidence in a
criminal investigation; the deponents' right against self-
incrimination; and the goals of liberal discovery and efficient
dispute resolution in civil proceedings." Id. at 1471.
Calibrating these scales, the court concluded that society's
interest in grand jury access to all relevant information
overrode any countervailing interest in civil discovery. See id.
at 1474-75. Two other circuits have joined the fray, both siding
with the Fourth Circuit and advocating a per se rule that
invariably prefers grand jury subpoenas over civil protective
orders. See In re Grand Jury Subpoena, 62 F.3d 1222, 1224 (9th
Cir. 1995); In re Grand Jury Proceedings, 995 F.2d 1013, 1020
(11th Cir. 1993).
We are uneasy with both of these approaches. Turning first to
Martindell, we believe that its creation of a presumption
favoring the sanctity of civil protective orders tilts the scales
in exactly the wrong direction. By establishing a presumption in
favor of civil protective orders, Martindell fails to pay proper
respect to what we deem an issue of great importance: society's
profound interest in the thorough investigation of potential
criminal wrongdoing. See Nixon v. Fitzgerald, 457 U.S. 731, 754
n.37 (1982) (explaining "that there is a lesser public interest
in actions for civil damages than, for example, in criminal
prosecutions"). Furthermore, the Martindell rule suffers from
practical infirmities: the principles by which one court should
adjudge a protective order issued by another court "improvidently
granted" are difficult to standardize, and the circumstances
under which a United States Attorney might demonstrate a
"compelling need" are opaque. In short, the Martindell rule is
ill conceived as a matter of policy.
The Fourth Circuit's per se rule manifests a different vice:
inflexibility. Although the per se rule properly privileges the
public's interest in law enforcement over its interest in the
resolution of civil controversies, it does so without regard to
idiosyncratic circumstances. In other words, this approach puts
priorities in proper perspective, but overlooks that the balance
nonetheless is variable and that the confluence of the relevant
interests - generally, those of society at large and of the
parties who are seeking to keep a civil protective order
inviolate - occasionally may militate in favor of blunting a
grand jury's subpoena. Because this per se rule obviates all
analysis, it will trench upon legitimate concerns when (even if
rarely) a solid case can be made for exceptional treatment.
Always bringing overwhelming force to bear may be acceptable
military strategy, but the law often requires a more nuanced
B. The Modified Per Se Rule.
Regarding both the Martindell rule and the per se rule as flawed
to some extent, we chart a different course. The proper
approach, we think, is along the following lines: A grand jury's
subpoena trumps a Rule 26(c) protective order unless the person
seeking to avoid the subpoena can demonstrate the existence of
exceptional circumstances that clearly favor subordinating the
subpoena to the protective order. We believe that this rule
offers the desired flexibility and at the same time allows room
for reasoned analysis in a way that does not undermine the
public's interest in law enforcement out of a misplaced deference
to private parties. See Ajit V. Pai, Comment, Should a Grand
Jury Subpoena Override a District Court's Protective Order?, 65
U. Chi. L. Rev. 317 (1997) (espousing a similar rule).
How this presumption in favor of a grand jury subpoena plays out
in each individual case will depend upon the particular facts and
circumstances. When called upon to adjudicate a motion to quash
a grand jury subpoena in the face of a civil protective order, a
district court may mull factors such as the government's need for
the information (including the availability of other sources),
the severity of the contemplated criminal charges, the harm to
society should the alleged criminal wrongdoing go unpunished, the
interests served by continued maintenance of complete
confidentiality in the civil litigation, the value of the
protective order to the timely resolution of that litigation, the
harm to the party who sought the protective order if the
information is revealed to the grand jury, the severity of the
harm alleged by the civil-suit plaintiff, and the harm to society
and the parties should the encroachment upon the protective order
hamper the prosecution or defense of the civil case.See footnote 3 In the
end, society's interest in the assiduous prosecution of criminal
wrongdoing almost always will outweigh its interest in the
resolution of a civil matter between private parties, see, e.g.,
Nixon, 457 U.S. at 754 n.37, and thus, a civil protective order
ordinarily cannot be permitted to sidetrack a grand jury's
investigation.See footnote 4
C. The Remedy.
We are mindful that the district court, compelled by conflicting
precedent to guess at the rule of decision, applied the wrong
legal standard. Ordinarily, such a chain of events counsels in
favor of a remand. Yet, when a trial court misperceives the
applicable rule of law, remand is not always required. If the
record is sufficiently informative and the court has made
sufficiently detailed findings, it sometimes is possible for an
appellate tribunal to take those findings, marry them to the
correct rule of law, and render a decision. See, e.g., United
States v. Pierro, 32 F.3d 611, 622 (1st Cir. 1994); Societe des
Produits Nestle v. Casa Helvetia, Inc., 982 F.2d 633, 640-41,
642 (1st Cir. 1992); United States v. Mora, 821 F.2d 860, 869
(1st Cir. 1987).
This is such a case. The record yields all the information a
court is likely to need in order to rule upon a motion to quash.
In addition, Judge Gertner made certain relevant findings.See footnote 5 More
importantly, the record is barren of any evidence that would
permit a court to find exceptional circumstances, or that might
tend to show that the public interest would be served by taking
the unusual step of preferring the civil protective order over
the grand jury subpoena. The subpoenaed information is highly
relevant, the contemplated criminal charges are serious, the need
for deterrence is great, the public interest in prosecuting
police brutality cases is obvious, and, conversely, a limited
incursion on the protective order will neither delay the civil
litigation (which is stayed) nor unfairly skew its outcome.
We will not paint the lily. Remand would serve no useful purpose
because the record presents insurmountable obstacles for
Doakes. Indeed, even though Judge Gertner erroneously used a
legal standard much more congenial to Doakes's position - a
legal standard which incorrectly presumed that a protective order
ordinarily would prevail over a grand jury subpoena - she found
that the subpoena should be enforced. As the correct legal
standard treats grand jury subpoenas with considerably more
respect than the standard employed below, and as the judge's
findings of fact are entirely supportable, the subpoena's
survival is assured. We need go no further.