In re Grand Jury Investigation

A call center (defendant) marketed a surgical device for medical facilities using billboards, bus placards, and direct mail advertising. A Los Angeles public health department official wrote to the Food and Drug Administration (FDA) claiming that the advertisements did not adequately inform consumers about the device’s potential risks. The call center had an attorney send a letter to the FDA disputing the allegations and attempting to prevent an investigation. The FDA nonetheless investigated and sent warning letters to the call center and some California medical centers advising that the advertising did not comply with applicable federal law. The call center hired a second attorney to respond to the FDA warning letter, and a third attorney responded for the medical centers. The government (plaintiff) issued grand jury subpoenas to the three attorneys to produce all communications about the letters, “including documents and notes showing the information received and identifying the sources,” as well as records identifying the clients. The attorneys provided some information but not everything the subpoenas sought, asserting attorney-client privilege. The government moved to compel compliance. Without reviewing the requested documents in camera, the judge determined from independent evidence that the government had established that the call center and medical centers had retained the attorneys to make false statements to the FDA and obstruct its investigation and ordered the attorneys to produce all “matters identified in the subpoenas.” The call center, medical centers, and attorneys appealed.