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In re Grand Jury Subpoena Dated April 18, 2003

383 F.3d 905 (2004)

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In re Grand Jury Subpoena Dated April 18, 2003

United States Court of Appeals for the Ninth Circuit

383 F.3d 905 (2004)

Facts

As part of an antitrust investigation into sales of dynamic random-access memory (DRAM) chips, a grand jury issued several subpoenas. One subpoena duces tecum was issued to John Doe (defendant), a former salesperson at a DRAM manufacturer (the corporation). In response to a prior subpoena, the corporation named Doe as an employee involved in DRAM pricing. Agents of the Federal Bureau of Investigation interviewed Doe, and he admitted to discussing DRAM pricing with competitors and emailing his supervisor about those discussions. Doe denied possessing any records connected to the antitrust investigation and stated he left them at work when he ended his employment. The agents served Doe with a subpoena duces tecum demanding he appear before the grand jury and produce any documents he possessed that were related to the manufacturing or sale of DRAM parts, “including but not limited to, handwritten notes, calendars, diaries, daybooks, appointment calendars, or notepads, or any similar documents.” Doe claimed the Fifth Amendment privilege against self-incrimination and refused to produce the documents. Doe moved to quash the subpoena, arguing the act of production violated his Fifth Amendment rights. The district court denied the motion on the ground that the act of producing the documents was not testimonial because Doe’s possession of the documents was a foregone conclusion, and the court held Doe in contempt. Doe appealed the denial of the motion to quash and the contempt order.

Rule of Law

Issue

Holding and Reasoning (Canby, J.)

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