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When Blue Turns to Grey: Grand Jury Subpoenas for Foreign Documents Produced in Civil Litigation

Jay Himes, Gregory S. Asciolla et al., NYSBA NY Litigator, 2013 [Published in 2014]

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In this report, the authors discuss the issues that the LCD proceedings present. They first provide an overview of the case law on this subject. Then, they discuss the issues raised from three perspectives: (1) the defense; (2) the DOJ; and (3) the private plaintiffs. As their report reflects, there is limited case law at this point – indeed only two Courts of Appeal rulings involve "foreign" documents such as those in the LCD matter. At the same time, the clash here raises weighty policy issues that affect both criminal and civil antitrust enforcement. The LCD scenario, while relatively uncommon, is nevertheless likely to recur. Sooner or later, the Supreme Court can be expected to weigh in.

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