District Court is Able to Unseal Grand Jury Documents

District courts under their common law supervisory authority over a grand jury are able to unseal grand jury documents for reasons other than those found in the Federal Rules of Criminal Procedure

Carlson v. United States, 2016 BL 301445, 7th Cir., No. 15-2972, 9/15/16.

The Seventh Circuit ruled that a district court may use its supervisory authority to unseal grand jury documents under the court’s common law supervisory authority. This holding runs against the U.S. government’s stance, who argued that unsealing these documents can only be done under the Federal Rules of Criminal Procedure Rule 6(e)(3)(E). The court rejected that argument and held that Rule 6(e)(3)(E) does not limit a district court’s authority to unseal documents and that there are instances when it may be appropriate for the court to use this authority to unseal them. The ruling joins the Second, Eleventh, and D.C. Circuits in finding that Rule 6(e)(3)(E) is not exhaustive.

https://www.bloomberglaw.com/public/desktop/document/Carlson_v_United_States_No_152972_2016_BL_301445_7th_Cir_Sept_15_?1475611757

Ex-Governor Cannot Hide Emails Shared with State Lawyers in Corruption Investigation

The former Oregon governor cannot prevent emails shared with state lawyers from being introduced to a grand jury because of attorney-client privilege

United States v. Kitzhaber, 2016 BL 224564, 9th Cir., No. 15-35434, 7/13/16.

   The Ninth Circuit found that emails sent by a former governor to the state’s attorneys are not completely shielded by the attorney-client privilege in a grand jury investigation. The former governor used several personal email accounts to communicate with state attorneys regarding ethics violations, but, unbeknownst to him, were archived on state servers.

   The court rejected the ex-governor’s argument that he had an attorney-client privilege while sending those emails. While emails exchanged with privately held attorneys were protected, any email sent to the state attorneys were not because “[w]hatever privilege such communications may implicate is held by the State of Oregon, not [the governor] personally.” In addition, the court held that communication with a state’s attorney over “a consultation concerning conflict-of-interest or ethics laws is a consultation about an office holder's official actions and obligations. [A]n executive officer who consults with a government attorney concerning whether to let a certain contract go to a person with whom he has business dealings, or to a relative, is seeking advice about carrying out his official duties.”

http://www.bloomberglaw.com/public/document/United_States_v_Kitzhaber_No_1535434_2016_BL_224564_9th_Cir_July_.

Challenge Against State Law Requiring Secrecy After Grand Jury Trial Revived

A woman’s challenge against a Missouri state law prohibiting grand jurors from speaking about their experience had her lawsuit revived by the Eight Circuit 

Doe v. McCulloch, 2016 BL 195633, 8th Cir., No. 15-2667, 6/20/16.

   A female grand juror wanted to speak out about her grand jury trial experience surrounding the police officer involved in the death that sparked riots in Ferguson, Missouri. She started a First Amendment action against the law so that she could come out and dispel certain assumptions about the grand jury verdict, but has not been able to because of the law.

   Initially, a lower court dismissed the case because of its application of a case affecting secrecy and regulatory schemes. On the appeal, the circuit court found that a different case should have been used. This case, R.R. Comm’n of Texas v. Pullman Co., requires that a federal action be stayed to wait and see if the related state matter will moot the federal issue. The court issued in its opinion, “When the state-law issues have been resolved, if the First Amendment claim has not become moot, [plaintiff] may return to federal district court and pursue it.”

https://www.bloomberglaw.com/public/desktop/document/Doe_v_McCulloch_No_152667_2016_BL_195633_8th_Cir_June_20_2016_Cou?1467239982

Federal Grand Jury Proceedings Preempt N.M. Rule on Subpoenaing Lawyers

A New Mexico ethics rule limiting the subpoenaing of lawyers is preempted by federal prosecutors’ need for the lawyer as a witness in the grand jury context   

United States v. Supreme Court of N.M., 2016 BL 180748, 10th Cir., No. 14-2037, 6/7/16.

    A Tenth Circuit decision will now preempt an ethics rule in New Mexico that prevents prosecutors from subpoenaing another lawyer to present evidence about a former or current client without an essential need or alternative. The court, however, found that the rule is “an obstacle to the effectuation of the grand jury’s constitutionally authorized investigative functions,” allowing for federal prosecutorial need to preempt the rule in grand jury proceedings.

    New Mexico’s ethics rule, however, is still enforceable in other contexts, but will always be preempted in a grand jury situation.


http://www.bloomberglaw.com/public/document/United_States_v_Supreme_Court_of_NM_No_142037__142049_2016_BL_180