Court Requires DOJ to Disclose Audio Recordings


Judge Paul Borman, District Judge for the Eastern District of Michigan, recently ordered the Department of Justice (“DOJ”) to produce tape recordings to the direct purchaser plaintiffs in the In re Packaged Ice multidistrict price-fixing litigation. By rejecting DOJ’s claims of sovereign immunity, privilege, and work product, the decision may signal a growing willingness to permit disclosure in subsequent civil actions of otherwise confidential investigative materials.

Background and Ruling

In re Packaged Ice Antitrust Litig., No. 08-md-01952 (E.D. Mich. May 10, 2011), involves an alleged conspiracy among ice companies to maintain high packaged ice prices. In 2004, DOJ began a criminal investigation into the alleged anticompetitive conduct of major packaged ice players. During the course of the investigation, DOJ, with the cooperation of certain individuals, obtained taped recordings of conversations with persons of interest. As part of a separate cooperation agreement with one of the defendants, the direct purchaser plaintiffs learned of these taped recordings and, following the termination of DOJ’s investigation, served a subpoena on DOJ seeking the recordings and transcripts. Although the cooperating witnesses (including employees of the cooperating companies) did not oppose disclosure, DOJ objected to the subpoena on grounds of sovereign immunity, the investigatory files privilege, the law enforcement privilege, and work product protection.

Judge Borman rejected DOJ’s sovereign immunity argument. According to Judge Borman, the circuits are split on whether sovereign immunity can bar a federal court from enforcing a federal subpoena against a non-party federal agency. Judge Borman observed that the Fourth and Eleventh Circuits have agreed with DOJ’s argument that sovereign immunity applies absent a waiver. (p. 4). These courts held that “a proceeding under the APA, and the APA’s ‘arbitrary and capricious’ standard of review, is the only avenue of relief.” (Id.). However, the Ninth and D.C. Circuits have ruled that sovereign immunity does not bar a federal court from enforcing a federal subpoena against a non-party federal agency subject to the discovery limitations in the Federal Rules of Civil Procedure. (pp. 4-5). Judge Borman concluded that, although the Sixth Circuit has not expressly decided the issue, he would join the courts “that have concluded that Federal Rule of Civil Procedure 45 and various available privilege rules provide sufficient limitations on discovery to adequately address legitimate governmental interests in objecting to a motion to compel compliance with a valid federal court subpoena.” (p. 4).

Please see full article below for more information.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ropes & Gray LLP | Attorney Advertising

Written by:


Ropes & Gray LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.