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RESPONSIBLE PERSON'S SUBPOENA DUCES TECUM QUASHED.

MAR. 14, 2003

Pettersson, Ragnar v. U.S.

DATED MAR. 14, 2003
DOCUMENT ATTRIBUTES
  • Case Name
    RAGNAR PETTERSSON Plaintiff, v. UNITED STATES OF AMERICA Defendant.
  • Court
    United States District Court for the Northern District of Texas
  • Docket
    No. 3-01-CV-2046-M
  • Judge
    Kaplan, Jeff
  • Cross-Reference
    Ragnar Pettersson v. United States, No. 3:01-CV-2046-M (N.D.

    Tex. June 12, 2002) (For a summary, see Tax Notes, July 22,

    2002, p. 536; for the full text, see Doc 2002-16214 (7 original

    pages) or 2002 TNT 136-16.)
  • Parallel Citation
    91 A.F.T.R.2d (RIA) 2003-1703
    2003 WL 1950059
  • Code Sections
  • Subject Area/Tax Topics
  • Jurisdictions
  • Language
    English
  • Tax Analysts Document Number
    Doc 2003-19322 (3 original pages)
  • Tax Analysts Electronic Citation
    2003 TNT 167-9

Pettersson, Ragnar v. U.S.

 

IN THE UNITED STATES DISTRICT COURT

 

NORTHERN DISTRICT OF TEXAS

 

DALLAS DIVISION

 

 

MEMORANDUM ORDER

 

 

[1] The United States of America, by and through the U.S. Attorney for the Northern District of Texas, has filed a motion to quash and for protective order in connection with a subpoena duces tecum served on Earsie Johnson, an Investigator for the U.S. Department of Labor, Pension and Welfare Benefit Administration ("DOL"). The subpoena requires Johnson to appear for deposition and produce:

 

Any and all documents related to the United States Department of Labor and Industries' investigation of Walt Nubel, and other persons, regarding alleged misappropriations of International Aviation Services, Ltd. ["IAS"], 401K Savings Plan and a fund connected therewith, including but not limited to any and all documents provided to the United States Department of Labor and Industries or any agent of the United States, from third parties, such as former employees of International Aviation Services, Ltd., during the course of its investigation.

 

(DOL Mot., Exh. 1). As grounds for its motion, the DOL contends that the documents at issue were turned over to Johnson pursuant to grand jury subpoena and are protected from further disclosure by Rule 6(e)(2) of the Federal Rules of Criminal Procedure.1 Plaintiff counters that these documents are not "matters occurring before the grand jury" within the meaning of Rule 6(e)(2) because they are pre-existing business records of IAS. The motion has been fully briefed and argued by the parties and is ripe for determination.

[2] Rule 6(e)(2) provides, in relevant part:

 

A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(iii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules . . .

 

Fed. R. Crim. P. 6(e)(2) (emphasis added). It is undisputed that Johnson obtained documents relating to the IAS 401K Savings Plan from Debbie Scully, the former comptroller of IAS, pursuant to a grand jury subpoena.2 Relying on cases from other circuits, plaintiff contends that pre-existing business records of IAS are not "matters occurring before the grand jury" within the meaning of Rule 6(e)(2). See, e.g. United States v. Dynavac, Inc, 6 F.3d 1407, 1414 (9th Cir. 1993) (holding that grand jury's deliberative process would not be compromised by disclosure of business records); United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960) (inspection of pre-existing financial records submitted to grand jury not precluded by Rule 6(e)). However, the Fifth Circuit has adopted a "per se" rule protecting any documents submitted to and within the custody of the grand jury from disclosure. See Baskin v. United States, 135 F. 3d 33 8, 344 & n.3 (5th Cir. 1998); State of Texas v. United States Steel Corp., 546 F.2d 626 (5th Cir.), cert, denied, 98 S.Ct. 262 (1977). The court therefore concludes that the documents subpoenaed by plaintiff, which were turned over to Johnson pursuant to a grand jury subpoena, cannot be disclosed "except as otherwise provided for in these rules . . . " FED. R. CRIM. P. 6(e)(2).

[3] Rule 6(e)(3) authorizes the disclosure of otherwise prohibited matters occurring before the grand jury "when so directed by a court preliminarily to or in connection with a judicial proceeding." Fed. R. Crim. P. 6(e)(C)(i)(I). A party seeking the disclosure of grand jury materials under this rule must show a "particularized need," namely: (1) that the material is needed to avoid a possible injustice in another judicial proceeding; (2) that the need for disclosure outweighs the need for continued secrecy; and (3) that the request is structured to cover only the material needed. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979). Plaintiff has failed to allege, much less prove, a "particularized need" for the documents at issue.

[4] For these reasons, the DOL's motion to quash and for protective order is granted. Plaintiff's subpoena duces tecum to Earsie Johnson is quashed in its entirety.

[5] SO ORDERED.

[6] DATED: March 14, 2003.

 

FOOTNOTES

 

 

1 Initially, the DOL also argued that Johnson could not be compelled to testify or produce documents unless specifically authorized to do so by her supervisors. The regulation cited by the DOL, 29 U.S.C. § 2.22, provides:

 

No employee or former employee of the Department of Labor shall, in response to a demand of a court or other authority, produce any material contained in the files of the Department or disclose any information relating to material contained in the files of the Department, or disclose any information or produce any material acquired as part of the performance of his official duties or because of his official status without approval of the appropriate Deputy Solicitor of Labor.

 

29 C.F.R. § 2.22. See also United States ex rel. Touhy v. Ragen, 340 U. S. 462, 470, 71 S.Ct. 416, 420, 95 L. Ed. 417 (1951) (upholding validity of similar DOJ regulation). However, this regulation applies only to private litigation in which the federal government or any of its agencies is not a party. See State of Louisiana v. Sparks, 978 F.2d 226, 234 (5th Cir. 1992); Alexander v. F.B.I., 186 F.R.D. 66, 70 (D.D.C. 1998). Recognizing that the United States of America is a named defendant in the underlying action, the DOL withdrew this objection at oral argument.

2 Johnson was given access to these documents "to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law." Fed. R. Crim. P. 6(e)(3)(A)(ii).

 

END OF FOOTNOTES
DOCUMENT ATTRIBUTES
  • Case Name
    RAGNAR PETTERSSON Plaintiff, v. UNITED STATES OF AMERICA Defendant.
  • Court
    United States District Court for the Northern District of Texas
  • Docket
    No. 3-01-CV-2046-M
  • Judge
    Kaplan, Jeff
  • Cross-Reference
    Ragnar Pettersson v. United States, No. 3:01-CV-2046-M (N.D.

    Tex. June 12, 2002) (For a summary, see Tax Notes, July 22,

    2002, p. 536; for the full text, see Doc 2002-16214 (7 original

    pages) or 2002 TNT 136-16.)
  • Parallel Citation
    91 A.F.T.R.2d (RIA) 2003-1703
    2003 WL 1950059
  • Code Sections
  • Subject Area/Tax Topics
  • Jurisdictions
  • Language
    English
  • Tax Analysts Document Number
    Doc 2003-19322 (3 original pages)
  • Tax Analysts Electronic Citation
    2003 TNT 167-9
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