Should I Stay or Should I Go? Reviewing Documents Here or Abroad

U.S. lawyers advising their non-U.S. clients concerning potential legal exposure to the Department of Justice often must make a judgment concerning where to review their overseas client’s documents. Speed, cost and efficiency considerations ordinarily argue in favor of the client sending the documents to the U.S. for counsel to review in their office. But the prudent lawyer must first consider whether bringing the documents to the U.S. from overseas, where they may (practically speaking) be undiscoverable, exposes them to discovery via grand jury subpoena. Because the Justice Department’s grand jury subpoena power overseas is limited to U.S. nationals or residents (Fed. R. Crim. P. 17(e)(2); 28 U.S.C. §1783), and other means by which the Justice Department may obtain international discovery, such as letters rogatory and mutual legal assistance treaties, are cumbersome and uncertain, it is not unheard of for the Justice Department to seek an overseas client’s otherwise unavailable documents by issuing a grand jury subpoena to the client’s counsel. See In re Grand Jury Subpoenas, 627 F.3d 1143 (9th Cir. 2010) (reversing district court order quashing grand jury subpoenas to counsel for their overseas client’s documents).

Lawyers facing this dilemma have long sought arguments that would allow them to bring documents to the United States for review without exposing their client to the risk that the documents may wind up in the government’s hands. One such line of argument—inspired by the Supreme Court in Fisher v. United States, 425 U.S. 391 (1976)—is that documents that are undiscoverable in the hands of the client do not become discoverable in the hands of counsel. At first blush, this argument runs counter to the general rule that documents that are unprotected from discovery obtain no special protection because they are housed in a law firm. Nevertheless, an earlier Second Circuit opinion, In re Sarrio, 119 F.3d 143 (2d Cir. 1997), relying on Fisher, recognized that compelling the production of an overseas client’s documents from counsel when the documents would be undiscoverable from the client abroad would interfere with the attorney-client relationship. The Second Circuit’s recent holding in Kiobel v. Cravath, Swaine & Moore, No. 17-424, 2018 WL 3352757 (2d. Cir. July 10, 2018), adds considerable support for this argument.

The ‘Kiobel’ Decision