United States v. R. Enterprises, Inc./Concurrence Stevens

by John Paul Stevens

Justice STEVENS, with whom Justice MARSHALL and Justice BLACKMUN join, concurring in part and concurring in the judgment.

Federal Rule of Criminal Procedure 17(c) authorizes a federal district court to quash or modify a grand jury subpoena duces tecum "if compliance would be unreasonable or oppressive." See United States v. Calandra, 414 U.S. 338, 346, n. 4, 94 S.Ct. 613, 619, n. 4, 38 L.Ed.2d 561 (1974). This Rule requires the district court to balance the burden of compliance, on the one hand, against the governmental interest in obtaining the documents on the other. ^[1] A more burdensome subpoena should be justified by a somewhat higher degree of probable relevance than a subpoena that imposes a minimal or nonexistent burden. ^[2] Against the procedural history of this case, the Court has attempted to define the term "reasonable" in the abstract, looking only at the relevance side of the balance. See ante, at 300, 301. ^[3] Because I believe that this truncated approach to the Rule will neither provide adequate guidance to the district court nor place any meaningful constraint on the overzealous prosecutor, I add these comments.

The burden of establishing that compliance would be unreasonable or oppressive rests, of course, on the subpoenaed witness. This result accords not only with the presumption of regularity that attaches to grand jury proceedings, as the Court notes, see ante, at 300-301, but also with the general rule that the burden of proof lies on "the party asserting the affirmative of a proposition," see, e.g., Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 589 (CA1), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979).

The moving party has the initial task of demonstrating to the Court that he has some valid objection to compliance. This showing might be made in various ways. Depending on the volume and location of the requested materials, the mere cost in terms of time, money, and effort of responding to a dragnet subpoena could satisfy the initial hurdle. Similarly, if a witness showed that compliance with the subpoena would intrude significantly on his privacy interests, or call for the disclosure of trade secrets or other confidential information, further inquiry would be required. Or, as in this case, the movant might demonstrate that compliance would have First Amendment implications.

The trial court need inquire into the relevance of subpoenaed materials only after the moving party has made this initial showing. And, as is true in the parallel context of pretrial civil discovery, a matter also committed to the sound discretion of the trial judge, the degree of need sufficient to justify denial of the motion to quash will vary to some extent with the burden of producing the requested information. ^[4] For the reasons stated by the Court, in the grand jury context the law enforcement interest will almost always prevail, and the documents must be produced. I stress, however, that the Court's opinion should not be read to suggest that the deferential relevance standard the Court has formulated will govern decision in every case, no matter how intrusive or burdensome the request. See ante, at 301 ("The Court of Appeals accordingly did not consider these aspects of the subpoenas, nor do we").

I agree with the Court that what is "unreasonable or oppressive" in the context of a trial subpoena is not necessarily unreasonable or oppressive in the grand jury context. Although the same language of Rule 17(c) governs both situations, the teaching of United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), is not directly applicable to the very different grand jury context. Thus, I join in Parts I and II of the Court's opinion, and I am in accord with its decision to send the case back to the Court of Appeals. I also agree that the possible First Amendment implications of compliance should be considered by that court. I would only add that further inquiry into the possible unreasonable or oppressive character of this subpoena should also take into account the entire history of this grand jury investigation, including the series of subpoenas that have been issued to the same corporations and their affiliates during the past several years, see In re Grand Jury 87-3 Subpoena Duces Tecum, 884 F.2d 772, 774-775 (CA4 1989).

Notes

1. See, e.g., In re Grand Jury Subpoena: Subpoena Duces Tecum, 829 F.2d 1291, 1298 (CA4 1987); In re Grand Jury Subpoena Served upon Doe, 781 F.2d 238, 250 (CA2) (en banc), cert. denied sub nom. Roe v. United States, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914 (1986); In re Grand Jury Matters, 751 F.2d 13, 19 (CA1 1984); In re Special April 1977 Grand Jury, 581 F.2d 589, 595 (CA7), cert. denied sub nom. Scott v. United States, 439 U.S. 1046, 99 S.Ct. 721, 58 L.Ed.2d 705 (1978). Cf. Hale v. Henkel, 201 U.S. 43, 76-77, 26 S.Ct. 370, 379-380, 50 L.Ed. 652 (1906) (applying similar balancing test to determine the "reasonableness" of a subpoena under the Fourth Amendment); In re Grand Jury Impaneled January 21, 1975, 541 F.2d 373, 382-383 (CA3 1976) (balancing "public's interest in law enforcement and in ensuring effective grand jury proceedings" and state-created "reports privilege" in deciding whether to quash subpoena).
2. See, e.g., In re Grand Jury Subpoena, 829 F.2d, at 1296-1301 (applying heightened scrutiny in Rule 17(c) balance because of First Amendment concerns); In re Grand Jury Matters, 751 F.2d, at 18 (requiring Government to show need "with some particularity" because timing of subpoena posed "such potential for harm" to defendants and their right to counsel); In re Grand Jury Proceedings, 707 F.Supp. 1207, 1219 (D.Haw.1989) (quashing subpoena because "the government has failed to proffer sufficient evidence of fraud permeating the works of the celebrity artists to justify the great magnitude of the subpoena requests"); In re Grand Jury Proceedings Witness Bardier, 486 F.Supp. 1203, 1214 (D.Nev.1980) (quashing subpoena because demand was "so onerous in its burden as to be out of proportion to the end sought"); In re Grand Jury Investigation, 459 F.Supp. 1335, 1343 (ED Pa.1978) (refusing to quash subpoena because "[court] cannot say that the documentation requested in this instance is excessive relative to the scope of the investigation").
3. The Fourth Circuit, like the Court, conducted the relevancy inquiry without regard to the burden of compliance. Respondents, however, in their affidavits in support of their motions to quash, framed their relevancy arguments in the broader context of the burden imposed by the subpoenas. Respondents noted that the subpoenas required production of virtually all their corporate records. See App. in In re Grand Jury 87-3 Subpoena Duces Tecum, 884 F.2d 772 (CA4 1989), p. A-343, ¶ 18; id., at A-497 to A-498, ¶ 8 (hereinafter App.). Respondents argued that compliance with the subpoenas would violate their rights to privacy and their rights under the First and Fourth Amendments. See id., at A-342 to A-349, &Par; 17, 19-31; id., at A-497, A-500 to A-503, &Par; 7, 14-20. And, as the Court recognizes, ante, at 9, respondents expressly contended that the First Amendment implications of the subpoenas required a heightened level of relevance. App. A-345, ¶ 22; id., at A-502, ¶ 18.
4. See, e.g., Northrop Corp. v. McDonnell Douglas Corp., 243 U.S.App.D.C. 19, 31, 751 F.2d 395, 407 (1984) ("The need of the party seeking the documents is a relevant factor in considering a claim of oppressiveness, and a case may arise where the need is great enough to overcome a claim [of burdensomeness] such as [the State Department raises] here") (citation omitted); In re Multi-Piece Rim Products Liability Litigation, 209 U.S.App.D.C. 416, 424-425, 653 F.2d 671, 679-680 (1981) ("relevance of discovery requests" must be weighed against "oppressiveness" "in deciding whether discovery should be compelled"); United States v. Balistrieri, 606 F.2d 216, 221 (CA7 1979) ("The district court's decision to quash Balistrieri's discovery requests was within its discretion under the rule, especially in light of the breadth of the discovery requests in relation to the rather narrow ground of illegal surveillance upon which [his action] was based" ), cert. denied, 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980); Marshall v. Westinghouse Electric Corp., 576 F.2d 588, 592 (CA5 1978) (plaintiff seeking broad range of documents "must show a more particularized need and relevance"); Litton Industries, Inc. v. Chesapeake & Ohio R. Co., 129 F.R.D. 528, 530 (ED Wis.1990) (" 'If it is established that confidential information is being sought, the burden is on the party seeking discovery to establish that the information is sufficiently relevant and necessary to his case to outweigh the harm disclosure would cause' ") (citation omitted); Lloyd v. Cessna Aircraft Co., 430 F.Supp. 25, 26 (ED Tenn.1976) (requiring "special need" to justify deposition in view of short notice afforded deposed party).