Petition for Writ of Certiorari — Doe Company, Petitioner v. United States

Supreme Court briefJan 29, 2021

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No.

In The

Supreme Court of tfje fHntteb States!

In re Grand Jury Investigation,

USAO No. 2018R01761

(Grand Jury Subpoenas to Pat Roe)

Doe Company,

Petitioner,

United States of America,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

(REDACTED)

Richard M. Strassberg

James D. Gatta

Goodwin Procter LLP

620 8th Avenue

New York, NY 10018

Emily M. Notini

Goodwin Procter LLP

100 Northern Avenue

Boston, MA 02210

January 29, 2021

William M. Jay

Counsel of Record

Andrew Kim

Goodwin Procter LLP

1900 N Street, N.W.

Washington, D.C. 20036

wjay@goodwinlaw.com

(202) 346-4000

Counsel for Petitioner

RECEIVED

FEB - 2 2021

OFFICE Of* THE CLERK

SUPREME COURT, U.S.

QUESTIONS PRESENTED

1. Whether an appealing party’s substantial in

terest in a disclosure order directing a disinterested

third party to produce documents provides appellate

jurisdiction under Perlman v. United States, 247 U.S.

7 (1918), where that interest will be lost absent im

mediate appellate review.

2. Whether a federal court lacks specific personal

jurisdiction to enforce a subpoena that is directed to a

foreign recipient and demands the production of doc

uments that are unrelated to the recipient’s contacts

with the United States.

PARTIES TO THE PROCEEDING

Petitioner, who was appellant below, is

Respondent, who was appellee below, is the United

States of America.

were

to the proceedings in the district court, but they were

not parties to the relevant motions at issue in this

case, and they did not participate in the appeal before

the Ninth Circuit.

RULE 29.6 STATEMENT

i^^direct^holly owned subsidiary of

No publicly

hel^comnany owns 10% or more of either

RELATED PROCEEDINGS

The proceedings directly related to this petition

are:

United States District Court (N.D. Cal.):

re Grand Jury Investigation 'USAO No.

20J&R01761 (Grand Jury Subpoenas to

No. 19-xr-90017-CR,B (July 26, 2019) (order

holding petitioner in contempt)

re Grand Jury Investigation USAOIJo.

20^R01761 (Grand Jury Subpoenas to

No. 19-xr-90017-CRB (May 14, 2019) (order

denying petitioner’s motion to quash)

re Grand Jury Investigation USAO

2018B01761 (Grand Jury Subpoenas to

No.

_____ p, No. 19-xr-90017-CRB (April 14, 2019) (order

granting government’s motion to compel compliance)

United States Court of Appeals (9th Cir.):

In re Grand Jury Investigation USAO No.

2018R01761 (Grand Jury Subpoenas to Pat Roe),

Nos. 19-10187, 19-10261 (July 27, 2020), en banc &

panel reh’g denied (Sept. 2, 2020)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..................................

INTRODUCTION....................................................

OPINIONS BELOW...............................................

JURISDICTION.......................................................

CONSTITUTIONAL PROVISION INVOLVED........3

STATEMENT

A. A federa^rand jury subpoenas the records

of a

-based company with no

presence in the United States..........................

B. The district court determines that it has

personal jurisdiction to enforce the Roe and

Company Subpoenas..........................................

C. The Ninth Circuit declines to hear

petitioner’s appeal regarding the Roe

Subpoenas, and affirms the district court’s

determination on the Company Subpoena

by focusing on petitioner’s relationship with

the Firm................................................................

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari to

resolve the circuit split regarding whether

a substantial interest against a disclosure

order directed at a third party suffices for

appellate jurisdiction under Perlman.........

A. The circuits are deeply split over whether

appellate jurisdiction under Perlman

requires more than a substantial interest in

an order of disclosure directed at a third

party................................................. .....................

B. This case presents an ideal vehicle to

resolve this important question.......................

II.

This Court should grant certiorari to

resolve a circuit conflict regarding whether

subpoenas are subject to this Court’s

precedents on personal jurisdiction................

A. The Ninth Circuit’s decision effectively

creates a new, looser standard of general

personal jurisdiction for grand jury

subpoenas, which directly conflicts with

this Court’s decisions.........................................

B. The Ninth Circuit’s approach to personal

jurisdiction for subpoenas irreconcilably

conflicts with the approach taken by the

Second, Seventh, and Tenth Circuits.............

C. The Ninth Circuit’s personal jurisdiction

ruling presents an important question, and

this case is an ideal vehicle to answer it.......

CONCLUSION............................................... ............

APPENDIX A: Opinion of the U.S. Court of

Appeals for the Ninth Circuit (July 27, 2020)......

APPENDIX B: District Court Order Granting

Contempt Motion (N.D. Cal. July 26, 2019)

(filed under seal)......................................................... 19a

APPENDIX C: District Court Order Denying

Motion to Quash (N.D. Cal. May 14, 2019)

(filed under seal) .....................................................

21a

APPENDIX D: District Court Order Granting

Motion to Compel Compliance (N.D. Cal. April

18, 2019) (filed under seal)....................................

24a

APPENDIX E: Order Denying Petition for Re

hearing (9th Cir. Sept. 2, 2020)............................

68a

TABLE OF AUTHORITIES

Page(s)

Cases

Application to Enforce Administrative

Subpoenas Duces Tecum of SEC v.

Knowles, In re,

87 F.3d 413 (10th Cir. 1996).............

Berkley & Co., In re,

629 F.2d 548 (8th Cir. 1980)..............

Blair v. United States,

250 U.S. 273 (1919).............................

Bristol-Myers Squibb Co. v.

Super. Ct. of Cal.,

137 S. Ct. 1773 (2017).........................

22, 25, 26

Brown v. United States,

359 U.S. 41 (1959)...............................

CFTC v. Parnon Energy Inc.,

593 F. App’x 32 (2d Cir. 2014)..........

Church of Scientology of Cal. v.

United States,

506 U.S. 9 (1992)..................................

11, 13, 19

Cobbledick u. United States,

309 U.S. 323 (1940).............................

Daimler AG v. Bauman,

571 U.S. 117 (2014).............................

25, 26, 28

Estate of Ungar v. Palestinian Auth.,

412 F. Supp. 2d 328 (S.D.N.Y. 2005)

Vll

Faltico, In re,

561 F.2d 109 (8th Cir. 1977)................

Gill v. Gulfstream Park Racing Ass’n,

399 F.3d 391 (1st Cir. 2005).................

14, 15, 22

Goodyear Dunlop Tire Operations, S.A.

v. Brown,

564 U.S. 915 (2011)......... .............. .......

Gotham Holdings, LP v.

Health Grades, Inc.,

580 F.3d 664 (7th Cir. 2009)................

Grand Jury Investigation of Possible

Violations of 18 U.S.C. § 1956 and 50

U.S.C. § 1705, In re,

381 F. Supp. 3d 37 (D.D.C. 2019).......

27, 30

Grand Jury Proceedings, In re,

616 F.3d 1172 (10th Cir. 2010)...........

Grand Jury (Schmidt), In re,

619 F.2d 1022 (3d Cir. 1980)............... 13, 14, 19, 29

Gucci Am., Inc. v. Weixing Li,

768 F.3d 122 (2d Cir. 2014)..................

Ins. Corp. of Ir. Ltd. v.

Compagnie des Bauxites de Guinee,

456 U.S. 694 (1982).......... .....................

23, 33

Int’l Shoe Co. v. Washington,

326 U.S. 310 (1945)...............................

J. McIntyre Mach., Ltd. v. Nicastro,

564 U.S. 873 (2011)...............................

Leibovitch u. Islamic Republic of Iran,

852 F.3d 687 (7th Cir. 2017)................

23, 28, 29

Levine v. United States,

362 U.S. 610 (1960)...............................

Marc Rich & Co., A.G., In re,

707 F.2d 663 (2d Cir. 1983)......... 29, 30, 31, 33, 34

Montgomery Ward & Co. u.

Zenith Radio Corp.,

673 F.2d 1254 (C.C.P.A. 1982)....

16, 21

NML Capital, Ltd. v.

Republic of Argentina,

Nos. 03-cv-8845 et al., 2011 WL

3897828 (S.D.N.Y. Sept. 2, 2011)

Perlman v. United States,

247 U.S. 7 (1918)

1, 2, 8, 11, 12, 13, 17, 20

Sealed Case, In re,

832 F.2d 1268 (D.C. Cir. 1987)...

South Corp. v. United States,

690 F.2d 1368 (Fed. Cir. 1982)

(en banc)...........................................

Subpoenas to Local 478, Int’l Union of

Operating Eng’rs and Benefit Funds,

In re,

708 F.2d 65 (2d Cir. 1983)...................

U.S. Catholic Conference v.

Abortion Rights Mobilization, Inc.,

487 U.S. 72 (1988)..................

United States v. Calandra,

414 U.S. 338 (1974)...............

United States v. Dionisio,

410 U.S. 1 (1973)....................

United States u. R. Enters., Inc.,

498 U.S. 292 (1991)...............

United States v. Ryan,

402 U.S. 530 (1971)...............

20, 21, 23, 32

United States v. Williams,

504 U.S. 36 (1992)...........................

United States ex rel. Pogue v. Diabetes

Treatment Ctrs. of Am., Inc.,

444 F.3d 462 (6th Cir. 2006)..........

Constitutional Provisions and Statutes

U.S. Const, amend. V..........................................

28 U.S.C. § 1254(1)............................................

Other Authorities

Fed. R. Civ. P. 45(a)(3)

PETITION FOR A WHIT OF CERTIORARI

Petitioner

respectfully petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Ninth

Circuit.1

INTRODU CTION

This petition presents two questions about courts’

ability to enforce constitutional limits on the gov

ernment’s subpoena power. Both questions involve a

circuit split, a sharp departure from this Court’s

precedents, and sweeping implications for both civil

and criminal subpoenas.

The first question concerns the ability to appeal an

order to comply with an unlawful subpoena. The

target of a subpoena can bring such an appeal (albeit

only by being held in contempt). But subpoenas are

often directed to third parties, who often yield to a

district court’s order to produce whatever documents

they hold rather than risk contempt to appeal. This

Court has therefore recognized for more than 100

years, since its landmark decision in Perlman v.

United States, 247 U.S. 7 (1918), that a person with

an interest in challenging a disclosure order to a

third party can obtain immediate appellate review.

This Court has required only that the third party be

unwilling to enter contempt to provide an opportuni

ty for judicial review and that the appealing party be

1 This petition concerns grand jury subpoenas subject to secrecy

rules. Any identifying information has been redacted for the

public fihng. The petition uses the generic references that the

Ninth Circuit used in its opinion below, except that the Ninth

Circuit called petitioner “the Company.”

otherwise “powerless to avert the mischief of the or

der.” Id. at 13.

The Ninth Circuit, joining the Second, has added a

new requirement that this Court has never endorsed:

only “a claim of privilege” opens the door to the ap

pellate courts. Pet. App. 14a. In these circuits, im

portant constitutional and jurisdictional objections to

subpoenas (such as grand jury abuse or the supervis

ing court’s lack of jurisdiction) can never be heard by

an appellate court. Six other circuits reject that

needlessly restrictive approach and allow appeals

under Perlman to raise other important challenges to

a disclosure order. The Second and Ninth Circuit’s

foreclosure of appellate review invites abuse and fo

rum-shopping. This Court should grant certiorari to

resolve the circuit split deepened by the Ninth Cir

cuit’s decision.

The second question concerns whether subpoenas,

like any other court-issued process, must comply

with the Due Process Clause’s limits on personal ju

risdiction. A court must have either general jurisdic

tion over the target or specific jurisdiction over the

subject matter. The Ninth Circuit effectively created

a third form of personal jurisdiction for subpoenas:

any connection with the United States creates per

sonal jurisdiction to enforce any subpoena, even one

that has nothing to do with the subpoena recipient’s

contacts with this country. That camel’s-nose theory

conflicts directly with two decades’ worth of personal

jurisdiction decisions from this Court, as well as the

decisions of three other circuits, all of which enforce

a subpoena only to the extent that the subpoena re

lates to the contacts giving rise to jurisdiction. Sub

poenas—even grand jury subpoenas—must follow

the Due Process Clause’s ordinary rules of personal

jurisdiction.

This Court should grant certiorari to resolve both

circuit conflicts and reject the Ninth Circuit’s view of

subpoena power free of appellate review or jurisdic

tional limitations.

OPINIONS BELOW

The decision of the court of appeals (Pet. App. la18a) is reported at 966 F.3d 991. The decisions of the

district court holding petitioner in contempt (Pet.

App. 19a-20a), denying petitioner’s motion to quash

(Pet. App. 21a-23a), and granting the government’s

motion to compel compliance (Pet. App. 24a-67a), are

unreported.

JURISDICTION

The judgment of the court of appeals was entered

on July 27, 2020. Pet. App. 2a. A petition for rehear

ing was denied on September 2, 2020. Pet. App. 68a.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment of the United States Consti

tution provides, in relevant part:

No person shall ... be deprived of life,

liberty, or property, without due process

of law.

STATEMENT

A. A federaFgrand jury subpoenas the records

of a________ -based company with no presence in the United States*.

1. Petitioner is a

venture capital. firm

that invests in other companies^y^jmjegisteredhisyi

company limited by shares in

m||.

only offices

C.A. ER241, ER444. It has no presence in the Unit

ed States.

One of the^omjjameij^r^vhich petitione^ia^nvested is

(MJlHi

C.A. ER236,

ER359, ER361. Petitioner initially funded the Firm,

but at the time of the issuance of the subpoenas in

this case, petitioner owned only a minority interest

in the Firm; outside investors currently own a major

ity of the Firm. C.A. ER236. Unlike petitioner, the

Fnm^ia|^ffice^i^ffi^Uriited States, including in

SER51

2. According to th^eoVemment^^mjmi^ur^ias

been investigating

CATERrMS"

Two of petitioner’s employees hav^beer^mplicated

in the grand juiVsmnvesti^ation.

(“Former CFO”),

rmer Chief Financial

Officer, was convicted

At the time.

of his conviction, the Former CFO was one of peti-

tioner’s employees. The grand jury has also indicted

jjjjHHH (“John Doe”), one of petitioner’s

foundin:

embers, on several chargesmjelatin^c^hg

ter

Petitioner was nott founded until afhad been completed.

As part of its i nvestigatiomthegra nd jury issued

two subpoenas to

(“Pat Roe”), a1

who is employed by peti

tioner as a public relations professional. While Pat

Roe was temporarily in the United States attending

the Former CFO’s trial, the government served Roe

with', a subpoena demanding that she produce,.among

other things, “lalll documents relating in any way to

the former

as well as all

documents concerning John Doe, the Former CFO,

and other

(“First Roe

Subpoena”). C.A. ER294. The First Roe Sub nena

wasuao^imited in time to the time of the

as a result, the records responsive to the

First Roe Subpoena include 140,000 emails in Roe’s

corporate email account that were saved on a work

laptop that Roe brought along during a trip to the

United States. C.A. ER148.

The government served a second, even broader,

subooena on Roe. asking for “lalll documents relating

^^^^^^^Fmcluding all documents on any media

in the possession of your counsel in the United

States” (“Second Roe Subpoena”).2 C.A. ER322.

2 There is no separate entit^calle^^

shorthand reference to either

stands

I”—it is a

The grand jury also issued_^j_^ubj3oena directed to

“Custodian of Records |” (“Company

Subpoena”). C.A. ER331. The government purport

ed to serve the Company Subgoem^D^ianding it to

an in-house attorney at the

office of

the Firm, in which (as noted) petitioner was a minor

ity investor. C.A. ER362. According to the govern

ment, the attorney who accepted the subpoena repre

sented that he was in a position to accept service on

petitioner’s behalf, id., even though petitioner had

never actually authorized either the attorney or the

Firm to accept service in lieu of petitioner, its minor

ity investor. C.A. ER220. The Company Subpoena

sought thejDroduction_of_^an^mc^il]_documents relating to”

the Former

CFO’s “trial and prosecution”; the “hiring, or possible

hiring, or retention, or possiblej^etentiom of any persons formerly employed by

and the

“transfer, or possible transfer, or payment, or possi

ble payment, of money ... or any other benefit, in

cluding emjdo^ment, of any persons formerly em

ployed by

.” C.A. ER336.

B.The district court determines that it has per

sonal jurisdiction to enforce the Roe and

Company Subpoenas.

1. The Company moved to quash the two Roe Sub

poenas, while the government moved to compel peti

tioner’s compliance with the Company Subpoena.

For all three subpoenas, petitioner argued that the

district court lacked the personal jurisdiction over

petitioner necessary to enforce each subpoena.3 For

the two Roe Subpoenas, petitioner contended that

3 Petitioner also argued that the Company Subpoena was not

properly served.

the government could obtain petitioner’s corporate

documents through Roe only by first establishing

personal jurisdiction over petitioner itself.

C.A.

ER282.

In an order dated April 18, 2019 (“April Order”),

the district court denied petitioner’s motion to quash

the Roe Subpoenas and granted the government’s

motion to compel compliance with the Company

Subpoena. The court began its jurisdictional analy

sis by remarking that “International Shoe is an ill fit

for questions about specific personal jurisdiction in

the grand jury context.” Pet. App. 35a. It went on to

opine that its jurisdictional analysis could “begin[|,

and endQ . . . with [the] argument that the

. . . possible violation of criminal law which the

Grand Jury is investigating is enough to support a

finding of specific personal jurisdiction.” Pet. App.

36a. The district court found this potential violation

of criminal law by looking to a draft, incomplete

memorandum proposing that the Former CFO and

John Doe would provide some initial funding to peti

tioner, which would be structured as a partnership.

(That structure was never implemented; petitioner is

not organized as a partnership, but a company lim

ited by shares.) Pet. App. 43a. The court deter

mined, based solely on this draf^jnemorandum, that

it was “plausible that former

employees

had invested money in [petitioner], and thus there

[wa]s a ‘reasonable possibility’ that [petitioner] may

have violated federal money laundering laws.” Pet.

App. 44a.

The district court addressed petitioner’s personal

jurisdiction arguments with respect to the Roe Sub

poenas in cursory fashion. It determined that “there

is jurisdiction over [petitioner], and so there is no

danger that serving subpoenas on [Roe] in [Roe’s]

personal capacity could circumvent the rule that a

court cannot obtain jurisdiction over a corporation by

serving process on a corporate officer while that of

ficer is in the jurisdiction.” Pet. App. 54a n.6. Be

cause other motions regarding the Roe Subpoenas

filed by other parties were still pending before the

district court at the time it ruled on petitioner’s ju

risdictional arguments, the court did not formally

deny petitioner’s motion to quash the Roe Subpoenas

until May 14, 2019 (“May Order”). Pet. App. 22a.

2. Petitioner appealed the April and May Orders.

C.A. ER151. While that appeal was pending, the dis

trict court held petitioner in contempt for failing to

comply with the Company Subpoena. Pet. App. 20a.

Petitioner appealed the contempt order. C.A. ER140.

C.The Ninth Circuit declines to hear petition

er’s appeal regarding the Roe Subpoenas,

and affirms the district court’s determina

tion on the Company Subpoena by focusing

on petitioner’s relationship with the Firm.

1. The court of appeals dismissed petitioner’s ap

peal regarding the Roe Subpoenas for lack of appel

late jurisdiction, and it affirmed the district court’s

decision to grant the government’s motion to compel

compliance with the Company Subpoena.4

Petitioner had appealed the district court’s deci

sion regarding the Roe Subpoenas under Perlman v.

United States, 247 U.S. 7 (1918), which allows for

4 Petitioner also argued that the Company Subpoena was im

properly served on an attorney of the Firm, as it did in the dis

trict court. That issue is not raised in this petition.

parties to immediately appeal disclosure orders di

rected at a disinterested third-party custodian. But

the panel rejected petitioner’s reliance on Perlman as

the basis for appellate jurisdiction, because the ap

peal did not present a claim of privilege. The panel

held for the first time that such “a claim of privilege

is essential to a Perlman appeal.” Pet. App. 14a.

The court of appeals acknowledged that it was reject

ing the Third Circuit’s approach to Perlman jurisdic

tion, which “require[s] only a disinterested third par

ty, irrespective of privilege.” Pet. App. 13a. The

panel expressly disagreed with the Third Circuit and

held that such a non-privilege-based claim “can later

be addressed at trial or on appeal.” Pet. App. 14a.

As for the Company Subpoena, the panel deter

mined that the district court had personal jurisdic

tion over petitioner based on: (l)^he^overnment’s

allegations “that money from the

] acquisition may have been laundered through [petitioner],

and later laundered again through what was initially

a wholly owned subsidiary of [petitioner],” i.e., the

Firm; (2) “evidence in the record that [petitioner] and

the Firm at one time shared the same office in the

United States”; and (3) “substantial overlap between

employees of [petitioner] and the Firm.” Pet. App.

16a.

The Ninth Circuit denied rehearing but stayed its

mandate pending disposition of this petition. The

subpoenaed documents have not yet been produced.

REASONS FOR GRANTING THE WRIT

In two different respects, the Ninth Circuit has de

parted from the seminal decisions of this Court and

the decisions of its sister circuits outlining the

ground rules for jurisdiction. Both departures war

rant this Court’s review.

On appellate jurisdiction, the Ninth Circuit

acknowledged that it was siding with the Second

Circuit opposite the Third Circuit on whether a claim

of privilege is necessary for jurisdiction under Perl

man. But the split runs much deeper than that; six

circuits—the First, Third, Sixth, Seventh, Eighth,

and Tenth—have construed Perlman more broadly

than the Ninth Circuit here. In those circuits, a sub

stantial interest against disclosure is all that is nec

essary for Perlman jurisdiction—privilege is suffi

cient, but not necessary. And the Ninth Circuit’s

privilege requirement is nowhere to be found in

Perlman itself, where this Court resolved both a

Fourth Amendment search-and-seizure argument

and a Fifth Amendment privilege argument on the

merits.

As for personal jurisdiction, the Ninth Circuit ap

plied a standard completely unmoored from this

Court’s precedents. The court did not find general

jurisdiction, and its analysis bears no resemblance to

specific jurisdiction: the Firm is not even mentioned

on the face of the subpoena, yet petitioner’s limited

connection to the Firm was the sole asserted link to

the United States. In the Ninth Circuit, any contact

with the United States now allows a subpoena to be

enforced, whether or not that contact is related to the

subpoena. That extraordinarily permissive approach

conflicts with the decisions of this Court and those of

the Second, Seventh, and Tenth Circuits, all of which

hold that a subpoena may seek only those documents

that are related to the subpoena recipient’s contacts

with the United States. A court’s exercise of coercive

power must be consistent with the basic due process

guarantee of personal jurisdiction. The power to en

force a grand jury subpoena is no exception.

This Court should grant certiorari to resolve both

conflicts. Both of the Ninth Circuit’s holdings weak

en important constraints on the subpoena power and

should be reviewed before they encourage further

abuse.

I. This Court should grant certiorari to resolve

the circuit split regarding whether a sub

stantial interest against a disclosure order

directed at a third party suffices for appel

late jurisdiction under Perlman.

As most circuits agree, Perlman is not limited to

privilege. For over a century, a disclosure order “di

rected at a disinterested third party [has been] treat

ed as an immediately appealable final order because

the third party presumably lacks a sufficient stake in

the proceeding to risk contempt by refusing compli

ance.” Church of Scientology of Cal. v. United States,

506 U.S. 9, 18 n.ll (1992). This Court concluded in

Perlman that denying immediate appellate review in

such circumstances would leave a person looking to

appeal the order “powerless to avert the mischief of

the order” and forced to “accept its incidence and

seek a remedy at some other time and in some other

way” through a “proceeding not yet brought and de

pending upon [the government] to be brought.” 247

U.S. at 13. That reasoning is not limited to privilege

cases, and Perlman did not say that it was.

Perlman started with a patent dispute and ended

with a grand jury investigation. Louis Perlman in

troduced certain exhibits at a patent trial, which

were later “impounded” and “kept under seal” by the

clerk of court. 247 U.S. at 9. A grand jury began in

vestigating Perlman, and the district court ordered

that the exhibits in the clerk of court’s possession be

released to the grand jury. Id. Perlman petitioned

the district court to restrain the clerk of court from

releasing the exhibits, which the court rejected.

Perlman appealed to this Court, arguing that “the

proposed use by the United States before the grand

jury of the exhibits as a basis for an indictment

against him constitutes an unreasonable seizure and

makes of him a compulsory witness against himself,

in violation of the Fourth and Fifth Amendments.”

Id. at 13. The government moved to dismiss the ap

peal for lack of jurisdiction, arguing that the disclo

sure order was “not final, but merely interlocutory,

and therefore not reviewable.” Id. at 12.

This Court overruled the government’s motion. It

found the government’s argument “strange”: the gov

ernment controlled whether to bring any criminal

proceeding and might never do so, yet was effectively

contending Perlman’s appeal was “interlocutory in a

proceeding not yet brought.” Id. at 12-13. To accept

the government’s argument, this Court reasoned,

would mean “that Perlman was powerless to avert

the mischief of the order but must accept its inci

dence and seek a remedy at some other time and in

some other way.” Id. at 13. The Perlman Court was

“unable to concur” in that result. Id. It went on to

reject Perlman’s appeal on the merits, reasoning that

there was no “invasion of. . . privacy” and no “taking

from [Perlman’s] immediate and personal posses

sion,” but rather “a voluntary exposition of the arti

cles.” Id. at 13-14.

Since Perlman, this Court has reaffirmed that a

disclosure order “directed at a third party” is an

“immediately appealable final order because the

third party presumably lacks sufficient stake in the

proceeding to risk contempt by refusing compliance.”

Church of Scientology, 506 U.S. at 18 n.ll; United

States v. Ryan, 402 U.S. 530, 533-34 (1971). But the

circuits are now split over what an appealing party

must claim in order to properly invoke appellate ju

risdiction.

A. The circuits are deeply split over whether

appellate jurisdiction under Perlman re

quires more than a substantial interest in

an order of disclosure directed at a third

party.

1. Six circuits have understood Perlman to require

only a substantial interest in a disclosure order di

rected at a third party. The Third Circuit was the

first to opine on the kind of interest and claim neces

sary to bring a Perlman appeal. The owner of a

Philadelphia brewery challenged federal grand jury

subpoenas directed to his employees, contending that

“the grand jury was not investigating any federal

crimes,” and that the grand jury’s investigation “was

being conducted in bad faith.” In re Grand Jury

(Schmidt), 619 F.2d 1022, 1024 (3d Cir. 1980). The

district court denied the brewery owner’s motion to

quash, and he appealed. The government moved to

dismiss, arguing that prior Perlman cases involved

“some property interest in, or claim of privilege re

specting, the information sought or the information

about to be disclosed,” whereas the brewery owner’s

appeal did not. Id. at 1026.

The Third Circuit disagreed, concluding that Perl

man review was available for more than just claims

involving privileges or property interests. The court

opined: “We can imagine cases where neither prop

erty interests, nor privileges, have been affected, but

other valued rights have.” Id. It gave the example of

“a political candidate’s liberty interest [being] in

fringed by serving grand jury subpoenas upon his

workers to discourage them from soliciting nominat

ing petitions or election support.” Id.

The First Circuit has reached the same conclusion

about Perlman jurisdiction. In Gill v. Gulfstream

Park Racing Ass’n, 399 F.3d 391 (1st Cir. 2005), a

non-profit association filed under seal confidential

information about a report that it prepared with the

help of tipsters as part of a civil defamation lawsuit

between a thoroughbred owner and a racetrack. Id.

at 394-95. When the district court ordered the in

formation to be unsealed, the association appealed,

arguing that Federal Rule of Civil Procedure 26’s

balancing test weighed in favor of withholding dis

closure to protect the public interests underlying the

government informant’s privilege. Id. at 402-03.

The party seeking disclosure argued that the court of

appeals lacked jurisdiction over the appeal because

the association failed to raise “a substantial privilege

claim.” Id. at 399.

The First Circuit rejected that argument, holding

that “[t]he Perlman doctrine requires only that the

appellant have ‘a significant interest in the matters

involved in the discovery order.’” Id. (quoting 15B

Charles Alan Wright et al., Federal Practice and Pro

cedure § 3914.23, at 156 (2d ed. 1991)). Acknowledg

ing that “[c]laims of privilege are by far the most

common,” the court of appeals emphasized that “[i]t

is not a requirement for interlocutory appeal of dis

covery orders conclusively determining third-party

rights that the appellant assert a substantial, wellrecognized claim of privilege,” and that a “proprie

tary interest also may suffice.” Id. (emphasis added;

citation and internal quotation marks omitted). The

court went on to consider the Rule 26 argument on

the merits, and remanded the case for the district

court to conduct the appropriate balancing analysis.

The Sixth, Seventh, Eighth, and Tenth Circuits

have also all taken the view that Perlman does not

require a claim of privilege, and that a substantial

interest may suffice. United States ex rel. Pogue v.

Diabetes Treatment Ctrs. of Am., Inc., 444 F.3d 462,

474 n. 8 (6th Cir. 2006) (“The Perlman doctrine allows

for immediate appeal from a discovery order when

the order is directed to a disinterested nonparty who

will not risk contempt merely to protect privacy in

terests that are more important to someone else.”

(emphasis added)); Gotham Holdings, LP v. Health

Grades, Inc., 580 F.3d 664, 665 (7th Cir. 2009) (in

voking Perlman to consider whether a disclosure

made in response to a subpoena was prohibited by a

contract requiring confidentiality in arbitration); In

re Berkley & Co., 629 F.2d 548, 551 (8th Cir. 1980)

(“A well-established exception to this rule, however,

permits an individual claiming a privilege or other

interest in subpoenaed documents to appeal from an

order to produce directed to a third party custodian

of the documents.” (emphasis added)); In re Faltico,

561 F.2d 109, 110-11 (8th Cir. 1977) (considering in a

Perlman appeal whether the order of disclosure vio

lates the First Amendment’s prohibition against

compelled speech); In re Grand Jury Proceedings,

616 F.3d 1172, 1179 (10th Cir. 2010) (“We have con

sistently held that we have appellate jurisdiction un

der the Perlman rule when an interlocutory appeal is

sought by an intervenor who claims a justiciable in

terest in preventing a third party’s disclosure of doc

uments or testimony, and the party subject to the

subpoena indicates that he or she will produce the

records or testify rather than risk contempt.” (em

phasis added)). The law in the Federal Circuit is the

same: just before being merged into the new Federal

Circuit, the Court of Customs and Patent Appeals,

also took the view that Perlman does not require a

privilege. Montgomery Ward & Co. v. Zenith Radio

Corp., 673 F.2d 1254, 1259 (C.C.P.A. 1982) (“[T]he

courts have not limited interlocutory appeals of dis

covery orders to those involving assertions of abso

lute or constitutional privileges. Indeed, appeals

have been permitted when based on an interest in

continued confidentiality of business records.”).5

2. Only two circuits have taken the opposite posi

tion and held that a claim of privilege is necessary to

seek appellate review under Perlman. Shortly after

the Third Circuit’s decision in Schmidt, the Second

Circuit issued a decision repudiating the Third Cir

cuit’s approach and deeming immediate appellate

review appropriate only when a disclosure order en

dangers “a constitutional, statutory, or common law

privilege.” In re Subpoenas to Local 478, Int’l Union

of Operating Eng’rs and Benefit Funds, 708 F.2d 65,

72-73 (2d Cir. 1983). To the extent that Schmidt

supported the position that a party could appeal un5 Decisions of the Court of Customs and Patent Appeals are

binding on the Federal Circuit. South Corp. v. United States,

690 F.2d 1368, 1370 (Fed. Cir. 1982) (en banc).

der Perlman when it sought to vindicate “a property

right to prevent disruption of its business affairs,”

the Second Circuit viewed such a holding as “error.”

Id. at 73. By the Second Circuit’s reasoning, allow

ing a Perlman appeal for anything other than a claim

of privilege could allow a party to “impede a grand

jury investigation, whether or not the [appealing

party comes] forward with concrete assertions that

the legal and practical value of fundamental rights

would be destroyed if collateral review were with

held.” Id.

The panel here opted to join the Second Circuit in

holding that “a claim of privilege is essential to a

Perlman appeal.” Pet. App. 14a. According to the

Ninth Circuit, “a claim of privilege is one of the only

non-procedural grounds on which a subpoenaed indi

vidual may resist a grand jury subpoena,” and thus,

“Perlman exists to protect that limited right.” Pet.

App. 10a. Agreeing with the Second Circuit’s reason

ing in Local 478, the Ninth Circuit observed—

without explaining how—that other harms, such as

“harms resulting from improper purpose,” can be

“addressed at trial or on appeal.” Pet. App. 13a.

This longstanding split over the type of interest

necessary to bring a Perlman appeal leaves the

availability of appellate review for third-party disclo

sure orders on grounds other than privilege entirely

at the mercy of geography. This Court should grant

review to ensure that access to the federal appellate

courts is uniformly available so long as the appealing

party has a substantial interest in the documents to

be disclosed, as the majority of circuits to speak on

the question have held.

B. This case presents an ideal vehicle to re

solve this important question.

The Ninth Circuit’s decision eliminates all appel

late review of most third-party subpoenas—criminal

and civil—with privilege claims the sole exception.

Even weight}'’ constitutional claims and challenges to

the basic authority of the court or grand jury will go

unreviewed. Subpoenas are already an extraordinar

ily broad tool backed by powerful penalties. This un

justified insulation of the subpoena power raises an

important issue that warrants this Court’s immedi

ate review.

This case is an idealvehicle to vindicate the ability

to appeal claims other than privilege. The interest

asserted in this case is a significant one—the consti

tutional right “to be subject only to lawful power.” J.

McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 884

(2011) (plurality opinion). Here, the government

seeks an extraordinarily broad , swath of company

documents, far broader than it could get from peti

tioner without general jurisdiction. So instead the

government chose to evade personal jurisdiction re

quirements by “tagging” petitioner’s employee—a

foreign citizen temporarily visiting the United

States—with a limitless demand for corporate docu

ments. In fact, the Second Roe Subpoena makes no

attempt at making a specific request, instea^simolv

asking for ‘Talll documents relal mi In

petitioner and its parent company], including all

documents on any media in the possession of your

counsel in the United States.” C.A. ER 322. Peti

tioner seeks to appeal to vindicate its own due pro

cess entitlement to the protections of personal juris-

diction, which cannot be evaded by tagging an em

ployee.6

Currently the Ninth Circuit cannot hear a consti

tutional or jurisdictional argument like that, and

neither can the Second. These courts also refuse to

consider claims that the grand jury is being used for

abusive purposes, e.g., Schmidt, 619 F.2d at 1024.

Closing the door to these claims, while allowing ap

peals on matters of evidentiary privilege, makes no

sense and has no basis in Perlman. The touchstone

of Perlman has always been the loss of a substantial

interest absent an immediate appeal, not the type of

interest being asserted. Church of Scientology, 506

U.S. at 18 n.ll (under Perlman, “a discovery order

directed at a disinterested third party is treated as

an immediately appealable final order because the

third party presumably lacks a sufficient stake in the

6 E.g., In re Sealed Case, 832 F.2d 1268, 1273 (D.C. Cir. 1987)

(observing that “service of a subpoena duces tecum on a corpo

rate officer vacationing in the United States would not allow

the Independent Counsel access to corporate records absent

proof that a United States court had jurisdiction over the corpo

ration itself’), abrogated on other grounds by Braswell v. United

States, 487 U.S. 99 (1988); NML Capital, Ltd. v. Republic of Ar

gentina, Nos. 03-cv-8845 et al., 2011 WL 3897828, at *3

(S.D.N.Y. Sept. 2, 2011) (holding that a subpoena directed at an

organization’s general manager was “in effect directed to the

[organization], because all of the information sought [was]

about the [organization], not about [the general manager] per

sonally”), aff’d sub nom. EM Ltd. v. Republic of Argentina, 695

F.3d 201 (2d Cir. 2012); Estate of Ungar v. Palestinian Auth.,

412 F. Supp. 2d 328, 335 (S.D.N.Y. 2005) (declining to compel

the production of “corporate documents only in [the subpoena

recipient’s] possession by virtue of his position as Chairman,” in

response to a personal capacity subpoena demanding such doc

uments).

proceeding to risk contempt by refusing compli

ance”).

2. This case also presents exactly the sort of irrep

arable loss that Perlman was meant to avoid—

without an appeal now, petitioner risks losing its

ability to pursue its personal jurisdiction arguments

on appeal ever. Cobbledick v. United States, 309 U.S.

323, 328-29 (1940) (“To have denied [Perlman] oppor

tunity for review on the theory that the district

court’s order was interlocutory would have made the

doctrine of finality a means of denying Perlman any

appellate review of his constitutional claim.”). Once

Roe provides documents responsive to the Roe Sub

poenas to the grand jury, petitioner’s appeal will be

moot. The Ninth Circuit suggested that the harms

here “can later be addressed at trial or on appeal,”

Pet. App. 14a, but that is hardly true. Not all grand

jury proceedings result in indictments, and not all

indictments lead to trial, verdict, and appeal. The

need for immediate appellate review to protect im

portant interests other than privilege is all the more

pressing in the case of someone who is not a target of

the grand jury’s investigation. That person will have

no future opportunity to appeal. Perlman, 247 U.S.

at 13 (rejecting the notion that an appeal is interloc

utory to a proceeding “not yet brought and depending

upon [the government] to be brought”).

But even assuming that the interested appellant

seeking Perlman review is a target of the grand ju

ry’s investigation, and an indictment eventually is

sues, that still leaves no viable path to appellate re

view for a claim like the one petitioner presents here.

There is no mechanism for a grand jury to “unsee”

evidence that has been unlawfully obtained. United

States v. Calandra, 414 U.S. 338, 349 (1974) (holding

that the exclusionary rule does not apply in grand

jury proceedings). A grand jury’s indictment cannot

be challenged on the ground that the evidence used

to issue the indictment was unconstitutionally ob

tained. Id. at 344-45 (holding that “an indictment

valid on its face is not subject to challenge on the

ground that the grand jury acted on the basis of in

adequate or incompetent evidence”). And the exclu

sionary rule has never been applied to evidence ob

tained from a subpoena which the issuing court

lacked personal jurisdiction to enforce. Thus, despite

the Ninth Circuit’s baseless conclusion to the contra

ry, this case presents a prime example of a disclosure

order for which the only meaningful avenue to appel

late review is an immediate appeal under Perlman.

3. The importance of the question presented is

heightened because the effects of the Ninth Circuit’s

decision will be felt far beyond the grand jury con

text; after all, there are civil Perlman appeals, too.

The Ninth Circuit opined that the grand jury de

serves “wide latitude,” Pet. App. 10a, but Perlman is

not limited to grand jury subpoenas and cannot be

limited on that basis.

Civil litigants have relied on Perlman appeals to

challenge a variety of orders to disclose confidential

but non-privileged information. A third party, for

example, may want to keep out of the public eye in

formation that it provided to a federal agency as part

of the agency’s investigation. E.g., CFTC v. Parnon

Energy Inc., 593 F. App’x 32 (2d Cir. 2014). A busi

ness may want to keep its proprietary information

confidential. Montgomery Ward, 673 F.2d at 1259.

And a trade association that regulates the activities

of its members may want to maintain confidentiality

to encourage its members to report unseemly or ille

gal activity. Gill, 399 F.3d at 403.

The Ninth Circuit’s “claim of privilege” test for

Perlman review would foreclose appellate jurisdic

tion where many other courts have recognized it.

And its reasoning for doing so has no application in

civil cases—yet Perlman applies equally to both civil

and criminal subpoenas. Even if the grand jury may

get “wide latitude,” Pet. App. 10a, civil subpoenas

can be issued by one party’s lawyer. Fed. R. Civ. P.

45(a)(3). Deference to the grand jury’s subpoena

power is no basis for a rule that withholds most ap

pellate review of all subpoenas. Most circuits recog

nize as much; this Court should not allow this overdeferential rule to persist in part of the country.

II. This Court should grant certiorari to resolve

a circuit conflict regarding whether subpoe

nas are subject to this Court’s precedents on

personal jurisdiction.

The Due Process Clause limits the personal juris

diction of courts to those parties with a “relationship

to the forum.” Bristol-Myers Squibb Co. v. Super. Ct.

of Cal., 137 S. Ct. 1773, 1779 (2017). Courts may ex

ercise only two forms of personal jurisdiction: “‘gen

eral’ (sometimes called ‘all-purpose’) jurisdiction, and

‘specific’ (sometimes called ‘case-linked’) jurisdic

tion.” Id. at 1780 (citation omitted). In this case, the

court of appeals recognized a third form of personal

jurisdiction, one that allows a court overseeing a

grand jury to exercise personal jurisdiction over a

corporation regarding any matter, so long as there is

something to connect the corporation to the United

States. That is not general jurisdiction, because a

corporation must be incorporated or have its princi

pal place of business in the United States to be “es

sentially at home” here. And it is not specific juris

diction, because the contacts supposedly giving rise

to jurisdiction are unrelated to the act that the court

is being asked to take.

Personal jurisdiction “represents a restriction on

judicial power not as a matter of sovereignty, but as

a matter of individual liberty.” Ins. Corp. of Ir. Ltd.

v. Compagnie des Bauxites de Guinee, 456 U.S. 694,

702 (1982). The restraint is no less effective just be

cause the process being enforced by a court comes

from a grand jury. A grand jury is “an arm of the

court,” and its proceedings “constitute a judicial in

quiry.” Levine v. United States, 362 U.S. 610, 617

(1960) (citation and internal quotation marks omit

ted). While a grand jury possesses broad discretion

as to what it may investigate, “the grand jury’s sub

poena power is not unlimited,” and relies on the

“power of a federal court to compel persons to appear

and testify before a grand jury.” Calandra, 414 U.S.

at 345, 346 & n.4 (“[T]he grand jury must rely on the

court to compel production of books, papers, docu

ments, and the testimony of witnesses . . . .”).

Personal jurisdiction applies to all court-issued

process—subpoenas just as much as complaints or

indictments. “[T]he subpoena power of a court can

not be more extensive than its jurisdiction.” U.S.

Catholic Conference v. Abortion Rights Mobilization,

Inc., 487 U.S. 72, 76 (1988). After all, “a court that

issues subpoenas is enforcing something rather than

begging,” just as in a civil or criminal action. Leibovitch v. Islamic Republic of Iran, 852 F.3d 687, 689

(7th Cir. 2017).

Until the panel’s decision here, there had been lit

tle dispute that the rules of personal jurisdiction that

apply to civil actions also apply to subpoenas (even

grand jury subpoenas). The Ninth Circuit departed

from that understanding, instead effectively crafting

a “grand jury exception” to the Due Process Clause’s

personal jurisdiction requirement. It affirmed the

enforcement of a subpoena seeking documents that

have nothing to do with the alleged contacts giving

rise to jurisdiction. That holding cannot be recon

ciled with this Court’s personal jurisdiction prece

dents, nor can it be squared with decisions from oth

er circuits faithfully applying those precedents to

subpoenas.

A. The Ninth Circuit’s decision effectively

creates a new, looser standard of general

personal jurisdiction for grand jury sub

poenas, which directly conflicts with this

Court’s decisions.

The court of appeals thought the district court

could exercise personal jurisdiction to enforce the

subpoena on a theory that had no connection with

the subpoena. According to the government, it was

plausible that petitioner may have engaged in money

laundering through the Firm, and because there

were facts demonstrating that petitioner at one point

used the Firm’s office in the United States. But the

subpoena being enforced by the district court had

nothing to do with petitioner’s relationship with the

Firm.

This Court has made clear that there is only one

circumstance where a court may exercise personal

jurisdiction over a person even if the person’s con

tacts with the forum have nothing to do with the

matter being heard by the court: when the court has

general jurisdiction because the person is “essential

ly at home” in the forum. Goodyear Dunlop Tire Op

erations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (ci

tation and internal quotation marks omitted); Int’l

Shoe Co. v. Washington, 326 U.S. 310, 318 (1945)

(“[T]here have been instances in which the continu

ous corporate operations within a state were thought

so substantial and of such a nature as to justify suit

against it on causes of action arising from dealings

entirely distinct from those activities.”). “[0]nly a

limited set of affiliations with a forum will render a

defendant amenable to all-purpose jurisdiction

there.” Daimler AG v. Bauman, 571 U.S. 117, 137

(2014). If there is no basis for general jurisdiction,

then jurisdiction must be limited to “issues deriving

from, or connected with, the very controversy that

establishes jurisdiction,” i.e., from the “activity or Q

occurrence that takes place in the forum.” BristolMyers Squibb, 137 S. Ct. at 1780 (citation omitted).

For a corporation, general jurisdiction lies, at most,

in only the two places where “the corporation is fairly

regarded as at home”: the place of incorporation, and

the principal place of business. Goodyear, 564 U.S.at

924. General jurisdiction is meant to be “easily as

certainable” and “clear and certain.” Daimler, 571

U.S. at 137. The simplicity of this test is intended to

allow foreign parties “to structure their primary con

duct with some minimum assurance as to where that

conduct will and will not render them liable.” Id. at

139 (citation omitted).

The Ninth Circuit’s test strips foreign companies of

that “minimum assurance.” According to the court of

appeals, a court has personal jurisdiction to enforce a

grand jury subpoena directed at a party so long as

there is evidence of “substantial overlap between the

employees” of the foreign corporation and another

corporation with a more significant presence in the

United States. Pet. App. 16a. It did not matter that

the “overlap,” which involved the “shar[ing of] the

same office in the United States,” had little to do

with what the subpoena is seeking. Id. As far as a

subpoena is concerned, that is functionally general

jurisdiction, and the Ninth Circuit’s standard comes

nowhere close to meeting the bright-line rules that

this Court affirmed in Daimler. The record here is

undisputed that petitioner was not incorporated

here, and it did not have its principal place of busi

ness here. The Ninth Circuit therefore should have

looked to see if the subpoena derived from the “activ

ity or Q occurrence that takes place in the forum.”

Bristol-Myers Squibb, 137 S. Ct. at 1780 (citation

omitted).

B. The Ninth Circuit’s approach to personal

jurisdiction for subpoenas irreconcilably

conflicts with the approach taken by the

Second, Seventh, and Tenth Circuits.

1. Every circuit to consider the question of when a

court meets the Due Process Clause’s personal juris

diction requirements for enforcing a subpoena has

held that there must be a nexus between (1) the con

tacts giving rise to jurisdiction, (2) the claim or of

fense involved, and (3) the documents or testimony

sought in the subpoena. The courts applying this

nexus requirement have recognized that a subpoena

recipient’s “United States . . . activity must relate to

the matter over which the Court will exercise juris

diction,” for “[w]ithout that connection, jurisdiction is

missing.” In re Grand Jury Investigation of Possible

Violations of 18 U.S.C. § 1956 and 50 U.S.C. § 1705,

381 F. Supp. 3d 37, 57 (D.D.C. 2019), aff’d sub nom.

In re Sealed Case, 932 F.3d 915 (D.C. Cir. 2019).

The Tenth Circuit was the first to recognize that

the Due Process Clause requires a nexus between (1)

the subpoena recipient’s contacts with the United

States, (2) the underlying offense or claim, and (3)

the subject matter of the subpoena itself. In In re

Application to Enforce Administrative Subpoenas

Duces Tecum of SEC v. Knowles, 87 F.3d 413 (10th

Cir. 1996), the U.S. Securities and Exchange Com

mission asked a district court to enforce two admin

istrative subpoenas that it served on a Bahamian cit

izen in his personal capacity. The subpoenas sought

bank records of two companies for whom the recipi

ent was the company president; the SEC issued the

subpoenas as part of an investigation of allegations

that the companies allegedly bribed U.S.-based secu

rities brokers. Id. at 414-15. The recipient chal

lenged the subpoenas on the ground that the district

court lacked personal jurisdiction to enforce them.

The court of appeals affirmed the district court’s de

cision to enforce the subpoenas. It noted that all of

the recipient’s contacts with the United States “con

cerned] his activities as the former president of [the

two companies],” the contacts “involve[d] activities

that [were] the very source of the SEC’s interest in

the two corporations,” and the “underlying investiga

tion and [the] subpoena enforcement action ar[o]se

out of [the recipient’s] contacts with the United

States.” Id. at 418.

The Second Circuit has followed the Tenth Circuit

in holding that the enforceability of a subpoena “fo-

cus[es] on the connection between the nonparty’s

contacts with the forum and the discovery order at

issue.” Gucci Am., Inc. v. Weixing Li, 768 F.3d 122,

141 (2d Cir. 2014) (citing Application to Enforce, 87

F.3d at 418). In Gucci, a district court had held that

a subpoena served on the Bank of China was en

forceable because the bank had a “continuous and

systematic” presence in the United States—

particularly, in New York. Id. at 136 (citation omit

ted). That was clearly wrong under Daimler, so the

Second Circuit remanded the case for the district

court to determine whether it had specific jurisdic

tion over the bank. In remanding, the court of ap

peals instructed the district court that, because the

process in question is a subpoena and not a full

blown civil action, the focus should be on “the nonparty’s contacts with the forum and the discovery or

der at issue.” Id. at 141.

The Seventh Circuit has adopted a similar ap

proach to personal jurisdiction for subpoenas. In

Leibovitch, a group of plaintiffs who had secured a

default judgment against the Islamic Republic of

Iran issued subpoenas to the U.S. branches of foreign

banks that had, at one point, held Iranian assets.

852 F.3d at 689. The banks had provided documents

with respect to their 17 branches in the United

States (none of which had Iranian assets), but the

plaintiffs were dissatisfied with the scope of that

production, as they wanted documents from any of

the banks’ branches anywhere in the world. Id. The

court of appeals held that the district court lacked

personal jurisdiction to indulge the plaintiffs’ de

mand. “It’s not as if the foreign banks are incorpo

rated or headquartered in the United States,” the

Seventh Circuit remarked, as that would put the

banks “within the court’s personal jurisdiction” and

make any discovery request fair game so long as it

did not “present an undue burden.” Id. at 689-90.

Because the banks did not meet the requirements for

general jurisdiction, the subpoenas had to be “tai

lored to the banks’ presence or activities in the Unit

ed States” to be enforceable. Id. at 690.

2. Even courts considering personal jurisdiction to

enforce grand jury subpoenas have recognized that

the documents being sought must be related to the

contacts giving rise to jurisdiction. The Second Cir

cuit was the first to take up this issue in In re Marc

Rich & Co., A.G., 707 F.2d 663 (2d Cir. 1983). Marc

Rich concerned a grand jury subpoena directed at a

Swiss company that did no business in the United

States, but had a subsidiary that did business in

New York. Id. at 665. The subpoena was issued as

part of a federal grand jury’s investigation of the two

companies, particularly as to allegations that the

Swiss parent entered into the transactions with the

U.S. subsidiary that were designed to evade the sub

sidiary’s taxes in the United States. Id.

The court determined that the district court had

personal jurisdiction to compel compliance with the

subpoena. In doing so, it recognized that the investi

gative function of the grand jury meant adjusting the

bar on “how much of a jurisdictional showing the

Government had to make in order to warrant the is

suance of the subpoena.” Id. at 669 (emphasis add

ed). But the Second Circuit never doubted that the

Due Process Clause’s personal jurisdiction require

ment also applied to grand jury subpoenas. Id. at

670 (citing Int’l Shoe, 326 U.S. at 320). Because a

full showing of personal jurisdiction “by a prepon-

derance of evidence,” i.e., the same standard that

would apply in civil suits, “might well invert the

grand jury function, requiring that body to furnish

answers to its questions before it could ask them,”

the court of appeals determined that the government

need only show a “reasonable probability” of personal

jurisdiction. Id. at 669-70 (citation omitted). It not

ed that the “reasonable probability” standard was

the same that a civil plaintiff would need to meet to

justify a temporary injunction challenged on the

ground that the court lacked personal jurisdiction.

Id. at 670 (citing Visual Sciences, Inc. v. Integrated

Commc’ns, Inc., 660 F.2d 56, 59 (2d Cir. 1981)). In

Marc Rich, the court found the “reasonable probabil

ity” standard satisfied by an affidavit averring that a

significant percentage of the domestic subsidiary’s

purchases were made from the foreign parent, which

resulted in a significant gross loss to the subsidiary.

Id. The grand jury’s subpoena sought records of

those transactions, and the court determined that it

was “reasonable and just, according to our tradition

al conception of fair play and substantial justice,” to

require compliance by the foreign parent in respond

ing to the subpoena. Id. (quoting Int’l Shoe, 326 U.S.

at 320).

Marc Rich demonstrates that the way to balance

the personal jurisdiction requirement against defer

ence to the grand jury’s “wide latitude” is to lessen

the amount of proof necessary to establish jurisdic

tion, not to dispense with the jurisdictional rules al

together as the Ninth Circuit did here. Indeed, at

least one court has applied Marc Rich in a way that

limits a grand jury subpoena’s reach to the contacts

that give rise to jurisdiction, i.e., subject to the same

limitations that apply to civil subpoenas. Violations

of 18 U.S.C. § 1956, 381 F. Supp. 3d at 57 (noting

that “United States . . . activity must relate to the

matter over which the Court will exercise jurisdic

tion,” as “[wjithout that connection, jurisdiction is

missing”).

C. The Ninth Circuit’s personal jurisdiction

ruling presents an important question, and

this case is an ideal vehicle to answer it.

The Ninth Circuit refused to acknowledge what ex

traordinary power it was allowing federal courts.

The Ninth Circuit claimed that it was faithfully ap

plying Marc Rich, but it ignored the Second Circuit’s

caution that “[a] federal court’s jurisdiction is not de

termined by its power to issue a subpoena; its power

to issue a subpoena is determined by its jurisdiction.”

Marc Rich, 707 F.2d at 669. If the court of appeals

were following Marc Rich, it would have determined

whether there were sufficient facts to show a “rea

sonable probability” of personal jurisdiction to en

force the Company Subpoena, i.e., that the jurisdic

tional contacts were connected to the documents be

ing sought in the subpoena. But the Ninth Circuit

refused to search for that nexus. Instead it found

any connection to the United States, coupled with

the grand jury’s suspicion that the subpoena recipi

ent is involved in an offense against the United

States, adequate to establish broad personal jurisdic

tion to seek all manner of documents.7

7 See, e.g., Pet. App. 16a (finding jurisdictionally significant the

fact that “[t]he government alleges that money from the acqui

sition may have been laundered through [petitioner], and later

laundered again through what was initially a wholly owned

subsidiary of [petitioner]”). The grand jury’s subpoena did not

ask for any documents relating to petitioner and the Firm; ra-

The court of appeals did not decide to adopt an

overly loose test for personal jurisdiction on its own.

Throughout this litigation, the government has

stressed that the grand jury may conduct an investi

gation based “merely on suspicion that the law is be

ing violated, or even just that it wants assurance

that it is not.” United States v. R. Enters., Inc., 498

U.S. 292, 297 (1991) (quoting United States v. Mor

ton Salt Co., 398 U.S. 632, 642-43 (1950)); see also

Gov’t C.A. Br. 26 (arguing that “[a] grand jury may

investigate based on ‘mere suspicion’”); C.A. ER262

(contending that “[t]he possible violation of the crim

inal laws of the United States is, by itself, sufficient

to support specific jurisdiction”). That is the test the

Ninth Circuit has effectively adopted: personal ju

risdiction lies wherever the grand jury may suspect a

crime, so long as there is something to tie the recipi

ent of the grand jury’s process to the United States,

even if that connection shares no overlap with what

is being sought in the subpoena.

However, “[t]he investigatory powers of the grand

jury are [] not unlimited.” R. Enters., 498 U.S. at

727. While the grand jury may receive “wide lati

tude” in what it may investigate, Calandra, 414 U.S.

at 343, its power to compel testimony and production

is only concurrent with that of its supervising court.

Brown v. United States, 359 U.S. 41, 49 (1959) (“A

grand jury is clothed with great independence in

many areas, but it remains an appendage of the

court, powerless to perform its investigative function

without the court’s aid.”), overruled on other grounds

therA^ough^irtually any and all documents relating to the

and regarding a certain set of current

and former employees of petitioner. C.A. ER 336.

by Harris v. United States, 382 U.S. 162 (1965); Blair

v. United States, 250 U.S. 273, 280 (1919) (“At the

foundation of our federal government the inquisitori

al function of the grand jury and the compulsion of

witnesses were recognized as incidents of the judicial

power of the United States.”). And here, a court

cannot compel compliance with the grand jury’s di

rectives “when the compulsion the grand jury seeks

would override rights accorded by the Constitution,”

United States v. Williams, 504 U.S. 36, 48 (1992),

particularly those rights that “represent!] a re

striction on judicial power,” such as the Due Process

Clause’s personal jurisdiction requirement, Ins.

Corp. of Ir., 456 U.S. at 702.

If left to stand, the Ninth Circuit’s decision would

make the grand jury’s reach limitless not only as to

subject matter and scope, but as to territorial bound

aries as well. Free from the restraints of the person

al jurisdiction caselaw that would bind a court in any

other scenario, under the Ninth Circuit’s reasoning,

a grand jury can compel a foreign party to answer its

demands if it even thinks that the party is associated

with offenses against the United States. A grand ju

ry subpoena is not “some talisman that dissolves all

constitutional protections.” United States v. Dionisio, 410 U.S. 1, 11 (1973). If federal courts super

vising grand juries must abide by the personal juris

diction rules imposed by the Due Process Clause,

grand juries, as arms of their supervising courts,

must abide by those rules as well.

This case presents the ideal vehicle for addressing

the Ninth Circuit’s limitless standard for personal

jurisdiction and grand jury subpoenas. Unlike Marc

Rich, the facts giving rise to personal jurisdiction

here have nothing to do with what the grand jury is

investigating. While solicitude to the grand jury’s

investigative function may justify diluting the quan

tum of proof required, as the Second Circuit did in

Marc Rich by adopting the “reasonable probability”

standard, that does not mean a court can abandon

the nexus between the minimum contacts giving rise

to jurisdiction and the subject matter of the grand

jury subpoena.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Richard M. Strassberg

James D. Gatta

Goodwin Procter LLP

620 8th Avenue

New York, NY 10018

Emily M. Notini

Goodwin Procter LLP

100 Northern Avenue

Boston, MA 02210

January 29, 2021

William M. Jay

Counsel of Record

Andrew Kim

Goodwin Procter LLP

1900 N Street, N.W.

Washington, D.C. 20036

wjay@goodwinlaw.com

(202) 346-4000

Counsel for Petitioner

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