MEMORANDUM AND ORDER
This is a subpoena enforcement action brought by the Resolution Trust Corporation ("RTC") against Grant Thornton, an accounting firm, to compel the firm to respond to three administrative subpoenas issued in connection with the RTC's investigation of Grant Thornton's role, if any, in the failure of three financial institutions. The RTC has moved for reconsideration of those portions of a May 1, 1992 Memorandum and Order of this Court that required the RTC to give ten days' notice to respondent Grant Thornton prior to disclosing to the Federal Deposit Insurance Corporation ("FDIC") any of the materials responsive to the San Jacinto subpoena. The facts of this case and the rationale for the notice requirement are set forth in the Court's prior Memorandum.
The RTC now contends that several decisions of the Court of Appeals for the District of Columbia Circuit render a notice requirement of this sort inappropriate under the circumstances of this case. The most relevant of these decisions, which the RTC concedes was "not thoroughly discussed" in its prior submissions to this Court (in fact it was not "discussed" at all), is Appeal of FTC Line of Business Report Litigation, 595 F.2d 685 (D.C. Cir. 1978). Appeal of FTC was an enforcement action brought by the Federal Trade Commission to compel numerous corporations to respond to two statistical surveys -- essentially the equivalent of investigatory subpoenas -- issued by the FTC. Several of these corporations were respondents in pending adjudicative proceedings brought by the FTC. These corporations objected to the survey on the ground that FTC complaint counsel might obtain the survey information for use in the adjudicative proceedings, and thereby make an "end run" around the discovery procedures ordinarily applicable to those proceedings. See id. at 707. The court held, however, that the corporations' claims did not relate to the enforcement of the surveys, but rather only to the extent to which the information responsive to the surveys could be used in connection with the adjudication. Id. at 708. Accordingly, the court held that the corporations' objections had to be made first in the adjudicative proceedings and then pursued, if necessary, in the administrative and judicial avenues of appeal; the objections could not be raised in the subpoena enforcement action. Id.1
The second case, FTC v. Anderson, 631 F.2d 741 (D.C. Cir. 1979), confirms this holding. In Anderson, the FTC moved to enforce six administrative subpoenas served upon respondents in connection with an FTC adjudication. The respondents were concerned that the FTC would use the subpoenaed materials in connection with other administrative proceedings or investigations either before the FTC or other agencies, in violation of the discovery rules ordinarily applicable to those proceedings as well as their right to Due Process. They sought to require the FTC to provide them with notice prior to making such use or disclosure of the materials. The court first noted that "to the extent . . . respondents are concerned about the use of subpoenaed documents as evidence in another administrative proceeding, their objections should be raised before the appropriate judicial officer presiding in that proceeding." Id. at 747 (emphasis added). To the extent that the respondents were concerned that the subpoenaed material would be used as general background information or for investigatory leads, the Anderson court concluded that respondents had no right to notice prior to such use of the information. "The Constitution does not require that a respondent in an administrative proceeding be aware of all evidence, information and leads to which opposing counsel might have access." Id. at 748.
This authority persuasively suggests that the proper forum for Grant Thornton to raise its concerns about the use of the San Jacinto materials is the Sunbelt court itself.
The Court of Appeals has held that the only appropriate task for the enforcing trial court is to determine the enforceability of the RTC subpoenas, as distinguished from the use that can be made of the subpoenaed information. "The enforcement court's function is limited to determining 'if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.'" Id. at 745 (quoting United States v. Morton Salt Co., 338 U.S. 632, 652 (1950)). As discussed in the May 1 Memorandum, Grant Thornton has no persuasive claim that the subpoenas are defective in any of these three areas. "Any other defects in the agency's procedures may be considered only in the context of an appeal from the final decision of the agency in the adjudicative proceeding," id., or in the circumstances of this case, only in the context of a motion in the Sunbelt case.
Therefore, Grant Thornton will be given twenty-one days from the date of this Memorandum and Order to file a motion for appropriate relief from the Sunbelt court, during which time the notice requirement contained in the May 1 Order shall remain in effect. If such a motion is filed within twenty-one days, the notice requirement shall remain in effect until such time as the motion is resolved by the Sunbelt court. At such time as the motion is resolved by that court, or in the event that no such motion is filed within twenty-one days, the May 1 Order shall be modified, by operation of law and without any further Order of this Court, in the following respect only: The third paragraph of the Order, which imposes on the RTC a duty to provide Grant Thornton with ten days' written notice of any disclosure to the FDIC of the materials responsive to the San Jacinto subpoena, will be VACATED.
IT IS SO ORDERED.
DATED: June 8, 1992
LOUIS F. OBERDORFER
United States District Judge