The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiffs International Union of Operating Engineers, Local 132 Pension Plan, and Chemical Valley Pension Fund of West Virginia bring this Motion to Compel under Federal Rule of Civil Procedure 45(c)(2)(B)(i) against the United States Department of Justice ("DOJ" or "Government") and Attorney General Eric J. Holder, Jr. Plaintiffs seek the production of documents responsive to two subpoenas duces tecum issued on September 2, 2009 and September 4, 2009 in the underlying federal securities fraud action, In re Micron Technology, Inc. Securities Litigation, No. CV-06-085-BLW, filed in the District of Idaho. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, the Motion to Compel is denied.
The present Motion to Compel arises out of a pending federal securities class action in the District Court for the District of Idaho against Micron Technology, Inc. and three of its senior officers ("Idaho litigation"). The defendants in that action are alleged to have engaged in a massive price-fixing conspiracy between 1999 and 2002 which involved the issuance of false and misleading statements to Micron's investors. Mot. to Compel at 2. In October 2002, Micron entered into a leniency program with DOJ's Antitrust Division, which had been investigating the price-fixing conspiracy for some time. Micron admitted to a criminal violation of the Sherman Antitrust Act and agreed to cooperate with the investigation in exchange for amnesty from prosecution. The three senior Micron officers named as defendants in the Idaho litigation accordingly testified under immunity about their involvement in the price-fixing scheme, and several other Micron employees were interviewed as well.
In the present Motion to Compel, Plaintiffs seek all records of interviews of Micron employees in connection with the DOJ's investigation for use in the Idaho litigation. Id. at 9. Plaintiffs first attempted to secure the production of these records from the defendants in the Idaho litigation, but have come to understand that they do not have copies of the records in their possession. Id. at 7. Next, Plaintiffs contacted counsel for Gary Swanson, an executive of Hynix Semiconductor who was indicted in the Northern District of California on related charges of price-fixing in 2008, because the DOJ had released all of the records in question to Mr. Swanson's counsel during his trial. However, Mr. Swanson's counsel informed Plaintiffs that the copies of the records he had received were subject to a protective order, and that he had returned all copies to the DOJ. Plaintiffs finally issued two subpoenas duces tecum--one to the Office of Legal Counsel, DOJ and one to the Attorney General--to obtain the records of interviews on September 2, 2009 and September 4, 2009.
On November 6, 2009, Assistant Attorney General Christine Varney informed Plaintiffs' counsel that the DOJ would not authorize production of the requested documents, citing the Department's Touhy regulations, 28 C.F.R. §§ 16.21-.29. In light of the approaching deadline for discovery in the Idaho litigation, Plaintiffs filed the present Motion to Compel in this Court pursuant to Fed. R. Civ. P. 45(c)(2)(B)(i).
On January 6, 2010, the Court informed the parties that, due to its busy schedule, it would be able to issue a decision but not a memorandum order before the close of discovery in the Idaho litigation on January 22, 2010. The Court denied the Motion to Compel by minute order dated January 14, 2010. In response to Plaintiffs' request that the Court issue a Memorandum Order setting forth the basis for the January 14, 2010 Minute Order, the Court gave notice on January 26, 2010 that it would issue this Memorandum Order. Order (Jan. 26, 2010) [Dkt. No. 15].
Fed. R. .Civ. P. 45 governs the issuance of subpoenas and, relatedly, motions to compel. Fed. R. Civ. P. 45 (2010). This is true even when the object of the subpoena is a federal agency. Watts v. Sec. Exchange Comm., 482 F.3d 501, 508 (D.C. Cir. 2007) (explaining that "a challenge to an agency's refusal to comply with a Rule 45 subpoena should proceed and be treated not as an APA action but as a Rule 45 motion to compel").
Rule 45(c)(2)(B)(i) provides that a person commanded to produce documents may object to the subpoena, but that the serving party may then move the Court for an order compelling production. When a motion to compel is filed, Fed. R. Civ. P. 45 "requires that district courts quash subpoenas that call for privileged matter or would cause an undue burden." Watts, 482 F.3d at 509. The burden lies on the party resisting discovery to show that the documents requested are either unduly burdensome or privileged. See Alexander v. Fed. Bureau of Investigation, 192 F.R.D. 42, 46 (D.D.C. 2000).
The DOJ first argues that production of the records sought by Plaintiffs would be unduly burdensome, both because Plaintiffs' request is duplicative and cumulative and because production would place a considerable burden on the agency. The DOJ next argues that the records are subject to the federal law enforcement privilege.*fn1
A. Plaintiffs' Request Is Unduly Burdensome
The DOJ objects to the subpoenas on the grounds that production of the interview memoranda would be unduly burdensome. The "undue burden" test requires district courts to be "generally sensitive" to the costs imposed on third parties by subpoenas duces tecum. Watts, 482 F.3d at 509. Fed. R. Civ. P. 26(b)(2)(C) further requires the court to limit discovery where "(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the ...