Dell Gets Secret Tape Recordings, Transcripts

The eDiscovery Resource Center™ is Bloomberg BNA’s comprehensive research solution for litigators and in-house counsel who require authoritative guidance on the handling,...

By Tera Brostoff

Sept. 22 — Dell Inc. will get the secret tape recordings and transcripts of an employee who worked for a company that was the subject of a criminal investigation into alleged antitrust violations involving optical disk drives, pursuant to a Sept. 10 order from the Ninth Circuit.

Judge Milan D. Smith Jr. wasn't swayed by appellant John Doe 1's argument that the tape recordings weren't available because disclosing them would violate Federal Rule of Criminal Procedure 6(e), which prohibits the disclosure of ‘a matter occurring before the grand jury.' The recordings were prepared two months before a grand jury subpoenaed Doe during a criminal investigation that preceded the antirust litigation. However, Doe was never indicted.

“The subpoena at issue here seeks only to discover ‘recordings of conversations in which a present or former officer, director or employee of Defendant PLDS was one of the participants,' not what took place before the grand jury,” the court explained. “Indeed, as the district court noted, ‘Production of all material responsive to the subpoena…would not establish that any or all of those materials were ever presented to the grand jury, much less shed light on its inner workings.' ”

Dell Seeks Tape Recordings 

After the initial grand jury investigation concluded with a settlement, Dell and its co-plaintiffs sued certain optical disk drive manufacturers in a civil antitrust suit.

They subpoenaed the DOJ, seeking the recordings and transcripts of Doe's conversations. Doe moved to quash the subpoena, citing F.R.C.P. 6(e).

In addition, Doe argued a protective order wouldn't protect his interests. The district court denied his motion, noting the recordings were not ‘matters occurring before the grand jury.' Doe appealed.

Ninth Circuit Affirms That Recordings Aren't Protected 

The Ninth Circuit explained that the fundamental purpose of Rule 6(e) is to protect against disclosure of what takes place or is revealed in the grand jury room, but not to foreclose from disclosure the same information or documents which were presented to the grand jury.

Doe also argued that the lower court made unsupported factual findings about the creation and use of the recordings.

“The mere fact that the subpoenaed recordings were created as part of a criminal investigation using a cooperating witness acting under the FBI's supervision does not automatically trigger Rule 6(e) protection,” the court said.

The consensually recorded conversation occurred two months before the grand jury even issued a subpoena. The court also noted it was possible the grand jury might never have been empaneled.

“Doe has not demonstrated that the tape recordings and transcripts were a product of the grand jury's investigation, much less that their revelation would compromise the integrity of the grand jury's deliberative process,” the court said.

Judge Milan D. Smith Jr. wrote the order.

Sean F. O'Shea and Daniel M. Hibshoosh, of O'Shea Partners LLP in New York, represented Doe.

To contact the reporter on this story: Tera Brostoff in Washington at

To contact the editor responsible for this story: Carol Eoannou at

The full text of In re Optical Disk Drive Antitrust Litigation is available at