May 16, 2011
The Compliance Week article, "Justice Department Targets Foreign Documents in Antitrust Probe" reviewed the Department of Justice's tactic of retrieving foreign documents through subpoenas of law firms, involved in related civil suits. The article discussed the DOJ's investigation of alleged price-fixing in liquid crystal displays, targeting electronic industry leaders, many headquartered in Asia.
"'This is the first time I can recall that the Justice Department issued subpoenas to the law firm of a party as a way of getting foreign documents that they otherwise would not be able to get,' says Richard Donovan, a partner of Kelley Drye & Warren, who co-chairs the firm's antitrust and trade regulations practice group."
"Criminal defense lawyers have always been aware of the risk that the government could obtain foreign documents that come into the United States. 'This case just confirms that, once the documents are here, the government has the ability to get them,' says Donovan."
The article also discussed the DOJ's case against AU Optronics, a Taiwan-based LCD maker, which thus far, has not settled the case.
"AUO is also facing a parallel civil class action. The Ninth Circuit decision could put AUO at a disadvantage in both cases, if documents in the Justice Department's possession make its case stronger, says Donovan. A guilty plea or conviction could ultimately make the civil case harder to defend, as well, because plaintiffs' attorneys would be able to point to the criminal case as proof of guilt, he says."