USCA Case #18-3071

Document #1784227

Filed: 04/23/2019

Page 1 of 3

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 18-3071

September Term, 2018
1:18-gj-00041-BAH
Filed On: April 23, 2019

In re: Grand Jury Subpoena,
BEFORE:

Tatel and Griffith, Circuit Judges; Williams, Senior Circuit Judge
ORDER

A federal grand jury seeks information from a corporation (“the Corporation”)
owned by Country A and issued a subpoena directing the Corporation to produce that
information. After the Corporation refused to comply (and moved unsuccessfully to
quash the subpoena), the district court held the Corporation in contempt. The
Corporation appealed, and we affirmed. See In re Grand Jury Subpoena, 912 F.3d 623
(D.C. Cir. 2019), cert. denied, No. 18-948, 2019 WL 286879 (U.S. Mar. 25, 2019).
Although our opinion affirming the contempt citation was publicly filed (albeit with
redactions), virtually all filings in this appeal have remained under seal, in light of “our
criminal justice system’s longstanding commitment to grand jury secrecy.” In re Grand
Jury Subpoena, Judith Miller (Miller I), 438 F.3d 1138, 1139 (D.C. Cir. 2006) (citing
Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218 n.9 (1979)). The Reporters
Committee for Freedom of the Press, however, argues that that seal may be lifted – at
least, in part. We agree.
As we have previously noted, “[g]rand jury secrecy is not unyielding.” In re
Grand Jury Subpoena, Judith Miller (Miller II), 493 F.3d 152, 154 (D.C. Cir. 2007)
(alteration in original) (quoting Miller I, 438 F.3d at 1140). The Federal Rules of
Criminal Procedure require that “[r]ecords, orders, and subpoenas relating to grand-jury
proceedings” remain sealed only “to the extent and as long as necessary to prevent the
unauthorized disclosure of a matter occurring before a grand jury.” Fed. R. Crim. P.
6(e)(6) (emphasis added); see Miller II, 493 F.3d at 154. Thus, where the Rules
authorize us to do so, we may – and should – release any information so long as it
does not reveal the “‘identities of witnesses or jurors, the substance of testimony’ as
well as actual transcripts, ‘the strategy or direction of the investigation, the deliberations
or questions of jurors, and the like.’” In re Motions of Dow Jones & Co., 142 F.3d 496,
499-500 (D.C. Cir. 1998) (quoting SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382
(D.C. Cir. 1980) (en banc)) (defining the phrase “matters occurring before the grand
jury”).
The merits briefs and the oral argument transcript. The government and the
Corporation have proposed redactions. But we have “rigorously scrutinized” those
redactions, Reporter Committee’s Statement of the Status of Related Matters 2 (Jan.
28, 2019), Doc. No. 1770420, and identified additional information that appears unlikely
to reveal a matter occurring before the grand jury. That information is listed in the
Appendix to this order filed under seal. Accordingly, we order the government to show
cause why the information listed in the Appendix should not be unsealed.

 USCA Case #18-3071

Document #1784227

Filed: 04/23/2019

Page 2 of 3

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 18-3071

September Term, 2018

In addition, we note that part of the oral argument in this case was conducted ex
parte, see Oral Arg. Tr. 37-44, and that the government has proposed redacting the
transcript from that portion of the oral argument in its entirety. This appears to go too
far. We order the government to either (1) propose tailored redactions to the transcript
from the ex parte session, or (2) explain why no information from that portion of the
transcript can be unsealed.
The record. “On appeals from the district court,” we “ordinarily” refer a motion “to
unseal any portion of the record” to the district court. See D.C. Cir. R. 47.1(c). We do
so here – with one exception: We order the government to propose redactions to the
letter cited in the concurrence. See Grand Jury Subpoena, 912 F.3d at 637 (Williams,
J., concurring) (citing Letter from Government to Corporation’s Counsel (July 30, 2018),
J.A. 31). We do so for two reasons. Unsealing the letter will permit the public to, first,
see (in part) “what informed [our] reasoning,” Miller I, 438 F.3d at 1140, and, second,
scrutinize the government’s assertion of power, see Grand Jury Subpoena, 912 F.3d at
635 (Williams, J., concurring) (explaining that the government’s “theory of minimum
contacts is . . . a bit outdated”).
The Corporation’s Identity. The Reporters Committee “requests that the
government and the [Corporation] refrain from redacting [the Corporation’s name] in
[the] unsealed filings.” Reply in Further Support of Mot. to Unseal 2 (Feb. 6, 2019),
Doc. No. 1772302. To date, however, the Corporation’s identity has not been publicly
revealed; this information, therefore, has not “lost its character as Rule 6(e) material,” In
re Motions of Dow Jones & Co., 142 F.3d 496, 505 (D.C. Cir. 1998) (quoting In re
North, 16 F.3d 1234, 1245 (D.C. Cir. 1994)), and must, for that reason, remain under
seal, see Fed. R. Crim. P. 6(e)(6).
Other Motions. The Reporters Committee has requested only “the briefs, record,
and oral argument transcript.” Mot. to Unseal 23 (Jan. 9, 2019), Doc. No. 1767730.
But we believe the benefits of public scrutiny extend to other filings as well –
particularly, to the government’s attempt to bar the Corporation’s attorneys from publicly
identifying themselves. We therefore order the government to propose redactions to
the (1) Government’s Opposition to Motion for Leave to File Public Response to Motion
to Unseal (Jan. 23, 2019); (2) Government’s Response to Supplemental Reply in
Support of Motion for Leave to File Public Response to Motion to Unseal (Jan. 28,
2019); (3) Government’s Supplemental Response to Motion for Leave to File Public
Response to Motion to Unseal (Jan. 31, 2019); (4) Country A’s Motion to File Publicly
its Response to the Reporters Committee For Freedom of the Press’s Motion to Unseal
(Jan. 16, 2019); (5) Country A’s Reply Supporting its Motion for Leave to File Response
Not Under Seal (Jan. 23, 2019); and (6) Country A’s Supplement to Reply Brief
Supporting its Motion for Leave to File Response Not Under Seal (Jan. 25, 2019).1 The
government need not propose redactions to any appendixes.
1

Although the captions of documents 4, 5, and 6 refer to “Country A,” the
documents were filed by the Corporation.

 USCA Case #18-3071

Document #1784227

Filed: 04/23/2019

Page 3 of 3

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 18-3071

September Term, 2018

In light of the foregoing, it is, on the court’s own motion,
ORDERED that the government show cause, by 4:00 p.m. on Friday, May 3,
2019, why the information listed in the Appendix to this order should not be unsealed.
The Corporation is permitted, but not required, to file a response by 4:00 p.m. on
Tuesday, May 7, 2019. The government and the Corporation are directed to file any
submission(s) under seal. It is
FURTHER ORDERED that the government either (i) propose redactions to the
oral argument transcript from the ex parte session, see Oral Arg. Tr. 37-44, or (ii)
explain why no information from that session can be unsealed. The government is
directed to file, by 4:00 p.m. on Friday, May 3, 2019, a status update and an estimate
for when the government can file the proposed redactions or explanation. The
government is directed to file its submissions under seal and ex parte. It is
FURTHER ORDERED that the Reporters Committee’s request to unseal the
record be referred to the district court. See D.C. Cir. R. 47.1(c). The Clerk is directed
to transmit a copy of this order to the district court. It is
FURTHER ORDERED that, by 4:00 p.m. on Friday, May 3, 2019, the
government propose redactions to the (1) Government’s Opposition to Motion for Leave
to File Public Response to Motion to Unseal (Jan. 23, 2019); (2) Government’s
Response to Supplemental Reply in Support of Motion for Leave to File Public
Response to Motion to Unseal (Jan. 28, 2019); (3) Government’s Supplemental
Response to Motion for Leave to File Public Response to Motion to Unseal (Jan. 31,
2019); (4) Country A’s Motion to File Publicly its Response to the Reporters Committee
For Freedom of the Press’s Motion to Unseal (Jan. 16, 2019); (5) Country A’s Reply
Supporting its Motion for Leave to File Response Not Under Seal (Jan. 23, 2019); and
(6) Country A’s Supplement to Reply Brief Supporting its Motion for Leave to File
Response Not Under Seal (Jan. 25, 2019). The Corporation is permitted, but not
required, to file a response by 4:00 p.m. on Tuesday, May 7, 2019. The government
need not file proposed redactions to any appendixes. The government and the
Corporation are directed to file any submission(s) under seal.

Per Curiam

FOR THE COURT:
Mark J. Langer, Clerk
BY:

/s/
Lynda M. Flippin
Deputy Clerk