CA9: GJ subpoena for emails was unreasonably overbroad and should have been quashed

A grand jury subpoena for the Oregon former governor’s emails was overbroad and made no effort to limit the emails under investigation. Therefore, the district court should have quashed. In re Grand Jury Subpoena; United States v. Kitzhaber, 2016 U.S. App. LEXIS 12860 (9th Cir. July 13, 2016):

R. Enterprises held that where “a subpoena is challenged on relevancy grounds, the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.” 498 U.S. at 301. But R. Enterprises does not suggest that by self-defining the “category of materials” sought as broadly as possible, the government insulates its subpoenas from review. Otherwise, when the government seeks all material of a broad generic type that a party possesses — every piece of paper in a corporation’s files, for example, or, as in this case, all of an individual’s emails over a several year period — a reasonable possibility that some of that material would be relevant would suffice to validate the subpoena, no matter how vast its sweep, and no matter the degree to which the subpoena would reach private material of no pertinence to the grand jury’s inquiry.
The reference to “category of materials” in R. Enterprises confirms that subpoenas typically designate for production a discrete “category” of materials. Where one does not, and there is a broad, identifiable “category of materials the Government seeks [that] will [not] produce information relevant to the general subject of the grand jury’s investigation,” id. — here, for example, material about Governor Kitzhaber’s children or medical care — the subpoena is unreasonably broad.

Our decisions in In re Horn, 976 F.2d 1314 (9th Cir. 1992), and United States v. Bergeson, 425 F.3d 1221 (9th Cir. 2005), confirm this understanding of R. Enterprises. They make clear that a subpoena may be quashed when no effort is made to tailor the request to the investigation, even if some fraction of the material the subpoena seeks is relevant. See Bergeson, 425 F.3d at 1225-26; Horn, 976 F.2d at 1318-19.

The government’s subpoena in this case is much broader than the subpoena we rejected in Horn. In Horn, the subpoena at issue sought all information regarding the financial transactions of a lawyer’s clients. 976 F.2d at 1319. Here, there is no subject matter limitation whatsoever on the documents sought. The subpoena seeks, among other things, all of Kitzhaber’s e-mail communication over several years, with no limitation on the content, senders, or recipients of the e-mails. As Kitzhaber points out, the subpoena would net, for instance, “emails between [himself] and his son’s physicians or teachers.”

Notably, the government attached to the subpoena a non-exhaustive list of the kinds of documents that might be included in the data it sought. But the subpoena explicitly did not limit itself to that material, so that list did not narrow the scope of the subpoena itself. At the same time, by indicating the government’s particular investigatory goals, the list confirms that a narrowing of the subpoena in accord with that list would not compromise the investigation.

Because the government did not in any manner tailor its request to relevant material, the subpoena was unreasonably broad and within the district court’s supervisory power, and responsibility, to quash.