Kolon Industries Argues DOJ Improperly Subpoenaed Foreign Documents in Trade Secret Criminal Action - Fourth Circuit Disagrees

A shout out to our friends at "The Blog of Legal Times" - which is identified as an ALM Publication. They do a great job blogging about legal issues and they focused our attention on a fascinating issue that was just decided by the Fourth Circuit on June 15th.

The issue? Whether the lower court erred by not quashing a subpoena served by the Department of Justice on DuPont for documents DuPont possesses and controls only because they were provided to DuPont by Kolon in civil litigation between those companies over data and trade secrets stolen by a former DuPont employee who went to work for Kolon.

Kolon's attorneys argued that the government shirked traditional means of obtaining foreign documents, including through the use of mutual legal assistance treaties. Kolon’s attorneys alleged prosecutors unfairly piggybacked on DuPont in the civil suit, scooping up documents that would have been outside the scope of the grand jury.

The three-judge appeals court panel disagreed, reasoning that the government’s “substantial interaction” with DuPont does not reveal that prosecutors were directing the company’s civil discovery.

Last July, Senior Judge Robert Payne of the U.S. District Court for the Eastern District of Virginia ruled the government’s interaction with DuPont was not improper. Payne said the subpoenas trumped the civil protective order that guided the sharing of information in the litigation.