February 12, 2019

UK judge denies litigants permission to turn documents over to US authorities pursuant to grand jury subpoena

The judge presiding over civil litigation between subsidiaries of Hewlett Packard Enterprise in an English court has denied the parties’ application for permission to provide to the FBI copies of documents and witness statements disclosed by defendants during the course of the UK litigation.  The parties seeking permission to turn over the documents argued that they were under compulsion to do so pursuant to an October 2018 grand jury subpoena from the US District Court for the Northern District of California, addressed to the Custodian of Records of Hewlett Packard Enterprise.  The court explained that under English law, the requested materials cannot be released without the court’s permission.  Mr. Justice Hildyard of the High Court of Justice concluded that neither prong of the standard for releasing the documents for collateral use had been met, as the applicants had neither demonstrated “special circumstances which constitute cogent and persuasive reasons” for the documents’ release, nor shown that the release or modification would “not occasion injustice to the person giving disclosure.”  In formulating his opinion, Justice Hildyard also weighed the importance of the materials to the US criminal case, the scope of the subpoena, and the legal status of the applicants as subsidiaries of the subpoenaed party.  He noted that indictments in the case had been issued, and one of the criminal cases fully prosecuted, without the requested documents.  Ultimately, the court failed to see sufficient necessity or urgency to outweigh the public policy underlying the prohibition against collateral use of the documents and witness statements.