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The Battle Between Grand Jury Subpoenas and Civil Protective Orders: The Circuit Splits Persist
By John F. Fatino
Cover Story columns.
In a battle between a federal grand jury subpoena and a civil protective order, which one would prevail? Perhaps it may come as a surprise, but the answer to this important question may turn on the federal circuit in which the dispute is pending. In June 2011 the U.S. Supreme Court had the opportunity to resolve this lingering conflict. It refused to tackle the issue, and thus the circuit split continues to persist. This article discusses the different rules employed by the federal courts of appeals in assessing the relationship between civil protective orders and grand jury subpoenas.1
A. Know the Rules
Rule 26(c)(1) of the Federal Rules of Civil Procedure provides: “A party or any person from whom discovery is sought may move for a protective order. … The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”2 This rule grants federal district courts broad disc
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