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On Thursday, the 9th U.S. Circuit Court of Appeals explored whether the Fifth Amendment protects someone in possession of corporate documents. Too bad no one got to hear it. The case file is sealed, and when the matter came up for argument, the three-judge panel — Senior Judges Procter Hug Jr. and William Canby Jr. and Judge Richard Tallman — cleared the court. Grand Jury Subpoena v. United States, 04-10097, involves an ongoing Department of Justice investigation into alleged price-fixing in worldwide sales of dynamic random access memory chips, also known as DRAM, according to court documents. No indictments have been revealed, but the government has evidence that several competitors regularly communicated about the prices at which they would sell DRAM to computer manufacturers. Several chipmakers are under the microscope. In April 2003, a federal grand jury subpoenaed Devin Cole, a former employee of Samsung Semiconductor Inc., a San Jose, Calif., affiliate of Korea’s Samsung Electronics and a major player in the DRAM market. When Cole was ordered to turn over certain documents, he refused, citing the Fifth Amendment. U.S. District Judge Susan Illston held Cole in contempt, prompting the appeal. White-collar lawyers say the law surrounding production of incriminating documents is not completely settled. “It’s an esoteric and evolving area,” said Leo Cunningham, a former federal prosecutor and partner at Wilson Sonsini Goodrich & Rosati. Prior to the subpoena, federal authorities interviewed Cole at his Texas home. Cole described discussions he had with Samsung’s competitors pursuant to a “range pact” that included “the ranges of prices, where each competitor felt that others would price in the range, and whether each competitor would move prices ‘a little’ or ‘a lot,’” according to court documents obtained before the case file was closed to the public. The government subpoenaed Cole, who refused to testify without immunity. Investigators postponed his grand jury appearance but still demanded documents related to the range pact meetings. Cole filed a motion to quash, which Illston denied. Illston also held that the contents of the documents are not protected by the Fifth Amendment, but that Cole’s act of producing them might be. “Where the ‘existence and location of the papers are a foregone conclusion and the [individual] adds little or nothing to the sum total of the government’s information by conceding that he in fact has the papers,’ the Fifth Amendment is not implicated … [because] the act of complying with the subpoena has no testimonial aspect or incriminating effect,” reads Illston’s ruling. Illston also found that the documents will have no “adverse effect” on Cole because the DOJ has plenty of other “potentially” incriminating evidence on price-fixing. Brown appealed Illston’s ruling in February, and the 9th Circuit granted expedited review. Defense attorney Cristina Arguedas of Emeryville, Calif.’s Arguedas, Cassman & Headley pointed out that individuals usually ask for “active production immunity,” which protects them from charges related to actually handing over papers, as opposed to charges stemming from what is contained within the documents. Because Illston ordered Cole to turn over his papers, “I’m assuming that the judge has looked at them and decided that they’re not incriminating,” said Arguedas, who is not involved in the case. Besides fighting over the Fifth Amendment issues, lawyers in the case have also argued over whether the case should be revealed to the public. At one point, Cole’s lawyer, Walter Brown Jr. of Orrick, Herrington & Sutcliffe, asked the 9th Circuit to restrain the Reuters news agency from publishing a piece on the case. The court denied Brown’s request. Earlier this month, government lawyers filed an emergency motion asking the 9th Circuit to open Thursday’s proceeding to the public. Normally, the DOJ likes to keep all grand jury matters behind closed doors, saying it’s unethical to discuss them. Samsung asked Cole to return the documents. A spokeswoman said the company had no comment. Brown and government attorneys also refused to comment Thursday, citing the seal on the case. DOJ antitrust lawyers Niall Lynch, Andrea Limmer and Nathanael Cousins have been assigned to the case. The 9th Circuit hears about two cases each year in closed courtrooms. If it decides to publish its ruling, the court could file a redacted version that discusses the issue without naming participants. The DOJ appears to have a wide-ranging, serious interest in the DRAM market. In December, the government announced that Alfred Censullo, an executive at Micron Technology Inc., had agreed to plead guilty to obstructing a grand jury investigation. After the grand jury issued a subpoena for documents, Censullo altered handwritten notes about pricing and sales at his company as well as competitors.

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