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The 9th U.S. Circuit Court of Appeals on Thursday reversed the contempt charge of a former Samsung Semiconductor Inc. employee who refused to turn over documents during an antitrust investigation. In a unanimous decision, a three-judge panel ruled that the government had no grounds to go after Devin Cole’s documents. Officials said the paperwork was pertinent to an investigation into price-fixing in the computer memory chips industry. “We conclude that, because of the breadth of the subpoena and the government’s limited knowledge of the documents sought, [Cole's] production of the documents would have a testimonial aspect protected by the Fifth Amendment right against self-incrimination,” Senior Judge William Canby Jr. wrote. Senior Judge Procter Hug Jr. and Judge Richard Tallman concurred. Underlying the decision is a Department of Justice investigation into alleged price-fixing in worldwide sales of dynamic random access memory chips, known as DRAM. The government may have evidence that several memory chip competitors regularly discussed chip prices before selling them to manufacturers. Cole met with FBI agents in April 2003 after another witness told officials Cole was involved in chip price negotiations. Cole told authorities how competing companies shared pricing information. He also told investigators that he retained e-mails to supervisors detailing the conversations but did not keep any company records, notes or documents, according to the ruling. But investigators still demanded documents relating to meetings about prices. The government subpoenaed Cole, who cited the Fifth Amendment and refused to testify without immunity. Cole filed a motion to quash, which a district court denied. Cole’s attorney, Walter Brown Jr. of Orrick, Herrington & Sutcliffe, declined to comment. But Canby ruled in Thursday’s opinion that the government overstepped its bounds during its aggressive pursuit of the paperwork. “The breadth of the subpoena in this case far exceeded the government’s knowledge about the actual documents that [Cole] created or possessed during his former employment and that he retained after he terminated his employment,” Canby wrote. Canby added that authorities failed to draft a detailed subpoena that identified documents it “could establish with reasonable particularity.” Cole is not named in the opinion, but The Recorder and another media organizations have identified him. Andrea Limmer, an attorney with the U.S. Department of Justice’s antitrust division, had not seen the opinion early Thursday. When she was told of the decision, she refused to comment. The case now returns to district court where a judge will decide if Cole deserves “act of production immunity.” That type of immunity protects people from charges related to handing over papers, as opposed to charges stemming from what is contained in documents. A former prosecutor said the decision isn’t a tough blow for the government, adding that they can gather evidence in these cases with “adequate planning.” “The Ninth Circuit set a relatively high bar for the government if they want to target someone who has incriminating documents,” said Patrick Robbins, a partner with Shearman & Sterling. Robbins, who is not involved in the case, said the opinion “makes sure that at the time the subpoena is issued, the government must show it has independent facts establishing the existence and possession of the document.” The court filed a redacted ruling that did not name the participants since some hearings were heard behind closed doors. The case is In re Grand Jury Subpoena, 04 C.D.O.S. 8132.

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