The opinion of the court was delivered by: HERLANDS
The petitioner, Local 627, Provision Salesmen and Distributor Union, A.F.L.-C.I.O., has moved to quash or modify a subpoena duces tecum addressed to it by a federal grand jury investigating alleged violations of the federal antitrust laws. The grand jury is seeking to determine whether there were unlawful agreements among manufacturers, jobbers, retailers and unions, including Local 627, in the processed meat industry, to fix prices, allocate customers, maintain boycotts and to enforce these restraints (Government's supplemental affidavit, para. 1).
The Local asserts four grounds for its motion: (1) the items sought by the subpoena duces tecum are not relevant to the subject of the grand jury investigation; (2) the subpoena duces tecum demands records covering a period of eighteen years, an unreasonably long period of time; (3) the demand for the production of records is not sufficiently specific and, therefore, places the Local in danger of being held in contempt; and (4) the Local argues, that, because it allowed Government agents to examine some of its files for a period of six weeks and then delivered many documents to the grand jury, the subpoena is oppressive and constitutes an unreasonable search and seizure.
A subpoena duces tecum may be so sweeping that it violates the Fourth Amendment's prohibition of unreasonable searches. F.T.C. v. American Tobacco Co., 264 U.S. 298, 44 S. Ct. 336, 68 L. Ed. 696 (1924); Hale v. Henkel, 201 U.S. 43, 76, 26 S. Ct. 370, 50 L. Ed. 652 (1906); McMann v. S.E.C., 87 F.2d 377, 379, 109 A.L.R. 1445 (2d Cir. 1937), cert. denied sub nom. McMann v. Engel, 301 U.S. 684, 57 S. Ct. 785, 81 L. Ed. 1342 (1937). If a subpoena duces tecum does constitute a violation of the Fourth Amendment, the courts may quash or modify it. To avoid such judicial action, the subpoena must be reasonable. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208, 66 S. Ct. 494, 90 L. Ed. 614 (1946); Hale v. Henkel 201 U.S. 43, 76, 26 S. Ct. 370, 50 L. Ed. 652 (1906).
The courts have found that reasonableness, in this context, has three components. The subpoena duces tecum may command only the production of things relevant to the investigation being pursued. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208-209, 66 S. Ct. 494, 90 L. Ed. 614 (1946); Brown v. United States, 276 U.S. 134, 143, 48 S. Ct. 288, 72 L. Ed. 500 (1928); F.T.C. v. American Tobacco Co., 264 U.S. 298, 306-307, 44 S. Ct. 336, 68 L. Ed. 696 (1923); Hale v. Henkel, 201 U.S. 43, 77, 26 S. Ct. 370, 50 L. Ed. 652 (1960). The subpoena must specify the things to be produced with reasonable particularity. Brown v. United States, 276 U.S. 134, 143, 44 S. Ct. 336, 68 L. Ed. 696 (1928); Hale v. Henkel, 201 U.S. 43, 77, 26 S. Ct. 370, 50 L. Ed. 652 (1906). The subpoena may order the production of records covering only a reasonable period of time. Brown v. United States, 276 U.S. 134, 143, 44 S. Ct. 336, 68 L. Ed. 696 (1928); Schwimmer v. United States, 232 F.2d 855, 863 (8th Cir. 1956), cert. denied 352 U.S. 833, 77 S. Ct. 48, 1 L. Ed. 2d 52 (1956); United States v. Medical Society, 26 F.Supp. 55, 57 (D.D.C.1938); In re Eastman Kodak, 7 F.R.D. 760, 763, 765 (W.D.N.Y.1947).
The requirement of relevance is satisfied by a showing that there is a relation between the documents which must be produced and the purpose of the inquiry. Application of Certain Chinese Family Benevolent and District Ass'ns, 19 F.R.D. 97, 101 (N.D.Cal.1956).
What is required by way of particularity in describing the things which must be produced is 'specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry.' Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209, 66 S. Ct. 494 (1946). A subpoena apparently meets this standard if it distinguishes between relevant and irrelevant material. Some cases have applied the additional requirement that the subpoena must specify the documents to be produced, or the subjects to which they relate, with enough precision to make compliance with the subpoena possible. Brown v. United States, 276 U.S. 134, 143, 48 S. Ct. 288, 72 L. Ed. 500 (1928); In re Eastman Kodak, 7 F.R.D. 760, 763 (W.D.N.Y. 1947); In re Motions to Quash Subpoenas, 30 F.Supp. 527, 531 (S.D.Cal.1939).
The facts of each case determine whether the period of time covered by the records sought is reasonable. The period of time with which the records deal should bear some relation to the subject of the investigation. Hale v. Henkel, 201 U.S. 43, 76-77, 26 S. Ct. 370, 50 L. Ed. 652 (1906) (subpoena requiring company to produce records from the date of its organization held bad); Application of Certain Chinese Family Benevolent and District Ass'ns, 19 F.R.D. 97, 98, 101 (N.D.Cal.1956) (subpoena requiring associations to produce records for the entire period of the associations' existence quashed).
In Application of Linen Supply Companies, 15 F.R.D. 115, 119 (S.D.N.Y.1953), the court said that the following factors might affect the reasonableness of the period covered: 'the type and extent of the investigation; the materiality of the subject matter to the type of investigation; the particularity with which the documents are described; the good faith of the party demanding the broad coverage; (and) a showing of the need for such extended coverage.'
The subpoena need not be limited to calling for records from a period within the statute of limitations. The grand jury should be able to determine whether there were illegal activities which were begun before the statutory period and continued within it. Application of Linen Supply Companies, 15 F.R.D. 115, 119 (S.D.N.Y.1953); In re United Shoe Machinery Corp., 73 F.Supp. 207, 211 (D.Mass.1947).
However, as the period of time covered by the subpoena lengthens, the particularity with which the documents are described must increase. Application of Linen Supply Companies, 15 F.R.D. 115, 118 (S.D.N.Y.1953); In re United Shoe Machinery Corp., 73 F.Supp. 207, 211 (D.Mass.1947).
The courts have sustained subpoenas duces tecum covering long periods of time: In re United Shoe Machinery Corp., 73 F.Supp. 207 (D.Mass.1947) (27 years); Petition of Borden Co., 75 F.Supp. 857, 864 (N.D.Ill.1948) (20 years); Application of Radio Corp. of America, 13 F.R.D. 167 (S.D.N.Y.1952) (18 years).
On the other hand, some cases have held similar periods too extensive: In re Grand Jury Investigation (General Motors Corp.), 174 F.Supp. 393 (S.D.N.Y.1959) (11-30 years); In re United Last Co., 7 F.R.D. 759 (D.Mass.1947) (14-20 years).
Other courts have expressed the belief that the outer limit should generally be set at ten years: In re Eastman Kodak Co., 7 F.R.D. 760, 766 (W.D.N.Y.1947); In re United Shoe Machinery Corp., 7 F.R.D. 756 (D.Mass.1947).
It is, of course, impossible to define exactly the protection given by the Fourth Amendment without listing the precise facts of each pertinent case. However, Justice Holmes described in general terms what the Fourth Amendment forbids as 'a search through all the respondents' records, relevant or irrelevant, in the hope that something will turn up.' F.T.C. v. American Tobacco Co., 264 U.S. 298, 306, 44 S. Ct. 336, 337, 68 L. Ed. 696 (1924).
The rules governing the subpoena duces tecum must be applied realistically. Whether a crime has been committed, who has committed it and what the crime is are normally determined at the end of the grand jury's proceedings, and not at the beginning. Blair v. United States, 250 U.S. 273, 282, 39 S. Ct. 468, 63 L. Ed. 979 (1919). It would cripple the administration of justice to require the grand jury to demand documents with a particularity 'which presupposes an accurate knowledge of such papers, which the tribunal desiring the papers would probably rarely, if ever, have.' Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 554, 28 S. Ct. 178, 182, 52 L. Ed. 327 (1908).
Moreover, because the grand jury may have to develop evidence for the first time, the requirements of relevance and materiality are certainly less strict in a grand jury investigation than at a trial. Schwimmer v. United States, 232 F.2d 855, 862-863 (8th Cir. ...