Chats Deemed Evidence|in Tech Antitrust Case

     SAN FRANCISCO (CN) – A high-tech employee’s secretly recorded conversations are fair game as evidence in a civil antitrust lawsuit, the Ninth Circuit ruled Thursday.
     Employee John Doe had appealed a federal court’s denial of his motion to quash a subpoena for his secretly taped conversations, which were recorded by the FBI as part of an antitrust probe into the disk-drive industry.
     Lead plaintiff Dell requested the records for evidence in an antitrust class action against Toshiba Samsung Storage Technology, Hitachi LG Data Storage and other alleged co-conspirators.
     Doe worked for one of the defendants in the Dell case, but his identity and employer remain under seal.
     In 2011, Hitachi LG pleaded guilty for its role in a price-fixing conspiracy in the optical disk-drive market and paid a $21.1 million fine, according to a Justice Department report.
     In a separate civil lawsuit over disk drive antitrust claims, a class of direct purchasers settled for $37.9 million and was awarded $13 million in attorneys’ fees in July.
     Doe, who is not a party in Dell’s lawsuit, objected to DOJ’s decision to release the evidence, arguing the records were protected under a rule that safeguards the secrecy of grand jury proceedings.
     The DOJ initially objected to releasing the evidence on those grounds but later agreed to produce the records under the terms of a protective order.
     Doe further contended the secret recordings would “seriously harm or possibly destroy his personal and professional reputation and quite possibly deprive him of his livelihood.”
     However, the district court and Ninth Circuit found that because the conversations were recorded two months before a grand jury was convened, the records were not grand jury materials per se.
     “Doe has not demonstrated that the tape recordings and transcripts were a product of the grand jury’s investigation, much less that their revelation would compromise the integrity of the grand jury’s deliberative process,” Circuit Judge Milan Smith Jr. wrote for the panel in the Sept. 10 ruling.
     The panel rejected Doe’s arguments that the district court failed to properly uphold the grand jury secrecy rule and noted that Doe’s attorney was invited to participate in a negotiated protective order as part of a deal to release the records.
     The panel affirmed the district court’s denial of Doe’s motion to quash the subpoena.
     Doe’s attorney, Sean P. O’Shea of O’Shea Partners in New York, did not immediately return a request for comment.

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