May 10, 2010

DOJ Presses Law Firms in LCD Price-Fixing Probe

by Mike Scarcella
The National Law Journal

The U.S. Department of Justice's broad investigation into price-fixing by the LCD screen industry has netted more than $860 million in fines and resulted in criminal charges against nearly a dozen executives.

But DOJ's effort to go after additional screen makers, including Toshiba Corp., has resulted in a showdown with White & Case, Nossaman and other law firms over company documents.

The information the government says it wants to show a criminal grand jury is in the U.S. law offices of plaintiffs' and defense firms embroiled in civil litigation involving the targeted companies. Rather than negotiate the release of the documents through foreign court systems, including Japan and Taiwan, prosecutors subpoenaed law firms representing the companies.

The firms claim prosecutors are unfairly trying to piggyback on civil discovery and shirking long-standing DOJ procedure on acquiring foreign documents. In February, a federal judge in San Francisco ruled against the department, saying the grand jury's reach does not extend to the foreign evidence -- even though the documents are in the United States. The Justice Department is now seeking help from the 9th U.S. Circuit Court of Appeals.

Although the appellate case remains under seal, the dispute -- portions of which have been made public in the civil litigation -- has drawn the attention of the white-collar defense and antitrust bars. "This is the first time where DOJ is really going after information that came into this country that it otherwise wouldn't ordinarily be able to get," said Kelley Drye & Warren partner Richard Donovan, who co-chairs the firm's antitrust and trade regulation practice group.

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