In re: Agrand Jury Subpoena

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 31, 2021
Decided July 19, 2022
Before
DIANE S. SYKES, Chief Judge
JOEL M. FLAUM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
No. 20-3050
IN THE MATTER OF A GRAND JURY SUBPOENA
Appeal from the United States
District Court for the Western
District of Wisconsin.
No. 19-mj-64-jdp
James D. Peterson,
Chief Judge.
O R D E R
A federal grand jury issued a subpoena to a corporation, which moved to quash.
The district court’s chief judge issued several opinions addressing the corporation’s
concerns, which principally relate to the production of information held in electronic
form. The judge ordered the search to be narrowed using file extensions and key words.
The corporation, still dissatisfied, has appealed. We issued a stay of enforcement pend-
ing the resolution of the appeal.
The rule of secrecy with respect to grand jury matters, see Fed. R. Crim. P. 6(e);
Butterworth v. Smith, 494 U.S. 624 (1990); makes it impossible for us to do more than hint
at the nature of the parties’ dispute. More information would permit readers to identify
the nature of the investigation and its subject. The district court issued some opinions
under seal, but we do not think that an appropriate step for a court of appeals. And

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No. 20-3050 Page 2
selectively blacking out words, sentences, or paragraphs in an appellate decision, as is
sometimes done, would make our disposition of this appeal incoherent. (Page 5 of the
corporation’s redacted brief gives the flavor of the problem.) We have elected, therefore,
to omit almost all descriptive matter and focus on the single subject on which we disa-
gree with the district judge’s approach.
After the appeal was filed, the term of the grand jury that issued the subpoena
expired. A new grand jury has renewed the subpoena, however, so the appeal is not
moot. In re Grand Jury Proceeding, 961 F.3d 138, 150–51 (2d Cir. 2020). The nature of the
contested issues has not changed.
The corporation furnished some information in response to the subpoena. The
prosecutor, on behalf of the grand jury, sought more, and the district judge largely
sided with the prosecutor. Because the subpoena calls for production of documents
from an electronic database that contains millions of records, everyone agreed that a
means had to be found to winnow the information. The subpoena is broadly worded, to
ensure that it turns up all relevant information, and the presumption of enforceability
means that the district judge did not abuse his discretion in concluding that the grand
jury is entitled to insist that the corporation sift through its files to locate those that are
responsive. See, e.g., McLane Co. v. EEOC, 137 S. Ct. 1159, 1167 (2017); United States v. R.
Enterprises, Inc., 498 U.S. 292, 298–99 (1991). Yet many files within the database will not
be responsive (even arguably). Searches of electronic data usually turn up lots of rec-
ords that the searcher does not want to see. Any lawyer who has conducted a search for
a statute or a judicial decision on Westlaw or Lexis understands this problem. A key-
word search seeking one or two opinions may turn up one or two hundred.
So the keywords and file extensions must be revised as the search continues, in
order to narrow the field. The district judge heard argument from the parties and speci-
fied key words and extensions that the corporation must use. Thinking with some rea-
son that the corporation was overstating both the cost and difficulty of compliance, and
underproducing records that it had already found, the district judge insisted that the
corporation conduct a search using the keywords and extensions that the judge had se-
lected, and turn over everything that matches the judge’s criteria.
We appreciate the judge’s frustration with what he perceived to be a combina-
tion of foot-dragging and crying wolf. But we think that the judge halted this iterative
process too soon. A subpoena, as enforced, must be reasonable. Fed. R. Crim. P. 17(c)(2);
R. Enterprises, Inc., 498 U.S. at 299–302. We’ve mentioned lawyers’ common experience
that keyword searches turn up all manner of dross and must be refined. The problem
with the district court’s order is that it does not include any means of refining the search
to avoid overbreadth and focus on responsive documents. That’s true not only of key

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No. 20-3050 Page 3
words but also of extensions. For example, the subpoena requires the corporation to
turn over all pictures of a particular facility. The judge ordered it to produce all files
with extensions such as gif or jpeg, which designate pictures. The result is bound to in-
clude pictures of Christmas decorations, employees showing off new babies, calibration
tests of machinery unrelated to the investigation, and many other categories of docu-
ments that are not responsive to the subpoena.
The judge understandably does not trust the corporation to do the sifting and
does not want to spend the time needed to work through the initial set of results and re-
fine the search terms himself. This seems to us a good occasion for referring the matter
to a magistrate judge or a special master, who can give the judge a sense of how the
search terms can be refined to increase the ratio of relevant to irrelevant hits.
The order enforcing the subpoena is affirmed, but the case is remanded for fur-
ther proceedings consistent with this order to take further prudent steps to see how the
designated terms work and exclude the production of documents that are manifestly
unresponsive to the subpoena.

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