In re Grand Jury Subpoena, No. 16-03-217, United States of America, Appellee,
Glassdoor, Inc., Movant-Appellant.
and Submitted October 16, 2017 San Francisco, California
from the United States District Court for the District of
Arizona Diane J. Humetewa, District Judge, Presiding D.C. No.
D. Miller (argued), Nicola C. Menaldo, and Todd M. Hinnen,
Perkins Coie LLP, Seattle, Washington, for Movant-Appellant.
C. Stone (argued) and Gary M. Restaino, Assistant United
States Attorneys; Krissa M. Lanham, Deputy Appellate Chief;
Elizabeth A. Strange, Acting United States Attorney; United
States Attorney's Office, Phoenix, Arizona; for Appellee.
Wimmer and Jadzia Butler, Covington & Burling LLP,
Washington, D.C.; Sophia Cope, Electronic Frontier
Foundation, San Francisco, California; for Amici Curiae
Center for Democracy & Technology, Committee for Justice,
Electronic Frontier Foundation, Media Alliance, and Public
Before: Richard C. Tallman and Consuelo M. Callahan, Circuit
Judges, and David A. Ezra, [*] District Judge.
/ First Amendment Rights
panel affirmed the district court's denial of Glassdoor,
Inc.'s motion to quash a grand jury subpoena duces
tecum that would require Glassdoor to disclose the
identifying information of eight users who posted anonymous
reviews about another company on its Internet website; and
sustained the contempt order entered to enforce it.
argued that complying with the subpoena would violate its
users' First Amendment rights to associational privacy
and anonymous speech.
panel held that to determine whether the subpoena violated
the First Amendment, the proper test on the record of this
case was the good-faith test the Supreme Court established in
Branzburg v. Hayes, 408 U.S. 665 (1972). The panel
rejected Glassdoor's contention that the district court
should have applied the compelling-interest test laid out in
Bursey v. United States, 466 F.2d 1059 (9th Cir.
panel held that because Glassdoor had neither alleged nor
established bad faith on the part of the government in its
investigation, under Branzburg, enforcement of the
subpoena duces tecum to identify potential witnesses
in aid of its inquiries did not violate the First Amendment
rights of Glassdoor's uses. The panel further held that
Glassdoor had not shown that any other evidence was necessary
to rule on its objection.
TALLMAN, CIRCUIT JUDGE:
Inc. appeals the denial of its motion to quash a grand jury
subpoena duces tecum that would require Glassdoor to
disclose the identifying information of eight users who
posted anonymous reviews about another company on its
Internet website, Glassdoor.com. Glassdoor argues that
complying with the subpoena would violate its users'
First Amendment rights to associational privacy and anonymous
speech. It contends that the district court should have
applied the compelling-interest test we laid out in
Bursey v. United States, 466 F.2d 1059 (9th Cir.
1972), to determine whether the subpoena violates the First
Amendment. The government argues that the good-faith test the
Supreme Court established in Branzburg v. Hayes, 408
U.S. 665 (1972), controls.
agree that on the record before us, Branzburg, which
was decided the day before we issued Bursey,
supplies the proper test. Because there is no evidence that
the grand jury's investigation of fraud, waste, and abuse
by a third party in performing a government contract is being
conducted in bad faith, we affirm the denial of the motion to
quash, and we sustain the contempt order entered to enforce
Inc. operates Glassdoor.com, a website where employers
promote their companies to potential employees, and employees
post reviews of what it's like to work at their
companies. In these reviews, employees rate their employers
in a variety of categories and describe workplace
environments, salaries, and interviewing practices.
reviews on Glassdoor.com are anonymous. But to post reviews,
users must first provide Glassdoor with their e-mail
addresses, though the addresses do not appear on the site.
Before Glassdoor accepts a posting, the contributor is warned
his or her information may be disclosed when required by law,
either through a subpoena or court order. Glassdoor's
the company generally "do[es] not disclose . . .
individual account or usage data to third parties." But
"will disclose data if we believe in good faith that
such disclosure is necessary . . . to comply with relevant
laws or to respond to subpoenas or warrants or legal process
also inform users that Glassdoor reserves the right "to
take appropriate action to protect the anonymity of [its]
users against the enforcement of subpoenas or other
information requests." The company is attempting to do
that here in the face of an ongoing federal criminal
Arizona federal grand jury is investigating a government
contractor that administers two Department of Veterans
Affairs (VA) healthcare programs. The grand jury is examining
whether the subject of its inquiries has committed wire fraud
and misused government funds in violation of 18 U.S.C. §
1343 and 18 U.S.C. § 641, respectively.
March 2017, current and former employees of the subject
company had posted 125 reviews on Glassdoor.com. Many of the
reviews criticize the subject's management and business
practices. For example, one anonymous employee wrote that it
"[m]anipulate[s] the system to make money unethically
off of veterans/VA." Another asserted that
"[t]here's a real disconnect between how this
program runs and how the VA thinks the program runs."
March 6, 2017, the government served Glassdoor with a
subpoena that ordered it to provide the grand jury with
"Company Reviews" and associated "reviewer
information" for every review of the subject on
Glassdoor.com. The requested "reviewer information"
included "internet protocol addresses and logs
associated with all reviews including date and time of post,
username, email address, resume, billing information such as
first name, last name, credit card information, billing
address, payment history, and any additional contact
information available." The government attached eight
"exemplar reviews, " all of which were critical of
notified the government that it believed "the scope of
the request raise[d] issues associated with the First
Amendment." The government agreed to limit its request
to the reviewer information associated with just the eight
exemplar reviews, and it told Glassdoor the information would
enable it "to contact those reviewers as third party
witnesses to certain business practices relevant to [its]
investigation." Glassdoor maintained its objection to
the subpoena and filed a motion to quash.
district court denied Glassdoor's motion. It held that
Bursey's compelling-interest test was
inapplicable because the facts of Bursey were
distinguishable. Applying Branzburg, it held that
Glassdoor had not shown the grand jury investigation was
being conducted in bad faith, and it ordered Glassdoor to
respond to the subpoena on pain of contempt.
chose to bring a recalcitrant witness appeal rather than
comply with the subpoena. 28 U.S.C. § 1826. The parties
stipulated to a judgment of civil contempt and sanctions of
$5, 000 per day until Glassdoor fully complies by producing
the requested information. The district court entered an
order in accordance with the stipulation of contumacious
conduct and stayed enforcement of the monetary sanctions
pending resolution of this appeal. We have jurisdiction under
28 U.S.C. § 1291.
review the district court's denial of a motion to quash a
grand jury subpoena, as well as the district court's
imposition of contempt sanctions, for abuse of discretion.
See In re Grand Jury Subpoena (Mark Torf/Torf Envtl.
Mgmt.), 357 F.3d 900, 906 (9th Cir. 2004) (denial of
motion to quash); In re Grand Jury Proceedings, 33
F.3d 1060, 1061 (9th Cir. 1994) (per curiam) (contempt).
questions of law and fact contained within the analysis of a
civil contempt proceeding" are reviewed de
novo. In re M.H., 648 F.3d 1067, 1070-71 (9th
Cir. 2011). The district court's "underlying factual
findings are reviewed for clear error." Mathews v.
Chevron Corp., 362 F.3d 1172, 1180 (9th Cir. 2004).
argues that the grand jury subpoena violates its users'
First Amendment rights in two ways: it infringes on their
right to associational privacy and their right to anonymous
in the First Amendment is a "right to associate for the
purpose of engaging in those activities protected by the
First Amendment." Roberts v. United States
Jaycees, 468 U.S. 609, 618 (1984). Because there is a
"vital relationship between freedom to associate and
privacy in one's associations, " in some
circumstances, forcing organizations to disclose their
members' identities ...