On May 13, 2013, the US Court of Appeals for the Fifth Circuit in In re: Grand Jury Subpoenas issued an opinion vacating the district court's quashing subpoenas duces tecum in a grand jury investigation of two corporations based in Greece and remanded, holding that the companies were validly served with subpoenas and must respond to them.

This case arose when the US Coast Guard observed possible violations of federal law by a foreign-flagged ship at the Port of Houston. The ship was owned and operated by two corporations based in Greece. These companies entered into an agreement with the Coast Guard agreeing to facilitate and assist the US in serving federal grand jury subpoenas to records custodians employed by the corporations who are not in the US.

The US Government issued subpoenas duces tecum to defense counsel for the Greek companies, requesting that records custodians or other authorized, knowledgeable representatives appear at the grand jury and produce certain documents. The companies responded that because the records custodians were not personally served with the subpoenas in Greece, and because the US Government agreed to accept a business records stipulation instead of personal appearance, they were not obligated to produce the records custodians. Initially, the district court ordered the records custodians to appear, but after the companies moved for reconsideration, the court quashed the service of the subpoenas on the defense counsel.

The Fifth Circuit first rejected the companies' argument that it lacked appellate jurisdiction over the matter because of the procedural nature of the district court's order. The Fifth Circuit responded that the district court's order "excludes evidence," giving the court appellate jurisdiction.

On the merits, the Fifth Circuit found that the subpoenas were validly served on the corporations, a fact the corporations did not dispute. The Fifth Circuit further found that the agreement between the companies and the Coast Guard compelled the companies to produce the records custodians or show cause why they could not do so.

The Fifth Circuit rejected the corporations' argument that because the records custodians were not parties to the dispute, the agreement did not apply to them. The court relied on Wilson v. United States, which held that a request of a corporation is effectively a request to responsible officials of that corporation, making the records custodians subject to the properly served subpoenas.

Finally, the Fifth Circuit did not find in the record an agreement by the Government to forego the appearance of the records custodians as the corporations claimed. In fact, the Government had reiterated in correspondence with defense counsel that it did not waive the right to summon the custodians to appear before the grand jury.

In re: Grand Jury Subpoenas teaches that defense counsel should consider that even if foreign records custodians or other employees of a defending corporation are not personally served, they may be obligated to personally appear in response to a properly served subpoena.