The 9th Circ.'s Rule 6(e) Test For Private Antitrust Cases

Law360, NEW YORK, October 9, 2015—In In re Optical Disk Drive Antitrust Litigation ("ODD"),[1] the Ninth Circuit recently clarified when materials created as part of a criminal government investigation should be barred from disclosure in civil litigation under Federal Rule of Criminal Procedure 6(e). While over half of the federal circuits that have analyzed the issue coalesced behind the fact-intensive "effect test" (described herein), the Ninth Circuit decisively announced in ODD that it would not endorse that test. Instead, the Ninth Circuit created a new, ostensibly straightforward, approach to determine whether materials are protected under Rule 6(e).

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