Golden Gate University Law Review


This comment compares the Fourth, Eleventh, and Ninth Circuits' per se rule with the Second Circuit's balancing approach. It concludes that the courts adopting the per se rule made unwarranted findings by overstating the reach of protective orders by construing them as improper "de facto" grants of immunity. The courts also understated the retained power of a grand jury by declining to recognize that even when a protective order exists, a grand jury can still call witnesses, have a court compel testimony, or use leaked information for prosecution even though it is sealed.s Further, these courts could have applied a balancing approach without experiencing the problems they suggest such an approach creates.

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