Attorney-Client Issues - Attorney Work Product

United States v. Deloitte LLP, 610 F.3d 129 (D.C.Cir. 2010)

Deloitte a public accounting firm that prepared an audit of certain corporate tax structures. The D.C. Circuit discusses the work product doctrine in this context, ultimately holding that the work product doctrine applied.

United States v. Thompson (The Willams Companies Inc.), 562 F.3d 387 (D.C. Cir. 2009)

The corporation was under investigation by DOJ for price manipulation in the natural gas marget and wire fraud. The corporation retained an outside law firm to conduct an internal investigation. Eventually, the results of the investigation were furnished to the government with a cover letter that provided that it was confidential and should not be disclosed to any other party or entity. The corporation was given a deferred prosecution agreement. An individual in the corporation was indicted. He sought the results of the internal investigation under Rule 16 and Brady. The D.C. Circuit held that the trial court was required to review the material and furnish any information to the defendant that would qualify as discoverable under Rule 16 or Brady. The corporation’s desire to maintain the confidentiality of the internal investigation did not trump the defendant’s due process and Rule 16 rights.

In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180 (2nd Cir. 2007)

A defense attorney instructed his client to surreptitiously record another person in order to create evidence of the client’s innocence. The AUSA learned about this tape and subpoenaed it to the grand jury. The Second Circuit held that the work product doctrine did not preclude enforcement of the subpoena. The tape constituted “fact” work product, as opposed to “mental impressions, conclusions, opinions, or legal theories” work product. The former is entitled to less production.

In re Grand Jury Proceedings, 492 F.3d 976 (8th Cir. 2007)

Even if the government succeeds in persuading the court that certain documents were covered by the crime-fraud exception to the attorney-client privilege, the work product privilege survives, assuming the attorney was an unwitting participant in the client’s fraud.

United States v. Roxworthy, 457 F.3d 590 (6th Cir. 2006)

The work product privilege has both an objective and a subjective component. The memorandum in this case satisfied both prongs. The memo was written by KPMG, the audit and consulting firm after their client filed a tax return that reported a transaction that generated a $112 million loss for tax purposes only. KPMG prepared the memorandum, believing that this would ultimately trigger litigation from the IRS and the memorandum was written in anticipation of that litigation.

In re Grand Jury Subpoena (Mark Torf/Torf Environmental Management), 357 F.3d 900 (9th Cir. 2004)

An attorney who was retained by a company under DOJ investigation, hired an environmental consultant. The consultant interviewed witnesses and helped prepare the defense to the charges. In an effort to avoid prosecution, the company submitted numerous documents to the EPA, some of which were prepared by the consultant. The grand jury then subpoenaed all the consultant’s work papers, records and documents. The Ninth Circuit held that the consultant properly withheld from production the documents that were prepared in anticipation of litigation and at the request of the attorney. Other documents, which were prepared in connection with the EPA consent order, qualified under the “dual purpose” doctrine for protection, as well. That is, these documents, though prepared for more than one purpose, were still prepared “because of” the prospect of litigation. See also United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998).

In re Grand Jury Proceedings (John Doe Co.) v. United States, 350 F.3d 299 (2d Cir. 2003)

Counsel for the defendant corporation wrote a letter to the government, explaining that the conduct of the corporation being investigated had been the subject of a prior conversation with ATF agents who told the corporation’s lawyers that the corporate conduct was lawful. This did not amount to a waiver of the work product privilege and the corporation could not be compelled to produce the attorneys’ notes from those prior meetings. There was nothing “unfair” about allowing the corporation to retain the privilege, because the disclosure by counsel was not submitted to the fact finder (i.e., the grand jury), but only to the AUSA who was handling the prosecution.

In re: Sealed Case, 146 F.3d 881 (D.C. Cir. 1998)

The work product privilege turns not on whether a specific claim existed, but instead, on whether, under all the circumstances, the lawyer prepared the materials “in anticipation of litigation.” For a document to meet this standard, the lawyer must at least have had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable.

In re Grand Jury Proceedings, 219 F.3d 175 (2d Cir. 2000)

A corporation was being investigated for illegal firearms sales. The corporation explicitly sought to enforce the attorney-client privilege. An officer of the corporation, however, testified at the grand jury about certain dealings of the corporation and procedures that the corporation adopted in light of counsel’s advice; and the corporation’s in-house counsel also testified, but refused to disclose certain notes that were taken by his assistant during a meeting about which he testified (claiming that this was work product). The government claimed that the corporation waived both the attorney-client and the work product privileges. The Second Circuit held that waiver may be found where the privilege holder asserts a claim that in fairness requires examination of protected communications. Fairness comes into play when a party attempts to use the privilege both as a sword and as a shield. In other words, a party cannot partially disclose privileged communications or affirmatively rely on privileged communications to support its claim or defense and then shield the underlying communications from scrutiny by the opposing party. A quintessential example of waiver is the advice of counsel defense. Circumstances may also dictate that there has been a partial waiver. The issue is more complicated in the context of corporate entities, because, as here, the corporation may assert the privilege, but an officer – acting in an individual capacity – may inadvertently (or, for that matter, intentionally) waive the privilege. This case contains a thorough review of the jurisprudence of waiver and corporate attorney-client privilege and work product privilege issues.

United States v. Horn, 29 F.3d 754 (1st Cir. 1994)

Discovery in this massive bank fraud prosecution was being maintained at an independent document management firm. The defense was allowed to review documents at that location and to make copies. Unbeknownst to the defense, however, whenever the employees made a copy of a document for the defense, an extra copy was made for the government. The defense learned about this and a moved to seal the government’s copies. Prior to a hearing on this motion, the government made an extra copy of their set of the defendant’s documents. The lower court held that this amounted to serious governmental misconduct, violating the defendant’s right to due process, to the effective assistance of counsel and also violated the work product doctrine. 811 F.Supp. 739 (D.N.H. 1992). The appellate court agreed with this assessment, but reversed the lower court’s award of attorney’s fees and costs.

In re Grand Jury Proceedings (U.S. v. Under Seal), 33 F.3d 342 (4th Cir. 1994)

Though the government offered sufficient evidence to pierce the attorney client privilege based on the crime-fraud exception, the information offered by the government was not sufficient to pierce the work product privilege which the attorney asserted. In order to pierce the work product privilege (unlike the attorney client privilege), the government must show that the attorney was aware that his advice was being used by the client to further a crime.

In re Grand Jury Proceedings, 43 F.3d 966 (5th Cir. 1994)

The attorney work product privilege may be asserted by the defendant, or the attorney, and includes, among other things, the attorney’s notes of interviews of third parties. Moreover, the privilege extends to proceedings which are closely related to the pending proceeding, such as a forfeiture action and a criminal proceeding. The test for whether a third party communication is privileged by the work product doctrine is whether the information recorded by the attorney is “obtained or prepared by an adversary’s counsel with an eye toward litigation.” Hickman v. Taylor, 329 U.S. 495 (1947).

In re Sealed Case, 146 F.3d 881 (D.C.Cir. 1998)

In order to raise the work product privilege, it is not necessary that the attorney establish that there was litigation then pending, or that there was a specific claim being considered by the attorney. All that is required is that the material was prepared “in anticipation of litigation,” as opposed to documents that were prepared in the ordinary course of business (e.g., to deal with issues such as interest rates, payment schedules, or collateral).

In re Sealed Case, 29 F.3d 715 (D.C.Cir. 1994)

An individual who had been engaged in illegal transactions with Libya sought counsel from an attorney. No grand jury had been empanelled to investigate the individual’s transactions at that time. Nevertheless, the work product doctrine covered these conversations, because the doctrine applies to work performed, “with an eye toward litigation.” In determining, whether the materials in the lawyer’s files are protected by the work product privilege, the testing question is whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. The privilege may be asserted not only by a lawyer, but also by his client.

United States v. Paxson, 861 F.2d 730 (D.C.Cir. 1988)

A defendant and his attorney attended an interview with government antitrust lawyers during which the attorney took notes. At the trial of another defendant, the defendant on trial subpoenaed the attorney’s notes of this interview. The Court holds that the work product doctrine prevents disclosure of these notes. Absent a showing of necessity and unavailability by other means, such notes constitute work product and cannot be the subject of compelled disclosure.