Sunday, January 31, 2016

Case o' The Week: Justice is Blind, But DJs Should Take a Peek - In re Grand Jury Investigation -- Attorney-Client Privilege and the Crime Fraud Exception

 Should a district court actually look at attorney-client docs, before deciding they are not privileged and compelling their disclosure?

“Yep,” holds the Ninth, in a very welcome case of first impression.
 In re Grand Jury Investigation, No. 15-50450 (9th Cir. Jan. 14, 2016) (Ord.), order and opinion available here.

NB: The opinion filed Jan. 14, 2016 was withdrawn so it could be redacted. See also 2016 WL 158595. The opinion on the Ninth’s web site appears redacted (compare it to the WL opinion), but this case should not be cited until clearly re-issued. 

Players: Decision by Judge Gould, joined by Judge Berzon and Sr. DJ Steeh III.

Facts: Appellant Corporation was a call center that marketed surgical devices. Id. at 4. The FDA began an investigation regarding the Corp.’s advertising. Id. 

Over time, three attorneys associated with the Corporation or medical centers corresponded with the FDA about the FDA’s warning letters. Id. The government alleged that these letters contained false statements designed to obstruct the FDA investigation. Id. 

The Feds caused grand jury subpoenas to be served on the three attorneys, under the crime-fraud exception to the attorney-client privilege. Id. at 4-5. The attorneys did not fully comply, the government moved to compel, and the district court granted the motion. 

The district court found that there was independent, non-privileged evidence that the lawyers’ services were obtained in furtherance of and sufficiently related to ongoing crimes. Id. The court did not, however, hold an in camera hearing, and did not review the disputed documents. Id.

Issue(s): Must “district courts . . .  review documents in camera before deciding whether they should be produced under the crime-fraud exception[?]” Id. at 7.

Held:We agree with the Sixth Circuit. While in camera review is not necessary during step one to establish a prima facie case that the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme, a district court must examine the individual documents themselves to determine that the specific attorney-client communications for which production is sought are ‘sufficiently related to’ and were made ‘in furtherance of the intended, or present, continuing illegality.’” Id. at 8 (internal citations and quotations omitted).

Of Note: This decision (once it is published) will be the first written opinion in the Ninth requiring in camera review of documents, potentially subject to the attorney-client privilege, before compelled disclosure. Id. at 7. Given the order of the court regarding redaction (with the redacted opinion that accompanies the order, and the odd Westlaw reference), use care in how you refer to In re Grand Jury Investigation in the short term. Hopefully, however, this welcome new Ninth rule will stick in the final version of the decision.

How to Use: This case involves civil attorneys entangled in a corporation’s alleged missteps. The holding, however, is of broader interest for indigent defense.  

This brief opinion lays out the two-step approach to evaluate whether counsel’s documents are subject to compelled disclosure over attorney-client privilege objections. Id. at 6 (discussing the first step: prima facie showing of crime-fraud, done without in camera review, and the second step: in-camera review of docs to see if they are sufficiently related to, and made in furtherance of, the illegality).

It is a thus a very good read for crim defense counsel. (It is considerably more fun to serve subpoenas, than to be served with one). In re Grand Jury is an important decision that explains how to evaluate attorney-client privilege, and adds a welcome layer of protection before Feds can snag our files. 

 Also mull the decision when defending a white collar case, when the Feds have built their case on the backs of corporate counsel. If this in camera procedure didn’t happen, those documents were improperly obtained and should remain privileged and out-of-bounds (we’ll argue).
For Further Reading: For a thoughtful discussion of this corner of law, see Bethany Lipman, Invoking the Crime Fraud Exception: Why Courts Should Heighten the Standard in Criminal Cases, available here

Image of “Confidential Document Attorney-Client Privilege” stamp from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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