Criminal Practice – Grand Jury Queries Defense Team on Phony Document

In re: Grand Jury Subpoena Under Seal 1, 2 and 3 (Lawyers Weekly No. 001-176-17, 8 pp.) (Per Curiam) No. 16-4096, Aug. 18, 2017; USDC at Charlotte, N.C. (Conrad, J.) 4th Cir.

Holding: A grand jury investigating defendant’s provision of a fraudulent document may not ask a criminal defense team “what did the witness tell you,” as the government did not show that the crime-fraud exception allowed it to obtain this protected attorney opinion work-product; however, the 4th Circuit upholds the district court order allowing the grand jury to ask the defense team who gave it the fraudulent documents and how, specifically, did they give them to the team.

One Question Barred

Opinion work product represents the actual thoughts and impressions of the attorney, and is more scrupulously protected than fact work product. A party seeking to compel production of opinion work product under the crime-fraud exception must demonstrate attorney knowledge of or participation in the client’s crime or fraud, but no such showing is necessary to discover fact work-product privileged materials related to a client’s crime or fraud. Here, because the government does not claim the defense team was aware of defendant’s alleged crime or fraud, the reach of the grand jury’s subpoena under the crime-fraud exception is limited to fact work product.

In our view, Upjohn v. U.S., 449 U.S. 383 (1981), and Hickman v. Taylor, 329 U.S. 495 (1947), make clear that a lawyer’s recollection of a witness interview constitutes opinion work product entitled to heightened protections. It does not matter whether an attorney draws on her memories, as opposed to written notes, in recalling what was said; the privilege offers increased protection to both sources because both require disclosure of the attorney’s mental processes. We draw a line between asking an attorney to divulge facts – either noticed by or communicated to her – and asking an attorney to recall generally what was said in an interview.

In asking “what did [the witnesses] tell you?” the government seeks opinion work product. To answer this question, the defense team would have to disclose their recollections of witness statements and reveal what they deemed sufficiently important to remember from these discussions. This falls squarely within the category of opinion work product. Our decision in In re: Grand Jury Proceedings, John Doe, 102 F.3rd 748 (4th Cir. 1996), does not compel a different result.

Because the government’s third question seeks opinion work product and because the government does not assert the defense team was aware of the alleged crime or fraud, it may not rely on the crime-fraud exception to compel the defense team to answer the third question.

Two Questions Allowed

Questions one and two, on the other hand, target fact work product, which the government also seeks pursuant to the crime-fraud exception. To compel the defense team to answer questions one and two, it’s not necessary for the government to show that the defense team was aware of their client’s alleged bad acts.

The government provided ample evidence that the defendant likely engaged in perjury and production of a fraudulent document and that the proposed questions seeks information bearing a close relationship to that possible criminal and fraudulent activity – specifically, the identity of the source of those documents. The district court did not clearly err in concluding that the government made a prima facie showing of crime or fraud.

The government may ask the defense team, “Who gave you the fraudulent documents and how did they give them to you, specifically?” We reverse, however, that portion of the district court order compelling the defense team to answer the government’s third question and remand with instructions that the district court grant that portion of the motion to quash.

Affirmed in part, reversed in part and remanded with instructions.

Concurrence & Dissent

Niemeyer, J.: The district court reasoned that evidence – of what a third-party witness told the defense team when providing a fraudulent document – although part of the attorney’s work product, amounted only to historical fact that did not involve the attorney’s mental impressions or opinions. The court therefore concluded that because the inquiry was justified by the crime-fraud exception, the evidence could be obtained. I agree. Asking an attorney to recall what a witness told her about a specific document reveals at most a de minimis amount of attorney impression – namely, that the attorney presently believes she can remember a witness’s words.

I believe Hickman and its progeny favor disclosure of what are historical facts. At bottom, the subpoenaed testimony seeks only a transaction of the factual events involved, namely, what a third-party witness said about a fraudulent document that the witness was providing to the attorney. I would allow the grand jury to obtain the attorney’s testimony on the limited question of what the attorney was told by a witness about a specific document, as best the attorney can recollect. I would affirm the district court order.