Drummond Company, Inc. v. Conrad & Scherer, LLP, 885 F.3d 1324

Collingsworth, a partner at Conrad & Scherer (C&S), led Alien Tort Statute suits in which witnesses later were revealed to have received undisclosed payments; Drummond defeated those suits and sued C&S and Collingsworth for defamation based on public letters.
In the defamation case, discovery revealed previously-undisclosed witness payments (to El Tigre, Samario, Blanco), including monthly payments routed through intermediaries and third-party payments arranged or facilitated by Collingsworth.
Drummond moved for sanctions and invoked the crime-fraud exception to pierce C&S/Collingsworth’s assertions of attorney-client privilege and work-product protection for communications and materials related to witness payments and related litigation strategy.
The district court found a prima facie showing of fraud on the court, witness bribery, and suborning perjury, applied the crime-fraud exception to certain categories of communications/work product, and appointed a special master for in camera, document-by-document review.
C&S obtained interlocutory permission to appeal two certified questions under 28 U.S.C. § 1292(b); the Eleventh Circuit declined to review the agency-imputation factual question but affirmed that the crime-fraud exception may defeat work-product protection when the attorney (or firm) engaged in wrongdoing even if the client is innocent.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether interlocutory review proper of district court’s imputation of partner Collingsworth’s intent to C&S under agency principles for crime-fraud application	The district court’s imputation was factually and legally supported; appeal appropriate to resolve controlling legal question	C&S argued agency imputation was improper and the certified question presented a pure legal issue for interlocutory review	Court declined to review: issue is fact-specific (not a pure legal question) and interlocutory review under §1292(b) was improvidently granted as to this question
Whether the crime-fraud exception can defeat attorney work-product protection when the attorney/firm engaged in crime or fraud but the client was innocent	Drummond: attorney misconduct alone can vitiate work-product protection; disclosure warranted for materials made/used to further fraud	C&S: an innocent client’s interest in secrecy bars piercing work product; client should not be punished for counsel’s misconduct	Court held crime-fraud exception may overcome work-product protection based on attorney misconduct even if client is innocent; remanded for in camera review to identify documents made in furtherance of or closely related to the fraud

In re Grand Jury Investigation, 842 F.2d 1223 (11th Cir.) (articulates two-part test for crime-fraud exception)
Zolin v. United States, 491 U.S. 554 (1989) (crime-fraud exception removes privilege when communications further crime/fraud)
Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386 (11th Cir.) (work-product doctrine and applicability of crime-fraud exception to work product)
Parrott v. Wilson, 707 F.2d 1262 (11th Cir.) (attorney misconduct can vitiate work-product protection)
Moody v. I.R.S., 654 F.2d 795 (D.C. Cir.) (balancing approach to whether innocent client’s interests outweigh disclosure after attorney misconduct)
In re Impounded Case (Law Firm), 879 F.2d 1211 (3d Cir.) (permitting crime-fraud exception to overcome work product for law-firm criminal activity)
In re Doe, 662 F.2d 1073 (4th Cir.) (crime-fraud exception allowed disclosure of attorney work product when lawyer committed fraud)