In Re: Grand Jury Subpoena
909 F.3d 26
| 1st Cir. | 2018Background
- A federal grand jury in the District of Rhode Island subpoenaed records from the Rhode Island Department of Education and Training (the Department), including communications between Department staff and Department legal counsel.
- The Department moved to quash the subpoena as to confidential attorney-client communications; the district court denied the motion, holding categorically that the attorney-client privilege does not shield government–client communications from a federal grand jury.
- The district court declined to certify the privilege question for interlocutory appeal under 28 U.S.C. § 1292(b).
- Rather than defy the order and risk contempt to obtain appellate review, the Department sought an advisory writ of mandamus from the First Circuit under the All Writs Act.
- The First Circuit considered whether advisory mandamus was appropriate and then addressed whether a state government may invoke the attorney-client privilege against a federal grand jury subpoena.
- The First Circuit concluded the district court’s categorical rule was improper and granted the writ, directing the district court to vacate its denial of the motion to quash.
Issues
| Issue | Plaintiff's Argument (Department) | Defendant's Argument (United States) | Held |
|---|---|---|---|
| Availability of advisory mandamus | Mandamus appropriate because issue is unsettled, substantial, likely to recur, and ordinary appeal is impaired for a state agency unwilling to risk contempt | The Department can obtain review by defying the subpoena and appealing a contempt order | Advisory mandamus granted: criteria met (unsettled, important, likely to recur, and effective review potentially impaired for a state actor) |
| Whether attorney-client privilege applies to state governments in response to a federal grand jury subpoena | State privilege should be recognized; public-client status alone does not defeat the privilege; federalism supports deference to state-law privilege choices | A categorical rule: attorney-client privilege does not apply to government–client communications in grand jury proceedings, particularly when investigating public officials | Rejected categorical rule; state may assert attorney-client privilege in response to a federal grand jury subpoena (subject to case-specific analysis) |
| Whether public nature of government client defeats privilege | Public client status does not automatically preclude privilege; Jicarilla supports governmental assertion of privilege in civil matters and informs analysis here | Governmental duties and public interest in transparency outweigh privilege when grand jury seeks evidence | Court held public nature alone is insufficient to deny privilege; context matters (e.g., subpoenas targeting suspected official wrongdoing may alter balance) |
| Whether subpoenas investigating alleged official misconduct automatically overcome privilege | Department indicated it would not assert privilege if investigation targeted state misconduct; court declined to decide the standard for such targeted subpoenas without record showing | United States argued heightened interest in investigating potential crimes by government officials justifies denying privilege | Court declined to decide the precise standard for subpoenas targeted at official wrongdoing, leaving open that such a showing might overcome privilege; but categorical denial is improper |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (establishes purpose and scope of attorney-client privilege to encourage full communication)
- United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011) (government may invoke attorney-client privilege in civil litigation; objectives of privilege apply to governmental clients)
- In re Grand Jury Investigation, 399 F.3d 527 (2d Cir. 2005) (recognized that state officials may assert privilege against grand jury subpoenas)
- In re A Witness Before the Special Grand Jury 2000-2, 288 F.3d 289 (7th Cir. 2002) (held attorney-client privilege inapplicable to certain government communications in grand jury context)
- In re Bruce R. Lindsey (Grand Jury Testimony), 158 F.3d 1263 (D.C. Cir. 1998) (denied privilege for federal actor communications before grand jury)
- In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997) (found no privilege for certain government communications in grand jury investigation)
- In re Keeper of the Records (XYZ Corp.), 348 F.3d 16 (1st Cir. 2003) (describes privilege as well-established but to be narrowly construed)