In Re Grand Jury Subpoena, 662 F.3d 65

A federal grand jury subpoena directed to the custodian of records at the Doe Law Office sought records of Mr. S’s November 20, 2007 real estate purchase.
Doe produced the documents after obtaining verbal consent from Mr. S to comply with the subpoena.
Mr. S later retained separate counsel and claimed the subpoenaed documents were privileged, leading the USAO to seal the documents pending resolution.
Mr. S moved to quash the subpoena, arguing attorney-client privilege and, as an alternate basis, a Fifth Amendment privilege against production.
The magistrate judge conducted an in camera review and held no privilege attached; the district court then affirmed after its own in camera review.
The First Circuit reviews privilege rulings de novo on questions of law, with factual findings reviewed for clear error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does attorney-client privilege attach to the subpoenaed documents?	S asserts documents were confidential legal communications via a real estate attorney.	Government contends documents lack confidential legal-advisory purpose and thus are not privileged.	No privilege attached; blanket assertion insufficient; documents not shown to seek/provide legal advice.
Was the in camera review appropriate before establishing privilege?	In camera review required crime-fraud showing before privilege analysis.	In camera review is proper to determine privilege scope and applicability, independent of crime-fraud showing.	In camera review proper and within district court's discretion; not conditioned on crime-fraud threshold.
Does Fisher v. United States support quashing through a combination of privileges?	Fisher-based reasoning supports shielding documents via mixed Fifth Amendment and attorney-client privilege.	Fisher does not apply because there is no showing that documents were tendered for obtaining legal advice or confidential.	Fisher does not apply; no privilege established for any subpoenaed document.
What is the proper burden of proof for attorney-client privilege here?	S believes a prima facie showing suffices.	Burden lies on the proponent to show privilege applying to specific documents; blanket claim is insufficient.	No privilege established; even assuming prima facie standard, proffer failed to identify confidential or legal-advisory documents.

Upjohn Co. v. United States, 449 U.S. 383 (1981) (confidentiality essential to attorney-client communications)
Fisher v. United States, 425 U.S. 391 (1976) (testimony and self-incrimination limits on production; Fisher test)
Hubbell, 530 U.S. 27 (2000) (production of documents can be testimonial and incriminating)
In re Keeper of the Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16 (1st Cir. 2003) (attorney-client privilege scope and burden; common-law principles applied)
In re Keeper of the Records, 348 F.3d 22 (1st Cir. 2003) (clarifies burden and application of privilege)
In re Grand Jury Proceedings, 616 F.3d 1172 (10th Cir. 2010) (document-by-document privilege assessment required)
In re Grand Jury Subpoena, 831 F.2d 225 (11th Cir. 1987) (attorney-client privilege not covering non-confidential closing documents)
United States v. Davis, 636 F.2d 1028 (5th Cir. 1981) (attorney acts as scrivener; non-privileged if not providing legal advice)