Under Seal 1 v. United States, 870 F.3d 312

Background

After a criminal conviction in the Western District of North Carolina, the government suspected an exhibit introduced by the defendant was a forgery after receiving a higher-quality copy from the defense team.
The government sought grand-jury interviews of the defendant’s attorney and investigator (the “Defense Team”); they declined, and the grand jury issued subpoenas for their testimony.
The Defense Team moved to quash the subpoenas asserting work-product protection; the defendant (with new counsel) intervened in support.
The government told the court it intended to ask three questions: (1) who gave the fraudulent documents; (2) how were they given; and (3) what did a specific witness tell you? The district court treated the requests as fact work product and found the crime-fraud exception applied, denying the motion to quash.
On appeal the court considered whether the requested testimony is fact or opinion work product and whether the crime-fraud exception permits compelled testimony.

Issues

Issue	Plaintiff's Argument (United States)	Defendant's Argument (Defense Team/Defendant)	Held
Whether subpoenaed testimony is fact or opinion work product	Questions about origins and delivery of documents are factual work product and discoverable under crime-fraud exception	Broad question asking “what did the witnesses tell you?” seeks attorney recollections/opinions and is opinion work product	Government may obtain who gave documents and how; may not compel broad recollection of what witnesses said (third question)
Whether crime-fraud exception applies to compel fact work product	Government made a prima facie showing the client engaged in fraud/perjury and that requested facts bear a close relationship to that scheme	The Defense Team argued the government failed to show the team’s knowledge or participation (but conceded not required for fact work product)	District court’s finding that the government made a prima facie showing was not clearly erroneous; exception applies to fact work product
Standard for compelling attorney recollections of witness statements	Recollection of witness statements can be compelled when they are factual and tied to alleged crime/fraud	Recollection of witness statements is opinion work product because it reveals attorney mental processes and impressions	Recollection about what witnesses told counsel is opinion work product and cannot be compelled absent proof of attorney knowledge/participation in fraud
Scope of permissible questioning under privilege doctrine	Narrow questions about source and transmission of documents are allowed	Broad questions asking for general recall of witness statements are improper	Affirmed in part (questions 1 & 2 allowed), reversed in part (question 3 barred)

Key Cases Cited

Upjohn Co. v. United States, 449 U.S. 383 (1981) (distinguishes protection for attorneys’ notes/memoranda and mental impressions from factual information obtained from witnesses)
Hickman v. Taylor, 329 U.S. 495 (1947) (establishes work-product protection and warns against forcing disclosure of attorney mental processes or recollections)
In re Grand Jury Proceedings #5 Empanelled January 28, 2004, 401 F.3d 247 (4th Cir. 2005) (opinion vs. fact work-product distinction; crime-fraud standard for opinion work product requires attorney knowledge/participation)
In re Grand Jury Proceedings, John Doe, 102 F.3d 748 (4th Cir. 1996) (fact work product may be compelled under crime-fraud exception; did not address attorney recollection as opinion work product)
Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999) (sets two-prong prima facie test for crime-fraud exception)
In re Grand Jury Subpoena, 884 F.2d 124 (4th Cir. 1989) (crime-fraud exception may vitiate work-product protection)
In re Grand Jury Proceedings, 33 F.3d 342 (4th Cir. 1994) (discusses heightened protection for opinion work product)
In re John Doe, 662 F.2d 1073 (4th Cir. 1981) (opinion work product is nearly absolutely protected)
Koon v. United States, 518 U.S. 81 (1996) (abuse-of-discretion standard: a district court abuses discretion when it makes an error of law)