United States v. Clemens
793 F. Supp. 2d 236
D.D.C.2011Background
- Clemens is indicted on multiple counts arising from statements made to the House Oversight Committee in February 2008.
- Clemens served a Rule 17(c) subpoena on DLA Piper seeking interview notes and memoranda regarding Canseco, McNamee, and Radomski related to the Mitchell Report.
- DLA Piper moved to quash, arguing the notes and memoranda constitute attorney work product
- The court previously held the materials were protected as work product but allowed potential disclosure of portions related to government involvement with the interviews.
- The parties and court conducted in camera reviews and an ex parte hearing to determine which materials, if any, could be produced to Clemens.
- The court ultimately orders production of certain fact work product portions directly pertaining to Clemens, with a protective order and redactions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DLA Piper's notes and memoranda are fact or opinion work product | Clemens argues materials are fact work product due to witness statements and factual content. | DLA Piper contends the materials are opinion work product reflecting the firm’s mental impressions. | Materials largely constitute fact work product; some opinions limited. |
| Whether Clemens has substantial need to obtain the DLA Piper materials | Clemens shows substantial need to impeach or support defense theory. | DLA Piper argues production would reveal protected work product and is burdensome. | Substantial need established for portions directly pertaining to Clemens; undue burden shown for other parts. |
| What scope and manner of production is appropriate and what protective measures are required | Clemens should receive the relevant statements with minimal redaction to aid defense. | Production should be tightly limited to protect work product; broad redactions warranted. | Produce only the Clemens-related statements; implement protective order restricting use and return materials after trial. |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (1947) (foundation of work-product doctrine; protection of attorney preparation)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (notes/memoranda reveal attorney's mental processes; context in Upjohn)
- Goldberg v. United States, 425 U.S. 94 (1976) (adopted/approved statements and their relation to Jencks Act)
- Palermo v. United States, 360 U.S. 343 (1959) (Jencks Act scope; memoranda vs. witness statements)
- Saunders v. United States, 316 F.2d 349 (D.C. Cir. 1963) (verbatim notes; Jencks Act interplay with work product)
- In re Sealed Case, 856 F.2d 268 (D.C. Cir. 1988) (fact vs. opinion work product in litigation-related investigations)
- Sealed Case II, 124 F.3d 231 (D.C. Cir. 1997) (context-dependent )
- Paxson, 861 F.2d 730 (D.C. Cir. 1988) (third-party work-product and third-party subpoena considerations)