In Re Grand Jury Investigation. Appeal of United States of America

respects, In other the order of the district affirmed,

court will be so that it shall be

modified to read as follows: now, 21, 1978, May

And it is ordered plaintiff (a) shall recover $1435.08on unpaid

behalf of Camille Martin as com-

pensation to which she is entitled for the

period December 1973 to December

with interest at from 6% December 1974 date, (b)

to this on behalf of $1450.88 period

Lovella L. Adams for

January 1975 to March with inter-

est at 6% from date, March 1976 to this

and, further, that respects in all other complaint

within par- dismissed. Each

ty shall bear its own costs. party

Each shall bear its own costs in this

court.

In re GRAND JURY INVESTIGATION.

Appeal of UNITED STATES of America.

No. 78-2040.

United States Appeals, Court of

Third Circuit.

Argued March 1979.

Decided June

1226 SEITZ, Judge, and ALDI-

Before Chief ROSENN, Judges. SERT and Circuit COURT OF THE OPINION SEITZ, Judge. Chief appeals from United States quashing an order district Compa grand jury subpoena to Sun issued ques subpoena sought various ny, Inc. compiled by Sun tionnaires memoranda Pepper, Ham Company and the law firm corporate during ilton an internal & Scheetz foreign transac investigation of various jur Althbugh has contested our tions. Sun recently we appeal, to consider this isdiction question this in In the Matter of settled February 14, Jury Empanelled Grand (3d Pur (Colucci), 597 F.2d 851 3731,1 the suant United U.S.C. § Attorney ap States has certified peal delay not purpose “is taken for the proof the evidence a substantial and that proceeding.” material in the a fact having district court received this certifica tion, are not section 3731 to required by we substantiality independently evaluate or materiality of material. the contested Compare 18 with 28 U.S.C. U.S.C. § 1292(b). Comiskey, Cf. United States § 1293, 1297-98 1972) (Unit (7th Cir. allege Attorney ed States need affidavit). specific support facts in of his accordingly jurisdiction We to consider have or, alter under 18 appeal § U.S.C. under 28 1291. See Co natively, U.S.C. § lucci, supra, at 854-858. Vaira, Peter F. U. Atty., S. Alfred A.

Gollatz (argued), Jr., Walter Batty, S. Bon- Brier,

nie I S. Norman E. Greenspan, Asst. U. Attys., S. Philadelphia, Pa., appellant. largely us are Although the facts before Barbara uncontested, impounded W. Mather (argued), been William A. the record has DeStefano, Richman, confidentiality David Jeffery C. preserve Hayes, Pepper, Scheetz, Hamilton will refrain jury’s inquiry. & Phila- We therefore delphia, Pa., Co., by appellee identifying name. Inc. some individuals Sun finding 1. 18 on part: U.S.C. the verdict or an indictment reads in before relevant information, if the United appeal or by An the United States shall lie to a to the district court appeals certifies court of from a decision order of a or delay purpose and that is not taken for suppressing excluding district court or evi- proof of a fact mate- requiring is a substantial prop- dence evidence the return of seized erty proceeding. proceeding, in a criminal rial in not made after put jeopardy defendant been January Inc., sary, Company, interpreter. The interviews Sun were (Sun) Instead, began investigation possible Pepper into not transcribed. attor- illegal payments neys made of its some em- reduced their notes and recollections ployees memoranda, in connection foreign concerning with Sun’s the interviews to operations. The corporation’s always days Audit of the actual inter- Com- within ten mittee, standing committee the Board view. These memoranda have remained in Directors, supervised files, investigation Pepper’s have been released and, July 20, 1976, on reported that no to members of Sun’s Board of Directors. significant violations had occurred. 21, 1977, September On the Audit Com- 1976, however, report,

Late in which information sub- mittee filed its discussed a mitted employee reopen- “questiona- a Sun to a led number of transactions deemed ing investigation. January ble.” in- On One of the selected transactions White, K. vice-president renegotiation Samuel volved the Sun’s contract counsel, general Pepper, foreign government. and an entity retained Ham- Sun (Pepper) paid country ilton & to advise of had of that a total Scheetz Sun its citizen of $235,000 legal obligations regard during in pay- to certain for services rendered the during renegotiation ments uncovered the internal audit. the of contract. The Audit later, days Two the Audit Committee asked Committee found reason to believe that Pepper money to assist and advise it in the some paid foreign conduct of the to the investigation representative may itself. The full passed Board have on to been of Pepper’s governmental Directors later ratified reten- officials as an inducement to by tion the Audit and renegotiate Committee authoriz- the contract. the investigation.

ed funds for The Audit Committee made a number of 11, February 1977, On report, including H. Robert in its Shar- recommendations baugh, the chairman of Board of the of corporate Sun’s Di- amendment tax returns rectors, letter, a covering question- sent and the of a form filing 8-K the naire, envelope and return Exchange each of Securities On Commission. 1,877 managerial 1977, fact, employees 27, did, of Sun and its October file an Sun in majority-owned SEC, ques- subsidiaries. The letter 8-K the disclosing ex- with the all plained purpose the investigation report, in- payments and tionable noted in the employees $235,000 asked the complete ques- to the cluding payment directly foreign filing prompt- tionnaires and mail them Pep- representative. This per. questionnaire Inquirer itself contained ten ed an article the Philadelphia in questions probing and, employee’s turn, investigation by in knowl- an the United edge any suspicious of Attorney transactions. The States for the Eastern District of accompanying question- instructions Pennsylvania. explained naire that employee should 1977, In a letter dated December “yes” if payments answer he knew of like United to turn Attorney States asked Sun

those in question, described “no” if he over, alia, referring, inter “all documents didn’t, and “conference” if he was uncer- payments way questionable foreign questionnaire tain. Neither nor the Sun, employees.” by made its officers or requested any instructions further elabora- Sun of responded releasing a number tion on the answers. including documents the Audit Committee 16, 1977, February Pepper report, On began report examining itself. After up questionnaires follow containing Attorney re- narrowed the United States sponses “yes” By Sep- or “conference.” of inquiry, requesting all documentation tember, Pepper renegotiation foreign had conducted 265 tele- contract $235,000. request phone personal payment interviews and 90 inter- This memo- views. interviews were conducted in “all interview specifically No included statements, presence anyone except representa- randa, or other questionnaires, and, Sun, tives of when events Pepper and neces- these recorded recollections Although a num- A . Sun released affair, pertaining ber of documents to the doctrine, work-product recog refused to release the interview memoranda initially Taylor, nized in Hickman v. questionnaires, claiming protection or the (1947), L.Ed. 67 S.Ct. U.S. attorney-client privilege under the protects discovery prepared materials 21, 1978, work-product doctrine. On March or collected “in the course of Sun received a subpoena re- preparation possible litigation.” Id. at questing request these documents. That 505, 67 S.Ct. at 391. See also Fed.R.Civ.P. later was amended to allow redaction criminal, 26(b)(3). applies This doctrine portions those the documents civil, litigation. as well as in United See “would disclose the impressions, mental con- Nobies, clusions, opinions, theories of an Moreover, 45 L.Ed.2d 141 attorney.” quash subpoe- Sun moved to has conceded granted na and the district court that mo- applies the doctrine to documents Although tion on June the district sought by grand jury. See re Grand judge opinion, did not file a written he (8th Jury Proceedings (Duffy), 473 F.2d 840 argument indicated at oral some of 1973); Jury Investigation In re Grand bases for his conclusions. (E.D.Pa.1976). (Sturgis), F.Supp. questions regard asserted, We must decide three has

Sun and the First, were work-product doctrine. contested, per- thirteen prepared these materials collected or provided sons the Audit Committee with so as to preparation possible litigation for any information regarding targeted the Second, they if qualify product”? as “work transaction. Eleven of the thirteen were protection product, are to as work entitled employees of they Sun at the time were protection the them absolute or is afforded employees interviewed. One of the inter- Third, qualified? if the documents are enti- viewed is Except now deceased. the only qualified protection, tled to the has employee foreign repre- deceased and the government adequate showing made an to himself, sentative who is neither a em- Sun protection? overcome that ployee nor a country, resident of this all of the by interviewees could be reached jury subpoenas. Although Sun has offered subpoe

to ensure the asserts that the appearance of employees its protec before the naed materials are not entitled to grand jury, product made tion as work because were not attempt no to summon prepared prep collected or “in the course of interviewees. ” Hickman v. possible litigation. aration for Taylor, supra, 329 U.S. at II argument, 391. At the close of oral Sun claims that the documents in district court stated that it would be “diffi subpoena protected by attorney- investigation cult” was not to hold that the privilege client work-product litigation.” or the contemplation doc- conducted “in of concedes, trine statement, j or both. As Although by Sun the attor- be itself ney-client privilege protect any subsequently cannot ambiguous, com- court district munications by request made either quashed of the two in- subpoena as to all terviewees who were employed by based its mo Sun. ed documents. Because Sun asserts, however, work-prod- Sun attorney-client privilege tion on the protects doctrine, uct doctrine all the work-product summoned doc- and because Sun protection uments and that privilege attorney-client absolute. conceded that We documents, therefore consider first the inclu- apply more did not to some of the sive alleged of the two inescapable shields: the work- the district conclusion is product doctrine. finding that the work- made a factual product applied. suspected doctrine Cf. v. concerned criminal violations. Milliner Islands, case, of Virgin Government Pepper When entered the the Audit (3d 1979)(oral findings and conclu- already enough Committee had uncovered sions held sufficient “indicate the basis support suspicion evidence to “a of illicit judge’s provide of the trial decision and an payments having See Ex been made.” January review”), adequate appellate basis for Committee, cerpts of Minutes of Audit 534. con investigation If further of some suspicion, litigation firmed that Indisputably, work-product doc sort was almost inevitable. The most obvi trine prepared extends to material col prosecu possibilities ous included criminal litigation lected actually before commences. tions, suits, litigation, derivative securities hand, possibility On the other liti some litigation by or even Sun to recover gation must exist. Courts and commenta Moreover, illegal payments. potential variety tors have offered a of formulas for litigation immeasurably was intensified necessary nexus between the creation legal obligations report any Sun’s prospect litigation. material and the wrongdoing to its stockholders and vari See, e.g., Ballenger Home Insurance Co. v. governmental agencies. ous Between 1973 Corp., 93, 101 (must (N.D.Ga.1977) 74 F.R.D. alone commenced 31 SEC be a probability litigation “substantial injunctions against companies actions for will and that occur commencement of such engaged that had allegedly in transactions litigation imminent”); Jury re Grand suspected similar those the Audit Investigation (Sturgis), supra, at 948 Committee. See Addendum Brief Sun (threat litigation im must “real and Company, Inc. Products, minent”); Stix Inc. v. United Manufacturers, Inc., Merchants & 47 F.R.D. prospect litigation in this case was (S.D.N.Y.1969) (prospect litiga sufficiently strong distinguish “identifiable”); tion must be Fed Moore’s States, Abel Investment Co. United ¶ eral 26.63[2.-1], Practice at 26-349 (D.Neb.1971), F.R.D. 485 and Peterson (litigation “reasonably must have an been States, (S.D.Ill.1971). United 52 F.R.D. 317 ticipated apprehended”). or Mil Professors discoverability Those cases the of dealt with ler Wright and offer an attractive formula during prepared internal memoranda IRS tion on purpose work-prod based the of investigatory phases the settlement and uct doctrine itself: court a audit. In the district tax Peterson parties Prudent anticipate litigation, and rejected the naked assertion government’s begin preparation prior to the time suit is preparation were trial that the memoranda formally commenced. Thus the test anticipa “[ljitigation cannot be materials: whether, be light should of the nature relatively few every ted in such ease when of the document and the factual situation litigation.” 52 F.R.D. at 321. See result particular case, the can document States, Co. v. also Abel Investment United fairly be said to have been prepared or Peterson). (quoting at 489-90 obtained because prospect litiga- of arguments other The tion. protection are with- against work-product Miller, 8 Wright & Federal Practice and and memo- questionnaires out The merit. Procedure: Civil (em- clearly differ at issue in this case randa added; phasis omitted). footnote required re- statutorily accident

Several v. A. in Goosman ports circumstances in case held discoverable that, (4th convince us tests, Inc., Pyle, under of Cir. these Duie Furthermore, district to no reason dis- reasonably perceive we could have found that prospect Pepper’s role as litigation of between tinguish was enough real investigator. work-product pro mandate its role as advisor and tection the questionnaires in a dual attorney in Hickman acted similar and the inter First, view memoranda. witnesses. investigation capacity when he interviewed adversary gives dan- grave to his rise to we conclude Under these circumstances holding gers inaccuracy of untrustworthiness. that district err in court did not purpose by such contemplation legitimate of is served Pepper acting that was No practice the at- litigation work-product that doc- forces production. testify remem- applies torney and the as what he questionnaires trine he write down issue. But see bers or what saw fit to interview memoranda at Industries, Meredith, tes- regarding witnesses’ remarks. Such Diversified Inc. v. evidence; (8th 1977) as (affirming timony qualify F.2d 611 n.4 could not impeachment corrobo- work-prod- use it for grant district court’s and to refusal facts). attorney protection purposes uct on rative make the similar would court and

much less an officer of the ordinary much more an witness. thereby profession would standards of pro- work-product concedes Sun that suffer. questionnaires quali- tection afforded the 512-13, by showing (empha- fied and can be overcome of at 394 329 U.S. at good government. cause As to the added). Citing excerpt, asserts sis Sun however, memoranda, interview asserts afford Sun Supreme that the Court intended work-product protection that the is absolute abso- attorney’s interview memoranda showing govern- no need discovery. protection from lute justify ment can the sub- enforcement of sentences Initially, we note that a few poena. rule attempts Sun to draw this Hickman quoted passage the after directly from Taylor. Hickman v. less was implied protection that the Court Hickman, a rare Supreme dealt there should Court than absolute: “[i]f these types with two product. justifying production work The de- situation matters, fendant’s not of petitioner’s taken written state- case is had Nevertheless, ments from a one court at the at least type.” number of witnesses Id. tug-boat scene absolute calling accident. The Court read Hickman plaintiff’s held that “naked, memoranda. general protection de- of such interview (Sturgis), mand” for these Jury Investigation written statements was In In re Grand work-product (E.D.Pa.1976), insufficient to pro- F.Supp. overcome tection. The “are so plaintiff burden was on “to court stated that such memoranda adequate thinking establish justify pro- product lawyer’s reasons to much duction” of those actu- statements. 329 witness’s probative and so little protected 67 S.Ct. at 394. absolutely al words that Appeals for from disclosure.” The Court Plaintiff also had to discover the indicated Eighth Circuit also has witnesses, content of oral interviews with rather “absolutely, such memoranda are some of which interviews had been summa- re Grand conditionally, protected.” than In rized in prepared by memoranda the attor- In at 848. Jury Proceedings (Duffy), supra, ney. protec- The Court greater called for of opinion, however, Court the same tion of this information than had afford- was less Appeals implied that protection ed the written statements: than absolute: not believe do “[w]e . to oral statements made [A]s attorney prospective of a defend- criminal attorney], witnesses to [defendant’s circumstances, ant, should absent unusual presently whether of his men- form summary produce required be to impressions memoranda, tal or we do not at 848- statement . . .” Id. witness’s any necessity believe that showing of can 49. be made under of this the circumstances already so as to justify production. Apparently, case Under our court conditions, posi ordinary attorney issue forcing adversely decided this Sun’s Natta, (3d Cir.), repeat or write out all that witnesses tion. In In re F.2d 187 410 95, denied, 836, 24 have told him 90 S.Ct. and to deliver the account cert. 369 U.S.

1231 Miller, (1969), Wright & L.Ed.2d 87 document.” 8 su- court considered the protection summarizing level pra, of to be afforded an attor at Memoranda oral 198. ney’s unique containing “analyses memoranda or and well- present interviews several position assessments of problems court which documented to the [the client’s] respect First, parties” litiga the various discoverability. they considers their tion. pure The documents legal contained indirectly attorney’s mental may reveal the opinion. material, id. See at 193. See, Such opinion e. processes, product. his work “opinion often called product,” work is the g., Taylor, v. 329 at supra, Hickman U.S. most prod sacrosanct of all of work 385; forms Jury Investi- 67 re Grand S.Ct. See, uct. e.g., 26(b)(3) (a Fed.R.Civ.P. Second, gation (Sturgis), supra, 949. at must “protect against disclosure of the reliability their as accurate reflections of conclusions, mental impressions, opinions, or of statements is function witness’s Note, attorney”); theories of an Pro factors, many including conditions of tection Opinion Work Product Under the interview, contemporaneousness Procedure, Federal Rules Civil 64 Va.L. writing, and the editorial discretion of Rev. Despite 334 the sensitive See, Taylor, v. attorney. e.g., Hickman Natta, nature of the materials we 512-13, supra, 67 329 at S.Ct. 385. U.S. did not absolutely believe were Third, discovery such and use of material protected: danger converting creates a grants attorney’s prod- Hickman work See, e.g., from advocate witness. United qualified uct a immunity discovery from Nobles, 252-53, supra, at v. 422 U.S. . product immunity . The work (White, J., concurring); 95 S.Ct. 2160 Hick- definitely Hickman is limited since a man Taylor, supra, 329 U.S. at 67 good showing justify pro- cause S.Ct. Finally, 385. the information con- duction of documents which otherwise generally tained in such memoranda is of might protected product. as work utility, especially limited where the witness readily opinion opposing F.2d at himself is pure 192-93. If available work product only party. See, g., Taylor, supra, e. qualified protec- entitled to Hickman tion, Although at this list is we believe the memoranda S.Ct. at exhaustive, many perforce issue it does reflect here are great- entitled no protection. shape any er special must considerations that discoverability of interview ruling on the Other courts and commentators also have in this case. memoranda like those at issue interpret declined to clothing Hickman as believe, exactly result, that con- we interview memoranda with absolute immu Hickman; templated documents such nity discovery. See, e.g., Harper & will in a “rare situa- be discoverable Publishers, Decker, Row Inc. v. 423 F.2d 487 tion.” Id. (7th 1970), equally aff’d divided court, L.Ed.2d (1971); Xerox International Corp. v. We must whether Business now consider Corp., Machines 64 F.R.D. government has demonstrated sufficient (S.D.N.Y.1974); 377-81 4 Moore’s Federal “good overcome the 26.63[8], 26-394, necessity ¶ ¶ Practice cause” to 26.64[4], protection (1970); Note, Va.L.Rev., work-product 26-442 mate- at rials sought subpoena. declining concedes, to the the virtually afford inter As Sun view government memoranda protection, good absolute we do has shown cause to dis not hold that questionnaire are to be treated identi cover the and interview mem cally questionnaires. to the As employee. we oranda noted of deceased Sun’s earlier, quoting Wright Professors of the trans Mil decedent’s earlier recollection ler, for discovery product demand work is relevant to undoubtedly of action at issue must Moreover, be light grand considered “in jury’s investigation. nature few, the bare discovery might apart have relevance of this material evokes if any, govern- concerns enumerated in facts related in the statement. however, prior Although section. the interview argument, at oral ment conceded conceivably opin- memoranda could contain with the that it never filed an affidavit product, government ion work has of- presented a sub- district court otherwise fered to by allowing minimize the intrusion grand jury claim that sus- stantiated Pepper and Sun to delete such material cover-up. only We have pected illegal from the factual recitation. Because naked assertion that it decedent will testify, possibility not that granted cover-up such a if might discover the memoranda will evi- be admitted into the sensi- access to these materials. Given dence, and the possibility concurrent subpoenaed, tive nature of the documents witness, will become a are re- general, unsub- we do not believe that this Finally, although mote. the memoranda allegation is sufficient to over- stantiated might inaccuracies, contain possibility by the work- protection come the afforded weighed against must be inability the stark product doctrine. government to secure the informa- asserts that Finally, government tion from more reliable source. Under subpoenaed materials grand jury needs the these circumstances we believe that the various inter- credibility to assess

goi ernment has demonstrated sufficient alleged for disclosure viewees. This basis necessity protection to overcome the afford- distinguish be- requires again us once questionnaire ed the deceased interviewee’s the interview questionnaires tween the and interview memoranda. having questionnaires, memoranda. employees however, signed by

We are persuaded, not been filled out and themselves, closely analogous are demonstrated a quantum similar in Hickman necessity written statements considered regard the remaining Taylor: materials. The possible

advances finding three bases for a and documents Such written statements good First, suggests cause. various circumstances, be might, under certain why reasons remaining interviewees give clues as to admissible in evidence or might be unwilling testify unavailable or the existence of relevant facts. or location grand before jury. But because the they might purposes Or be useful for government has absolutely made no effort impeachment pro- or corroboration. And testimony, to secure their the interviewees’ might justified the wit- duction where unavailability purely conjectural. All the longer available or can be nesses no interviewees, living exception with the difficulty. pro- Were reached alien, the non-resident can be reached and docu- duction of written statements grand jury subpoenas. Even as to the non precluded circum- ments to be under such alien, resident we govern believe that the stances, deposi- the liberal ideals of the ment should make a reasonable effort to tion-discovery portions of the Federal testimony secure his attempting before Rules of Civil Procedure would be attorney’s invade an files. stripped meaning. their much of Second, 511-12, the government argues (empha- that the at 394 U.S. S.Ct. investigating only ques- added). Similarly, deny we to sis were transactions, possibili- grand tionable but also the statements jury access to written ty corporate circumstances, im- cover-up might of those transac- we under such “ necessitates, according jury’s ‘right every tions. This pinge on the ” government, evidence,’ Branzburg Hayes, a determination of “what was see man’s Conceivably, when 33 L.Ed.2d stated to whom.” the 408 particular (1972) (quoting Wigmore, fact that a witness made a J. Evidence state- investigating attorney par- (3d 1940)), right ment to an valued at least ed. might cover-up underlying time highly ticular indicate a and as as the “liberal ideals” government obtaining the deceased discovery. civil We conclude that the government may materials, be entitled to an employee’s discover which we have held to employee’s questionnaire impeach or cor- protection. Addi- work-product be outside testimony roborate the employee of that discovery bar tionally, privilege the would date, however, grand jury. before the To materials any employee-generated other grand jury the has summoned no witnesses might need in the which the at all. We prematurely would act both and future. overbroadly production were we to order formu- Perhaps commonly the most cited questionnaires all the stage. at We privilege is that attorney-client lation of the believe it advisable to allow the district by Judge Wyzanski in United offered court, after the subpoenas, issuance of new Machinery Corp., United Shoe scope timing to consider the any and (D.Mass.1950): F.Supp. 358-59 such disclosure. (1) as- applies only if the privilege believe, however, We do not that the de- privilege is or serted holder of the impeach sire to or corroborate a witness’s client; (2) person to become a itself, testimony, by would ever overcome (a) is was made whom the communication protection afforded the interview mem- court, his or member of the bar implicit oranda. This rule is in Hickman’s (b) in connection subordinate and heightened protection of such material. lawyer; acting as a this communication is 512-13, See 329 67 S.Ct. 385. As (3) a fact of the communication relates to earlier, quality noted of an testimonial (a) by informed which the was attorney’s grave memorandum raises con- (b) presence his client without cerns not by raised a witness’s written (c) securing strangers purpose for the statement. (i) law or primarily opinion either on sum, we question- hold that all the (ii) (iii) assistance in services naires and pro- interview memoranda are (d) legal proceeding, and not some work-product tected doctrine. We tort; purpose committing a crime or believe that government has demon- (a) privilege has been claimed good strated cause protec- to overcome that (b) the client. not waived questionnaire tion as to the and interview advances several reasons generated by memoranda Sun’s deceased why attorney-client privilege should’not believe, however, employee. We do not apply and interview questionnaires yet demonstrated significantly, argues memoranda. Most good cause to protection overcome the as to employees who commu- individual questionnaires of the other or interview positions Pepper nicated with did hold memoranda. corporation that allowed them to argument speak for the “client.” This

B that has trou- forces us to confront issue Because we cannot affirm the district years: bled courts for a number of solely court’s entire order on the basis of attorney-client privi- extent to which the work-product doctrine, we are forced to to outside lege protects communications ground confront alternative Sun’s by employees at various corporate counsel2 quashing subpoena. asserts that Sun hierarchy. corporate levels of the attorney-client privilege protects any at- questionnaire Although began to receive or interview memorandum this issue Simon, employees. years ago, derived from one of its If more than 20 see Sun tention correct, privilege prevent Attorney-Client Privilege Applied would Hogan, 2. Because all the communications sel. See Natta v. issue counsel, Hercules, (10th 1968); Corp., this case were made Exxon to outside we Inc. v. (D.Del.1977); F.Supp. need not confront the issue of whether Hasso Co., (E.D.Pa. attorney-client privilege pro- what extent Retail F.R.D. Credit tects communications made to in-house coun- 1234 ject the communication between (1956), matter of 953 the

Corporations, 65 Yale L.J. Harper employee. In attorney and the not decided until the seminal federal case was Decker, Publishers, Inc. v. Philadelphia Westing v. & Row City 1962. In 1970), by an (E.D. 487, (7th affd F.Supp. 483 491-92 Cir. Corp., 210 house Electric court, 91 400 Pa.), prohibition equally denied sub divided U.S. mandamus and (1971), court held Kirkpatrick, v. 27 L.Ed.2d 433 nom. General Electric Co. denied, 1962), (3d 312 cert. 372 that F.2d 742 Cir. (1963), 9 L.Ed.2d 969 83 S.Ct. though not employee corporation, an that,

Judge Kirkpatrick recognized al group, is suffi- a member of its control though to invoke corporations were entitled so ciently corporation the identified with every com attorney-client privilege, the corpora- that his communication corporate munication counsel and between privileged where tion’s employee protection merits the employee makes the communication privilege. striking In the balance between corpo- superiors the direction of his disclosure, confidentiality he held that subject upon and where the matter ration employee making if the the communica- attorney’s sought by advice is which the tion, be, of whatever rank he is in a with in the corporation and dealt position to control or even to take a sub- performance by communication is part stantial in a decision about ac- employ- employee of the duties of his corporation may upon tion which the take ment. attorney, advice of or if he is an A few courts outside Seventh district body group authorized member of a approach;4 have Circuit credited then, authority, effect, which has that Appeals for recently, More the Court of (or he personifies) corporation banc, Circuit, sitting agreed en Eighth when he makes his disclosure the law- control-group was too restric that the test yer privilege apply. and the would subject- pure tive but concluded Id. at 485. Harper & Row matter test announced in test, ability This which on the focuses Industries, was In Diversified too broad. the communicating employee to take discre- (8th Meredith, Cir. Inc. v. 572 F.2d 596 tionary advice, upon attorney’s action subject-matter 1977), it a modified chose has been “control-group called the test.” proposed Judge test Weinstein’s first by Judge Since the issue confronted Rules of Evidence. treatise on the Federal Kirkpatrick has received considerable atten- 503(b)[04] ¶ Evidence See 2 Weinstein’s judicial tion opinions legal commen- employ protect That test would 3-6, infra, accompa- taries. See notes corporate counsel ee’s communication with nying majority text. A the federal clear if control-group courts adhere to the test.3 (1) was made for the communication advice; (2) Appeals purpose securing legal Court of did employee making Circuit concluded that the control- the communication Seventh superi- group privi- corporate test of his was too restrictive of the so at the direction or; lege (3) request so superior and chose instead to focus on the sub- made Note, Attorney- Hogan, (10th (S.D.Cal.1963). 3. See Natta v. See also 392 F.2d 686 515 Cir. Jury Subpoena Privilege Corporate 1968); In re Grand issued to Client Clients: Counsel, Doe, Inc., Test, Group General John Control 81 F.R.D. 691 424 84 Harv.L.Rev. (S.D.N.Y.1979); Virginia Elec. & Power Co. v. test). (endorsing control-group Co., Dry Shipbuilding Sun & Dock 68 F.R.D. Indus, (E.D.Va.1975); Burlington v. Exxon 397 Milliken, Inc., Deering Duplan Corp. 4. See Corp., (D.Md.1974); Honeywell, F.R.D. 65 26 (D.S.C.1974); Hasso v. F.Supp. Piper Corp., (M.D. Inc. v. Aircraft 50 F.R.D. 117 Co., (E.D.Pa.1973). Retail Credit 58 F.R.D. Indus., Congoleum Pa.1970); Inc. v. GAF Corp. Sylgab Wire v. Imoco- See also Gateway Corp., Steel & Corp., (E.D.Pa.1969) (by stipulation), 49 F.R.D. 82 (N.D.Ill.1974), F.R.D. 454 mem., (3d 1973); 'd F.2d 1398 Cir. aff mem., (7th aff'd 534 F.2d 330 Corp., F.Supp. Garrison General Motors See, corporation e.g., held in confidence. could secure Weinstein’s advice; (4) 503-44; subject Evidence, Note, matter of the com- p. at 84 scope munication is within the of the Harv.L.Rev., 426-27, supra note at 430. duties; employee’s (5) corporate mind, With principles these we communication is not disseminated be- believe that the control-group test offers a yond who, persons those because of the starting place analysis. suitable for our structure, corporate need to know its con- test, adopted by majority That tents. courts, bright any federal draws as a line as earlier, 572 at As F.2d 609.5 noted proposed approaches. impor More upon commentators have seized the issue tant, there seems to be a consensus that this have proposed themselves a host of corporation test mini affords bare alternative tests.6 protection. many Although mum of have array Confronted with such an argued protection that the test’s is inade possibilities, compelled we feel to exam quate, yet no one overly has criticized it as First, ine principles. certain basic as all Burners, generous. But see Radiant Inc. v. agree, courts and commentators seem to Ass’n, (privi American F.Supp. Gas 207 771 attorney-client privilege exists to dis foster lege corporate is not at all available to closure and communication between the at clients), reconsideration, aff’d on 209 torney Wigmore and the client. 8See on (N.D.Ill.1962), rev’d, F.Supp. 321 (McNaughton Evidence at 545 rev. denied, (7th Cir.) (en banc), cert. 1961). Nevertheless, privilege because the 330, 11 L.Ed.2d 262 S.Ct. obstructs the search for the truth and be control-group As even one test critic of the are, best, cause its benefits “indirect and noted, has the core of the idea “[t]he speculative,” it “strictly must be confined re group control is a sound one: cases within the possible narrowest limits consist application privilege strict the so that ent logic with the principle.” of its Id. at shelters those communications Lando, - U.S. -, 554. Cf. Herbert v. Kobak, socially protect.” it is desirable to -, (1979) 99 S.Ct. 60 L.Ed.2d 115 supra note that it at 365-66. We believe (“Evidentiary privileges litigation are not socially protect, desirable to at a mini .”). Moreover, favored . . . although mum, person communications made the need for a predictable applica rule of part in a authority who has the to take tion questioned, has been especially in the taken in any decision about action to be corporate context, Note, Attorney- see The response to the solicited advice. Whether Privilege: Rules, Client Balancing, Fixed privilege enlarged beyond should be Entitlement, and Constitutional 91 Harv.L. point depend upon whether a (1977), Rev. 464 should agree we majority with the policy view rule serve the that the incentive broader would full to confide is at least partially dependent underlying privilege its upon ability communication client’s predict the communication will be elf.7 Courts, ney-Client Note, Corporate Attorney-Client Privilege 5. See also in the Federal Privilege Industries, (1976) (an “expanded” Inc. v. Mere- Catholic Law. 138 con —Diversified Test, Harper. Privileged Note, dith —The Modified trol-group test); & Row Evidence — J.Corp.L. Attorney-Client (endorsing Diversified Communications —The Privi test). lege Corporate Setting: Suggested A Approach, 69 Mich.L.Rev. 360 (1970) (a “natu See, e.g., Kobak, Application 6. The Uneven Note, appropriate person” approach); ral or Attorney-Client Privilege Corporations Privileged Attorney-Client The Privi Few: Courts, the Federal (1972) (test 6 Ga.L.Rev. 339 lege Applied Corporations, As 20 U.C.L.A.L. focusing on whether advice was (1972) (an “expanded” control-group Rev. 288 test). corporate course of duties and in advance of Simon, Attorney-Client Privilege conduct); Applied Corporations, Taylor, as argued that Hickman v. 65 Yale L.J. 953 It has been (1956) (test classifying employees (1947), “manag- 329 U.S. 91 L.Ed. 451 ing agents,” “communicating agents,” control-group bars rule broader than the Note, Corporate City Philadelphia Westinghouse agents”); Attor- See “source test. corporate son not to relate control-group usually Criticism of the test information counsel, in- superior begins corpo- especially that a where observation short, we do structed them to do so. In rate client is different individual corporation’s attorney believe that extension of client. An individual can tell signifi- privilege against would disclosure facts and then act on the attor- relevant attorney’s ability to obtain cantly add to an ney’s corporate setting, advice. In the how- employees outside ever, information from people who know relevant group. control people make the decisions facts and the who are seldom the same. If an control-group test Other critics of the going give sound advice to the control at- possibility have focused on the that an group, information from he must secure ferret out torney willing will be less group. attorney’s outside the control privi- relevant information if it will not be allegedly need for this dictates information Diversified, leged. example, In the conclusion that the communications Eighth con- expressed Circuit concern about See, privileged. e.g., should be Diversified fronting corporate with a dilemma: counsel “ Industries, Meredith, supra, Inc. v. at 608- employees ‘If he interviews [outside 09; 368; Kobak, 6, Note, supra at 69 note group], control their communications to him Mich.L.Rev., 6, supra note at 374. If, will other privileged. not be on the hand, only he interviews control Although agree attorney [the we that an of- difficult, extremely group], he find it ten needs to secure from information lower- impossible, hap- if not to determine what employees, echelon we are not convinced ” pened.’ quoting 572 F.2d at Wein- corporation’s extension of the attor- schel, Corporate Employee and Interviews ney-client privilege would enhance his or Attorney-Client Ind. Privilege, B.C. ability her to secure that information. The in (emphasis & Comm.L.Rev. “confidentiality”' offered to non-control- however, believe, original). We group employees quite illusory would be Supreme with this adequately Court dealt standpoint. from their they Because have Taylor, dilemma in Hickman v. 329 U.S. itself, no control privilege over the their 91 L.Ed. 451 S.Ct. only communications remain confidential There, the Court considered the detrimental the sense that are not released to allowing opponent effect of to discover outsiders, long corporate and as as the attorney information collected group control privilege. desires to assert the investigation: course anof employees If the engaged questiona- had activity, ble corporation clearly would open opposing Were such materials power privilege demand, have the to waive the counsel on mere much of what employees’ to turn the statements over to put writing now down in would remain See, law g., enforcement officials. e. Diver- attorney’s thoughts, here- unwritten. An Industries, Meredith, supra, sified inviolate, Inc. at own. tofore would not be his Privilege 611 n.5. privilege, sharp prac- or no lower- Inefficiency, unfairness and employees level corporate giv- would confide in inevitably develop tices in the would Conversely, counsel at their own ing legal preparation risk. advice and involved, where questionable activity no of cases for trial. The effect on demoralizing. And non-control-group employees profession have little rea- would be Note, Corp., litigation.” supra, Elec. U.S. at at at 485. See also tion of S.Ct. Harv.L.Rev., supra note at 433 In 392. n.28. Hickman, the witnesses that defendant’s attor- apparent response holding, to this both ney employees interviewed were of defendant. Harper Row court and the Diversified & Nevertheless, Supreme Court held that the privilege expressly excepted informa- from the attorney-client privilege protect did not the in- “bystander gathered employees as mere tion protec- terviews: “it suffices to note that Pub., Harper Row Inc. v. witnesses.” See & privilege tive cloak of this not extend to does Indus., Decker, 491; Inc. Diversified attorney information which an secures from a Meredith, supra, at 609. acting anticipa- witness while for his client in rule, the interests of the clients and the cause closer to a uniform thereby facilitating justice poorly would be served. adaptation. such Id. at In balancing Perhaps, Judge as Heaney argued, against these policies concerns the liberal application control-group test will discovery, pro- the Court concluded that the frequent result in less attorneys use of product tection afforded work should be corporate sleuths. Diversified Indus- See qualified, doctrine, not absolute. That tries, Meredith, supra, (Hea- Inc. v. at 606 course, only applies when acts J., ney, concurring dissenting pan- anticipation litigation. Nevertheless, opinion). el undoubtedly A broader test where there is no prospect litigation, would encourage employment of outside corporate counsel has little reason to be counsel to corporate conduct internal inves- apprehensive about the unprivileged nature tigations. Judge Heaney felt that this in- Moreover, of his investigation. we believe centive attorneys was desirable because that an attorney should and would resolve “are only professionally trained but any remaining apprehension in favor of a obligated by their code of complete investigation. thorough complete ethics to make a sug Some courts and commentators have report.” assuming Id. Even the desirabili- gested that control-group the test discour incentive, however, ty of such an we do not ages corporation a conducting internal application believe that of the- narrower See, investigations. e.g., Diversified Indus control-group significantly will test reduce tries, 609; Meredith, Inc. v. supra, at Re noted, it. As one commentator has attor- port of the Committee on the Federal neys corporations are “ineluctable bed- Courts of the New County Lawyers York Note, Harv.L.Rev., supra, at fellows.” (April 1970), quoted Association 7-10 in 2 Furthermore, cases, appropriate Evidence, Weinstein’s p. 503-12 attorney corpora- will be able to offer the n.1. The short argument answer to this confidentiality by tion the limited afforded they have little choice. We do not work-product doctrine. doubt ability that the to conduct a confiden sum, persuasive we find no tial investigation “compliance would make reason to deviate from approach taken complex governing corporate laws by majority of the federal courts. We activity” palatable, Report more see control-group believe that the test is both Courts, Committee supra; on Federal we do enough enough broad and flexible accom doubt, however, that a corporation would corporate modate the client needs of risk civil or liability criminal under those Having conclusion, reached this we have no complex by foregoing introspection. laws difficulty applying it to the facts of this opinion, In our potential costs of unde case. Sun has conceded that none of the tected noncompliance high are themselves employees interviewed were members of enough to corporate ensure that officials group, the relevant control defined investigations will authorize regardless of ability part to take in a decision about inability keep investigations such Pepper’s response action to be taken in completely Note, confidential. See advice on this matter. None of the contest Harv.L.Rev., supra note at 431-32. documents, therefore, by the protected ed Moreover, having appli been alerted to the attorney-client privilege. Because we con rule, cable corporate attempt officials will attorney-client does privilege clude that the adapt dealings their with counsel to max case, apply in this we need not reach imize both confidentiality and the utili waived claim that Sun ty of their g., communications. e. See privilege. Hyman, Brown & Scope The of the Attor ney-Client Privilege Corporate Decision Ill Making, (1971). Bus.Law. 1156-57 By adopting the majority approach, judgment we the district court will be would move the federal step quashed portion courts one reversed insofar as it subpoena seeking questionnaire diction to appeals courts of from final deci and interview memoranda derived from courts, sions of district 18 U.S.C. employee. Sun’s deceased In all other re- 3731,1 govern allowing appeals spects judgment of the district court ment in criminal proceedings under certain will be affirmed in accordance with this analysis Colucci’s circumstances.2 opinion. parties will bear their own was, view, my incomplete basic issues costs. unconvincing. respect With to § persuaded it has not me that what is sauce ALDISERT, Judge, Circuit dissenting. goose, e., for the i. witness One who been served with a federal quash subpoena whose motion to is de grand jury subpoena duces tecum nied, should not also sauce for the move quash subpoe- the district court to a motion is gander when such denied, na. subject If the motion is granted. It present does not a reasoned subpoena may not obtain immediate analysis why an individual who fails to appellate order, review of the United States prevail before a district court is denied a v. Ryan, loses, review government, while the when it (1971); L.Ed.2d 85 Cobbledick v. United is entitled to pro review. Colucci does not States, 309 U.S. 60 S.Ct. 84 L.Ed. why vide reasoned discourse on a district presents This case the converse denying court’s order relief is not a final situation —the seeks immediate judgment, granting while an order relief is. appellate review of a district court order s puts Colucci imprimatur this court’ on a granting quash a motion jury judicial process permits govern subpoena. majority finds such an or- win, say, ment to I you “Heads tails lose.” appealable, der to be on authority Inof Such blatant inequality opportunity re Jury Grand Empanelled 14, February appellate primitive relief offends the most (Colucci), (3d 1979). F.2d 851 Cir. notions conceptualized right of fairness on Because I believe that Colucci wrongly was equally. reason distributed decided, I dissent from the majority’s deter- mination that possesses subject this court panel’s The Colucci treatment of 3731 is § jurisdiction matter to entertain appeal. this persuasive. even pronounces ipse less It dixit that jury’s a session is a “crimi- panel

The accepted Colucci govern- proceeding” blithely nal refuses to dis- ment’s contentions in favor of appealability, subject subpoena which cuss whether of the were also panel made before this at its request, qualifies own as “a fact proof and held that substantial separate two grounds support government’s right proceeding,” statutory material in the a appeal: (1) 1291, juris- granting U.S.C. appeal § concomitant of an 3731. under § 3731, 2, 1971, purpose delay 1. 18 § U.S.C. as amended Jan. taken for and that the provides: proof evidence is substantial of a fact mate- proceeding. rial in the appeal by In a criminal case an the United appeal in all such cases shall be taken appeals States shall lie to a court of from a thirty decision, days judg- within after decision, judgment, or order of a district ment or order has been and shall rendered be dismissing court an indictment or informa- diligently prosecuted. any counts, tion except as to one or more prosecution Pending the and determination appeal that no shall lie where the double instances, appeal foregoing jeopardy clause of the United States Consti- defendant shall be released in accordance prohibits prosecution. tution further chapter 207 of this title. appeal by An the United States shall lie provisions of this shall be liber- section appeals a court of from a decision or order of ally purposes. construed to effectuate its suppressing excluding district court or evi- requiring prop- dence or the return of government’s seized assess- Indicative of the initial erty proceeding, in a criminal not made right appeal after ment of its under 3731 is the § put jeopardy the defendant has been statutorily required fact that certification finding 9, before Attorney the verdict or April on an indictment the U.S. was first filed on information, or argument already if the United after oral had been certifies to the district court heard in this case. Indeed, rulings litigation may factor seems to have been various to which a swept juridical rug. rise, under the give entry of from its initiation to Cobbiedick, judgment.” 309 U.S.

I. 325, 60 at 541. S.Ct. starting any point for consideration Courts have often noted that 1291 is to § judgment 1291 final rule in this § given “practical rather than a technical express case is the determination Indus- construction.” Cohen v. Beneficial States, Supreme Court in DiBella v. United trial Corp., Loan 69 S.Ct. 369 U.S. 7 L.Ed.2d 614 93 L.Ed. 1528 This statement (1962): argu- is the basis of the first An granting denying pre-in- order ment, tightly Jury anchored on In re Grand suppress dietment motion to does not fall (U.S. Proceedings Works), Steel-Clairton independent within proceed- class of (3d 525 F.2d 151 I think the ings Court, recognized by otherwise case, holding however, of that undermines every practical and there is reason for supports rather than a determination of denying recognition. it such appealability present case. U.S. Steel-Clairton Works involved a district indefinitely staying grand jury order hold, We accordingly, the mere proceedings pending completion of re- pre-indictment circumstance aof motion litigation lated in the state courts. We held does ensuing not transmute the eviden- appealable the order under 1291 essential- § tiary ruling independent proceed- into an ly stay the reason that the indefinite ing begetting finality even purposes grand jury proceedings practi- had of appealability. dismissing proceedings cal effect of 129, 131, Id. (my 82 S.Ct. at 659-660 likely grand jury’s since it was emphasis). expire stay term would was lift- before The purposes underlying jurisdiction ed. Id. at 155-56. requirement al finality, embodied in 28 contrast, By prac- such there has been no U.S.C. promote are to effective and case. disposition present tical final judicial efficient administration and to en government may That not have access courage just speedy resolution of requested in the interview memoranda controversies. Cobbiedick v. United States, subpoena tecum does not affect duces supra, 540; 309 U.S. 60 S.Ct. way grand jury proceeding Bachowski the entire Usery, 545 (3d F.2d 369 the U.S. Works order did. To Steel-Clairton policy, effectuate this 1291 § clear, prevents piecemeal makes majority opinion As the Sun review of “what for practical purposes requested produced is has all the documents single a controversy”; the intent by the memoranda government except rule is to unify review of privileged. the entire in The single case a which claims are appeal. Sun Cobbie States, dick v. United here does not 325, quashing 309 atU.S. subpoena 60 S.Ct. at Supreme 541. The portion” of the significant Court contin block even “a ues to reiterate its disfavor government of interlocutory grand jury proceedings, as appeals, viewing finality judgment of argues, as an has not because the predicate essential for federal appellate jur whose been access to the individuals denied isdiction. MacDonald, United States v. are the Pepper firm interviews with the 56, L.Ed.2d 850, 853, U.S. controversy. subject of the memoranda (1978); Abney States, fact, United available to has made Sun 651, 656, 97 S.Ct. all L.Ed.2d 651 addresses of the names and (1977). The rule of finality by Pepper avoids “the and has persons interviewed just obstruction to claims that govern- would come them. The help offered to contact permitting from the harassment and cost of information may acquire ment the same a separate succession of appeals by privileged from the memoranda contained in the against interruption of safeguarding questioning persons grand these before the undue interlocutory jury. preclude and obstruction that appeals apply equally grand to during trials appeala- The other § jury proceedings: bility argument is that it has no recourse to grand The itself makes the Constitution it what claims is the traditional avenue of It judicial jury part process. a of appellate review in such cases as this be- most prosecution must for the cause, initiate unlike a party quash whose motion to un- important crimes. It does so federal grand jury denied, a subpoena is general from the court to der instructions government cannot resist district which, from it and to which is attached possible court’s order adju- and submit to time, reports findings. time to its dication of contempt. inability in- contempt proceeding voke before consti- proceedings thereby and gain judicial inquiry,” ... indirect review what tutes “a cannot be re- directly reason, lineage. viewed is not sufficient the most . . . ancient itself, life, short, is frequently find that the district court’s order duration of its appealable is impor- under by 1291. This identical It is no less § limited statute. argument, apparently accepted interrup- against in Colucci tant undue safeguard and, course, by majority here, by grand tion instituted inquiry was specifically rejected by Supreme jury protect delay Court than from States, in DiBella v. supra: United progress trial after an indictment Opportunity ob- been found. Nor are the against ap- considerations structing “orderly progress” inves- pealability compelling made less as to or- tigation encouraged more be should no granting ders suppress, by motions to one case than in the other. That a fact that the Government has no later jury proceeding litigants has no right defined appeal when if the loss of it, may emerge and that is none from evidence forces of its case. . . . dismissal irrelevant to the issue. . . . What- Government no more disadvan- [T]he right may ever re- taged have than in the case of an [the witness] adverse quires protection no further case ruling during on the either evidence trial. . . . than that afforded the district What disadvantage be springs there from until the disobey witness choosesto policy, historic over above the contempt. committed for At ... protection constitutional against double point, the witness’ situation becomes jeopardy, that denies the Government the so severed the main proceeding right in criminal cases save as permit sure, appeal. To be too expressly authorized statute. . interruption involve an trial expression such appears No in 28 U.S.C. investigation. or of the But not to allow and the only right Government’s interruption would forever preclude appeal; given by Appeals the Criminal claim, review of the witness’ alter- his ofAct now Stat. 18 U.S.C. natives are to abandon claim or lan- U.S.C.A. is confined to [18 § 3731] guish jail. in narrowly defined situations not relevant problem. our to Allowance of fur- Cobbledick, 327-28, 309 at U.S. 60 right ther sought must be from Congress omitted). (citations S.Ct. at 542 and not this Court. refusing Denial of of orders review 369 at (cita- U.S. at 659-660 S.Ct. quash is not subpoenas upon founded omitted). tions reviewing possibility subsequent con- the recipient Where a jury tempt upon but fun- proceedings sub- more poena has appellate review of that final ground an damental not quash, contempt adverse district court proceeding order orders. a is re- That Court, Supreme denying appellate independent, its separate re- viewable is due to view, recognized has policies that same nature. has If an individual refused right there is no or other subpoena punished and is constitutional comply with contempt, United important privilege for the whole character at stake. Cf. has be- changed. proceeding Ryan, supra, at ease 402 U.S. retaining personal come to him rather than to inter- may important S.Ct. 1580. It general investigative nature. id. at judicial appeal its See if a rupt proceedings for 327, 60 540. That the claim involved right S.Ct. privilege claim of or constitutional personal a contempt decision is one of In the will not otherwise receive review. privilege adds a constitutional dimension of Supreme case, however, present import. some DiBella, public interest Court held in weigh heavily enough on does not Supreme excep- allowed Court has policy to overcome the side tion to the rule that one who is denied his against piecemeal review. request subpoena quashed to have a must produce or resist the desired information compete in the Of the considerations possibility the order and face the of con- Supreme question appealability tempt charges the limited class of cases “in important are said that the most Court has where denial of immediate review would piecemeal and costs of “the inconvenience impossible any render review whatsoever of danger of on the one hand and the review an individual’s claims.” United States justice by delay on the other.” denying Ryan, supra, 402 S.Ct. Corp., v. Petroleum Conversion Dickinson Thus, (my emphasis). “review is avail- 507, 511, 94 L.Ed. 338 U.S. immediately able of a motion for of denial (footnote omitted). noted in As property, the return of seized where there F.2d at Usery, supra, Bachowski v. against is no prosecution pending criminal strong on the this court has taken a stand “[djenial the movant” review in because judicial finality promoting importance of such mean that circumstances would expansive efficiency upon and “has frowned indefinitely Government might retain the judg- the final judge-made exceptions to property any opportunity without for the “to inflate and been reluctant ment rule” movant right to assert on appeal his We have the boundaries of section 1291.” possession.” Similarly, Supreme Id. underly- recognized strong policies that the Court has counter-balanced, but ing finality may be

allowed immediate review of an order imposing outweighed, by the costs of directing a party produce third exhib- Those review. denying the rule immediate its which property appellant were the permanent possible include the costs and, claimed, review, he produc- immune from for opportunity of all foreclosure tion. To have denied review would have harm irreparable infliction of possible appellant] left ‘powerless to avert possibility [the aggrieved party, and on the the mischief of the order’ . . . for delay. of a net waste of effort hardly custodian could have been ex- imme- requires which is not one This case pected to risk a citation contempt for type of precisely the It is diate review. order to secure appellant] oppor- [the review inhibits in which immediate case tunity judicial review. judicial process, increas- smooth flow (citation omitted). Id. court, and appellate the burden on es delay

This recognized opportunity court has “[e]very open leaves involves, interlocutory order were able to some If the de- harassment. loss,” subpoe- gree, potential every quashing but this risk decision investigation, against during “must be balanced the need for na issued judicial seriously grand jury process efficient federal could be administration.” harassment Sylk, (3d opportunity Borden Co. The 846 abused. investi- When a increase as individuals under ruling district court is would pending government govern- gation uncertainty, adverse to the and the be left in would review, however, party seeking appeal, ment is the as to whether government testify produce investigation. or substance of the Borden must documents. Orders See granting quashing grand jury subpoenas or Sylk, supra. government itself Co. v. analogous to or compelling deny- orders it wants the has asserted that the reason ing discovery “bespeak which their own in- memoranda is to attorneys’ determine terlocutory rarely ap- character” and are a cover- whether has been involved in Sun pealable. Sylk, Borden Co. v. might up very which involve the statements essence, government F.2d 845. In attorneys. made to the can use the investigation dis- of the neither the court’s view Finally, might cover evidence that it in a use subse- review, nor the expediency immediate quent proceeding. discovery criminal If or- significance underlying or topicality of the interlocutory, ders are so is this one. appel expand be our issues allowed to important In contrast with the interests Judge jurisdiction Ad late under § which would be advanced denial of re- against in Ba temptation ams warned case, view in this the costs would be minis- Usery, supra: cho w ski v. First, noted, cule. as did not have order provides ample This case illustration practical concluding effect of proposition application jury proceedings perma- and review is not final order doctrine is often made nently foreclosed because issue may considerable diffidence. The substance again arise at a later if the stage case dispute highly significant, here is proceeds to trial. There should have been clarify significant no and immediate resolution would disruption investiga- was, law as is, important aspect tion because the of federal lengthy free to interview indepen- possibly terminating well witnesses as dently. Whatever However, minor controversy. inconvenience the wisdom might have been government, caused the its insis- judgment the final rule lies in the additional effort required is far from well systemic, tence we focus on as sufficient to counterbalance the rule of fi- appellate particularistic impacts. nality. overbur- system increasingly has become appear dened and future would Nor does this case fall the “collat under promise no relief from the continuous eral order doctrine” in Cohen v. announced Accordingly, it Beneficial increase case loads. supra. Industrial Loan Corp., Rodgers v. U. to us to the Corp., S. Steel F.2d 152 would seem to be a disservice (3d Cir.), denied, Court, cert. litigants general U.S. S.Ct. (1975), 46 L.Ed.2d 50 inter speedy justice idea to suc- if we were preted Cohen as requiring three elements: enticing suggestions cumb abandon “The order must be a final than a rather the deeply-held piecemeal distaste for liti- issue; provisional disposition of an must gation every temptation. instance of merely not be step disposi toward final Moreover, appealability to find those merits; tion of rights and the asserted close where cases the merits of dis- be post would irreparably lost if review pute may deep attract interest poned until final judgment.” Id. at 159. lead, eventually, court would lack to a Coopers Lybrand Livesay, See also & principled adjudication perhaps the ul- 463, 468-69, 57 L.Ed.2d finality timate devitalization of the rule On the basis of the third ele by Congress. as enacted alone, ment clearly this case is outside the 545 F.2d at 373-74. precept. impossible say Cohen It is finality rule embodied in 1291 must lost; any rights are irretrievably applied in accordance foregoing with the gather is free to same in precepts. Proper application both within questioning persons formation the same Moreover, spirit precepts letter of these by Pepper. interviewed the un derlying ap- issue is mandates conclusion that independent ques not an the order law tion of but very pealed with the is not a If judgment. intertwined final

1243 obtained in violation of the Fourth Amend- any there be comfort to the therefore, proceed- in ment cannot be used in a criminal position, it must be found 3731,3 illegal Congressional response ing against the victim of the search in 1971 § seizure,” applied grand jury proceed- Supreme 1962 invitation of the Court 347, ings. in DiBella. 414 U.S. at 94 S.Ct. at 619. The rule, apply stating refusal Court’s II. interpreted pro- it “has never been illegally seized evidence scribe the use of government argues because the against persons,” all id. at proceedings all excluding evi- district court’s order was one 348, 620, is, view, my tanta- 94 at S.Ct. dence, may the basis appeal therefrom on grand jury mount to a determination that explicitly of 18 3731. This U.S.C. statute § proceeding. investigation is not a criminal provides that the evidence must be exclud- proceeding” ed in “a criminal that “the Constitutionally protected rights guaran proof evidence a substantial [must be] trials have teed to defendants in criminal fact proceeding.” recog- material I subjects grand jury in been denied grand nize that jury proceedings hybrid are Manduja In v. vestigations. United States character, partaking of the nature no, 564, 1768, 48 L.Ed.2d 425 96 S.Ct. U.S. lacking both civil and criminal actions and (1976), concluded that Mi plurality 212 certain characteristics of each. For the warnings given not be to a randa need statute, purposes however, of this I would testify about jury called to grand witness investigation hold that the is criminal not a may have activities in which he criminal proceeding provides and that 3731 personally involved. Chief Justice been right no in this case. Burger’s plurality opinion also stated grand jury investigation right I believe a Amendment to counsel Sixth accurately investiga more prelude guaranteed grand jury viewed as a to a proceeding part Sup- criminal than a of it. tions: port for this view can be found in the Respondent if was also informed that Supreme teachers Court which refuse he desired he could have assistance of grand jury to afford to witnesses the consti- counsel, but that counsel could not be protections commonplace

tutional in crimi- grand jury inside the room. That state- Thus, proceedings. nal in United plainly ment was a correct recital of the Calandra, 613, 94 U.S. S.Ct. proceedings law. No criminal had been (1974), L.Ed.2d 561 the Court noted: respondent, hence the against instituted scope grand jury’s powers right Sixth Amendment to counsel had Illinois, special insuring Kirby reflects its role in play. fair not come into effective law enforcement. A 32 L.Ed.2d U.S. S.Ct. [92 411] jury proceeding adversary is not an hear- ing in guilt which the or innocence of the (my empha- at 1779 425 U.S. at 96 S.Ct. adjudicated. Rather, accused is it is an sis). parte ex investigation to determine Illinois, Kirby v. S.Ct. whether a crime has been committed and (1972), L.Ed.2d 411 determined that proceedings whether criminal should be an accused is not entitled to counsel against any person. instituted police after identification in station arrest 343-44, (my Id. at at 617-618 em- prior charge, preliminary formal but

phasis). indictment, hearing, arraign- information or

The issue in Calandra was whether the ment. The Court described what is entailed rule, exclusionary under which “evidence in the initiation of criminal proceedings: circuit, Seventh, judgment Special February final rule. 3. At least one other re Jury, (7th that district court orders in held the course of 1977 Grand proceedings appealable only if exception fall within the collateral order judicial Doe, The initiation of pro- (2d 1976), criminal 546 F.2d 498 Cir. dismissed ceedings is far from a mere formalism. appeal grand jury targets of from a starting point It is the sys- our whole denying district court order their motion to adversary justice. tem of criminal For it enjoin grand jury investigating from only government then that possible them for criminal violations of the prosecute, committed itself to Internal Revenue Code. But the court nev- then positions that the govern- adverse er grand jury investigation considered the ment and defendant have solidified. It is anything proceeding. to be but a civil The then that a defendant finds himself faced only reason the district court order was not prosecutorial organized forces of appealable 1292(b) under was the absence § society, and immersed in the intricacies of an accompanying certification from the procedural substantive and criminal law. judge controlling question district as to the It point, therefore, is this that marks the of law appealed. to be Id. at 501-02. commencement prosecu- of the “criminal More recently, the dismissed First Circuit tions” to which explicit guaran- alone the appeal from the denial of tees of the Sixth Amendment applica- a 6(e) Fed.R.Crim.P. petition. ble. disclosure stating why pre- the Cohen collateral order 689-90, Id. at (footnote 92 S.Ct. at 1882 cept available, was not the court was of the omitted). citations It hardly can be said view government that the had several alter- grand that at jury investigation stage native avoiding means of an irretrievable “the has committed itself to rights loss of in the absence of prosecute” immediate or that “the positions adverse appeal: Government could either “[T]he defendant have solidified.” have the cooperation of the district implicit message of decisions two in certifying question under other courts appeals strongly supports 1292(b), § or if it felt that circumstances position. Both involved review of dis- warranted, go contempt into order trict court orders pertaining to ongoing appellate obtain review.” Jury In re Grand grand jury proceedings and both held that Proceedings, (1st 1978). there appellate jurisdiction was no under 28 Again, 1292(b) applies only because “in a U.S.C. 1291 § § because the challenged orders action,” were not civil reasoning final. The fundamental to the rationale of both Circuit, courts was part based in on the First like the appellants’ Second Circuit failure to seek Doe, certification of the in In re implicit non-final was an determination orders under 28 1292(b), U.S.C. civil, which jury proceedings were not applicable only “in a civil action.” criminal, In re proceedings.4 Although opinion quoted peals by Coiucci place, from the the United States. In their it Report Senate on the 1971 amendments to the right appeal any confers a termi- decision Appeals (18 Criminal 3731), Act U.S.C. § nating prosecution except acquittal. a legislative history really does not address the Second, right it makes the Government’s appealability issue of the quashing of an order appeal suppressing appli- an order evidence subpoena duces tecum in the course of a proceedings, including cable to all criminal grand jury investigation. scope probation hearings, merely revocation 1970 amendment was summarized as follows: continues, however, pretrial suppressions. It purpose It is the of this bill to resolve deny authority appeals suppres- problems frequently serious which have aris- during sion orders made trial of indictments respect right en with of the United and informations. appeal rulings which terminate Third, requires appeals by it that all prosecutions by judgment other than of ac- appeals, United States be to courts taken quittal, grant suppress which motions to except that an from a decision based subsequent pro- evidence before trial or in part least on a determination ceedings ancillary to the trial. invalidity Congress may, upon of an act of purpose by making The bill furthers Attorney district court order or the General’s principal changes present four Crimi- purpose, certification for that be taken to the (18 Appeals nal Act U.S.C. Court, Supreme which then decide the First, it eliminates technical and outmoded appeals. case or remand it to the court of pleadings ap- distinctions as limitations on part it the antecedent rule. Since government simply cannot have rule of law argue vociferously precedent’s force resides ways two cannot —it expresses, measured investigation is not a that force must be precise to the rule. proceeding gave the constitutional facts which rise criminal when in “Two or decisions which alike rights' implicated, witnesses are and then cases of precisely similar stridently respects, the investi- all material and just thunder as that affecting their de- when the in all circumstances gation proceeding is a criminal the termination, all be or to run ‘on right appeal its is at are said to question of stake. other, or, an- the more accept sophistry. such fours’ with each in No court should law, is one said language cient of the the 6 But the III. four feet’ with other.” upon ‘run indeed, requirement; the is not a identity the Although Colucci was first decision repeat reality complexes is that fact seldom subject, by majority our court on this the Thus, of a exactly. the force themselves generous makes the statement that “we precedent depends upon both reason question” appealabil- recently settled this of the case and the supporting the rule of ity in case. single Trained in the com- to it. giving material facts rise tradition, I mon law do not subscribe to carefully single notion a Professor H. Levi has case ever “settles” Edward in- single clearly steps the three prece- law. A case serve as identified precedent: “simi- legal precept attaching a detailed in the of dent—a volved doctrine cases; the rule legal consequence larity of seen next detailed set is between case an- adjudged facts ease then in the first which is law inherent nounced; made furnishing considered as the rule then the rule of law is for 7 The deter- subsequent applicable case contain- to the second case.” determination of similarity vel non between ing material similar to facts identical or mination case, arising crucial, adjudged scope those in the in cases is for “the rule court, judicial law, meaning, depends or its same a lower court in the and therefore hierarchy.5 upon of what facts will a determination when present similar to those considered To on a rely persuasive case control- finding the rule was first announced. precedent, ling first court must extract key in similarity step is the or difference putative precedent. the rule from the A process.”8 the legal legal precept containing rule is a normative viability specific result, Thus, both of Co- specific assuming facts and a even legal upon interpretation result lucci’s 3731 on the basis depending the establish- of § stipulated subpoena ment duces of certain facts or found in of facts of that case—a Fourth, by prosecution provides a district court al of a criminal for liberal construction Appeals permits.” Act. Criminal in all cases where the Constitution S.Rep.No.1296, Cong., (1970). 91st 2d (my emphasis). Sess. Id. The amendments with were meant to deal See, alia, Camp- Henry 5. inter observations of problems three identified with the old 3731: Black, Blackstone, Han- bell Sir William John (1) provide the act failed to Wasserstrom, na, Pound, Roscoe Richard A. many frequently from encoun- Cross, Rupert Oliphant S. Herman and Thomas dismissals, types tered and from im- some Currier, Anatomy in Precedent collected evidence, proper suppressing (2) orders act Aldisert, 777-801 R. The Judicial Process required appeal many that an cases be taken (1976). Court, directly Supreme an ambi- guity meaning and absence of settled surround- ing many existing provisions Black, statute’s Precedents 6. H. Law of Judicial expend- in a resulted considerable and needless (1912). prosecutorial judicial iture of resources. Id. at 2-3. Levi, Reasoning, Legal An Introduction to 7. though expressly act Even liberalizes the 501-02 U.Chi.L.Rev. right appeal, legislative history speaks assuring in terms of “that Id. at 502. may appeal the United the dismiss- you tain that something have hold of so party tecum directed to a third custodian of facts, view, universal, my general, capable business records —those so of deal- so substantially are not similar to the facts at ing questions type you of that there Arguably, bar. the records say starting can authoritative here is an qualify statutory be seized could under the point reasoning analogous all description of evidence that is “a substan- cases. proof proceed- tial of a fact material Here, ing.” sought by evidence

subpoena question- duces tecum constituted analogy, as an single A decision as a naires and prepared interview memoranda starting develop principle, point to I, counsel. As set forth in Part very thing from the decision on different knowledge specific 'had particular of facts which an- state names questioned and of those addresses nounces a the court has that rule. When and Pepper interviewed law firm. it, same state of before unless there facts In this case the evidence is at best reason, controlling very some it is ex- insubstantial, secondary yet primary, pected the former to adhere to decision. substantial, and therefore evidence is avail- [goes] But further and when it endeavors able; I produc- therefore fail see how the principle, formulate a stare decisis does questionnaires tion quali- and interviews grop- not mean that the first tentative statutory description fies under the “that ings principle, for the what is said proof the evidence is a substantial of a fact course of development principle by fortiori, proceeding.” material A process judicial inclusion and ex- when access to the evidence is denied on the binding authority.9 clusion are of product basis of the attorney princi- work holds, as ple, majority such evidence clearly “proof,” qualify does not as con- IV.

templated by Congress in its 1971 formula- reasons, For foregoing all the I would tion of my 3731. In an appealability § view hold that the district court’s order was not determination statute requires under this final judgment nor was it the § under careful quality consideration of the type appeal of order for which lies under suppressed evidence, subsequent even if 3731, and that court therefore lacks § consideration of part the merits would track subject jurisdiction matter consider of the same inquiry. appeal. merits of I would Because such a careful examination of jurisdiction, dismiss the want of quality is central evidence appellant. and assess costs on the question of appealability under I accept majority’s cannot characteriza- sophisticated

tion appealability issue

presented “recently in this case as settled.” against

Roscoe hasty gener- Pound warned

alization:

You principle cannot frame a

assurance single on the basis of a case.

It takes a long, process of what Mr. Jus-

tice judicial Miller used to call inclusion justify you being exclusion to cer- Pound, Survey Problems, support judg- siderable a line of Conference authoritative (1940). Raz, Principles Legal U.Cin.L.Rev. seph 330-31 Professor ments.” and the Limits Jo- said, Law, Raz has “A can See also establish a Yale L.J. Aldisert, single judgment Opinion new rule in a which and Law Review becomes a Writers precedent. Principles Community Continuity Ap- made into law Writers: A single judgment; they proach, (1977- Duq.L.Rev. evolve rather 144-46 like a binding custom and are if have con-

Case Details

Case Name: In Re Grand Jury Investigation. Appeal of United States of America

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 1, 1979

Citation: 599 F.2d 1224

Docket Number: 78-2040

Court Abbreviation: 3rd Cir.