Attorney-Client Privilege and Grand Jury Investigations Addressed
In re Grand Jury Proceedings, Nos. 09-2062/09-2068 and 09-2209/09-2228, 2010 WL 3258616, (Court publishes two decisions previously issued under seal and now with redactions.)
09-2209/09-2228
Appellee (a company?) was investigated for making misrepresentations on federal forms. Two GJ subpoenas were issued to an employee of appellee. Appellee moved to quash the subpoenas. 1) The Notice of Appeal by the government was timely filed where the district court did not definitively resolve issues until its second order, the government filed a motion for reconsideration, and the district court disposed of that order. The district court could properly extend the 30-day time limit for filing an NOA under FRAP 4(b)(4). 2) the district court erred by requiring certain documents be produced in camera so it could assess whether individual documents were relevant to the grand jury investigation. The court excluded certain documents from production and redacted portions of others. The Tenth holds the district court failed to apply the proper legal standard for relevance and therefore reverses. It abused its discretion in three ways: 1) applying its own categories of subpoenaed material, rather than categories as set forth by the government; 2) engaging in a line by line and document by document analysis; and 3) in camera review.
09-2062/09-2068
Two of Appellant's lawyers received subpoenas from a grand jury investigating appellant. Appellant moved to quash on the grounds the subpoenas violated his Sixth Amendment rights, applicable Rules of Professional Conduct, and attorney-client privilege and work product. The district court ordered the attorneys to respond to nine questions. The Tenth affirms. 1) The Tenth Circuit properly had jurisdiction because the attorneys testified they would comply with the orders rather than risk contempt. 2) Court lacked jurisdiction to entertain challenge to order to one attorney to produce billing records for review in camera; issue not yet ripe. 3) Court lacked jurisdiction to consider denial of appellant's motion to find prosecutorial misconduct before the grand jury. 4) Regarding the applicability of the attorney-client privilege: Asking attorney to testify regarding statements made by the attorney to the government or that the government made to him were not privileged; questions regarding information that the attorney received from the government and passed to his client were not privileged; information received from the government by attorney 1 and passed to attorney 2 were not privileged; privilege was waived regarding Appellant employee's communications with counsel because the information was disclosed to the government in an affidavit. 5) None of the information sought was work product or violated the 6th amendment. 6) Finally, the Rules of Professional Conduct did not provide any basis for relief: "Even if the [state] Rules of Professional Conduct were to apply to federal prosecutors' practice before a federal grand jury -- a proposition about which we have considerable doubt -- the [state] Rules do not bestow any rights upon Appellant that he can invoke in this appellate court or to the district court in attempting to quash the subpoena."
And after all that, no indictments were issued.
09-2209/09-2228
Appellee (a company?) was investigated for making misrepresentations on federal forms. Two GJ subpoenas were issued to an employee of appellee. Appellee moved to quash the subpoenas. 1) The Notice of Appeal by the government was timely filed where the district court did not definitively resolve issues until its second order, the government filed a motion for reconsideration, and the district court disposed of that order. The district court could properly extend the 30-day time limit for filing an NOA under FRAP 4(b)(4). 2) the district court erred by requiring certain documents be produced in camera so it could assess whether individual documents were relevant to the grand jury investigation. The court excluded certain documents from production and redacted portions of others. The Tenth holds the district court failed to apply the proper legal standard for relevance and therefore reverses. It abused its discretion in three ways: 1) applying its own categories of subpoenaed material, rather than categories as set forth by the government; 2) engaging in a line by line and document by document analysis; and 3) in camera review.
09-2062/09-2068
Two of Appellant's lawyers received subpoenas from a grand jury investigating appellant. Appellant moved to quash on the grounds the subpoenas violated his Sixth Amendment rights, applicable Rules of Professional Conduct, and attorney-client privilege and work product. The district court ordered the attorneys to respond to nine questions. The Tenth affirms. 1) The Tenth Circuit properly had jurisdiction because the attorneys testified they would comply with the orders rather than risk contempt. 2) Court lacked jurisdiction to entertain challenge to order to one attorney to produce billing records for review in camera; issue not yet ripe. 3) Court lacked jurisdiction to consider denial of appellant's motion to find prosecutorial misconduct before the grand jury. 4) Regarding the applicability of the attorney-client privilege: Asking attorney to testify regarding statements made by the attorney to the government or that the government made to him were not privileged; questions regarding information that the attorney received from the government and passed to his client were not privileged; information received from the government by attorney 1 and passed to attorney 2 were not privileged; privilege was waived regarding Appellant employee's communications with counsel because the information was disclosed to the government in an affidavit. 5) None of the information sought was work product or violated the 6th amendment. 6) Finally, the Rules of Professional Conduct did not provide any basis for relief: "Even if the [state] Rules of Professional Conduct were to apply to federal prosecutors' practice before a federal grand jury -- a proposition about which we have considerable doubt -- the [state] Rules do not bestow any rights upon Appellant that he can invoke in this appellate court or to the district court in attempting to quash the subpoena."
And after all that, no indictments were issued.
posted by Anonymous at 3:07 PM
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