An unnamed criminal defense attorney and her investigator will have to answer federal prosecutors’ questions about they came to be in possession of allegedly fraudulent documents that were introduced as evidence at their client’s trial.
The 4th U.S. Circuit Court of Appeals ruled Aug. 18 that prosecutors could compel the defense team’s testimony about who gave them the documents, and how. The panel said the questions were permissible under the crime-fraud exception to the work product rule—which generally protects an attorney’s work done in preparation for litigation—because the questions sought to elicit facts rather than the defense team’s opinions.
The court granted, however, a motion to quash a question about what an unnamed person under federal investigation had told the defense team. The judges concluded that asking an attorney to share her recollections of those conversations would require her to expose her mental processes, which are more robustly protected under the work product rule.
Crucially for the court’s ruling, the federal government is not alleging that the defense team was in any way aware that the documents were fraudulent. The names of the parties involved were kept under seal to preserve the confidentiality of ongoing grand jury proceedings.
The criminal defendant at the heart of the case was convicted in the U.S. District Court for the Western District of North Carolina. After trial, the government noticed that one of the exhibits introduced by the defendant appeared to be a forgery. The defense team handed over a higher quality copy but declined to be interviewed, and a grand jury issued subpoenas compelling their testimony. The defense team moved to quash the subpoenas, contending that the government sought protected work product, but the district court denied the motion.
On appeal, the judges noted that material that would usually qualify as work product may still be compelled upon a showing that it was made for the purpose of committing or furthering a crime or fraud. A party hoping to discover opinion work product—which represents the thoughts and impression of the attorneys—via this exception must show that the attorney knew about or took part in the client’s misdeeds.
The judges unanimously agreed that questions about who gave the defense team the documents, and how, constituted fact work product and could be asked under oath. They found that the government had provided ample evidence that the defendant had likely engaged in production of a fraudulent document and that the questions were closely related to its investigation into that misconduct.
But the panel divided on whether recollections of the attorneys’ pretrial conversations should be protected as opinion work product. Judges Diana Gribbon Motz and Albert Diaz held in a per curiam opinion that the subpoena to compel an answer to this final question should be quashed because the answers would reveal which witness statements the attorney deemed important enough to commit to memory.
“We draw a line between asking an attorney to divulge facts—either noticed by or communicated to her—and (as the government seeks to do here) asking an attorney to recall generally what was said in an interview,” the opinion reads. “To answer this question, the Defense Team would have to disclose their recollections of witness statements and reveal what they deemed sufficiently important to remember from those discussions. This falls squarely within the category of work product—opinion work product—that the Supreme Court strongly shields from discovery.”
Judge Paul Niemeyer wrote in a separate opinion that he would have allowed prosecutors to compel testimony on this question as well.
Josh Carpenter, federal public defender for the Western District of North Carolina in Asheville, represented the defense team. Carpenter declined to comment on the court’s decision, citing his office’s policy concerning ongoing cases.
Steven Meier of Charlotte represented the unnamed defendant, who intervened in support of the defense team. Meier did not respond to phone calls seeking comment on the court’s decision.
The 18-page decision is In re Grand Jury Subpoena Under Seal 1, 2 and 3 (Lawyers Weekly No. 001-176-17). The full text of the opinion is available online at sclawyersweekly.com.
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