The opinion of the court was delivered by: WERKER
This is a motion to quash a grand jury subpoena duces tecum served on a law firm (the "subpoenaed firm")
directing it to produce any and all tape recordings of any statements made by certain named individuals.
Since May 1979, a grand jury has been conducting an investigation into alleged illicit drug manufacturing activities and alleged attempts to obstruct justice in connection therewith. As a result of this investigation, John Doe was indicted in October 1979 and charged with conspiring to violate the federal drug laws, unlawfully possessing and distributing drug controlled substances, conspiring to obstruct justice, and making false and fraudulent statements to a federal agency. The investigation is continuing as to other presently unindicted individuals, who are believed by the Government to have been involved with Doe.
A prior law firm (the "prior firm") has been representing Doe in connection with the grand jury investigation since May 18, 1979. The subpoenaed firm is co-counsel with the prior firm and is counsel of record in the criminal action pending against Doe. At some point prior to the service of the subpoena at issue herein, the prior firm transferred all of its records and files pertaining to this matter, including any items possibly covered by the subpoena, to the subpoenaed firm.
The Government has reason to believe that, in the course of the prior firm's investigation into the alleged drug manufacturing activities, an associate at that firm surreptitiously recorded conversations he had with certain individuals still under investigation. On November 9, 1979, the subpoena duces tecum which is the subject of this motion was issued, commanding the subpoenaed firm to produce:
Any and all tape-recordings or other mechanical recordings in your possession, custody or control . . . which record or reflect statements made by any of the following individuals. . . .
The subpoenaed firm moves to quash the subpoena on three grounds. First, the firm contends that the subpoena constitutes an abuse of the grand jury process in that it is intended to gather evidence to be used in connection with an already pending indictment (the Doe indictment). Second, the firm claims that the tape recordings, assuming they exist, are protected from discovery by the work product doctrine. Third, the firm maintains that any tape recordings made of conversations between the attorney and one of the individuals named in the subpoena are protected from discovery by virtue of the attorney-client privilege. The subpoenaed firm does not concede that any such tape recordings exist, and contends that even the existence vel non of any tape recordings should be protected from discovery.
A. The Abuse of Grand Jury Process Claim
The subpoenaed firm's contention that the Government has acted in bad faith in issuing the subpoena must be rejected. Although Doe has already been indicted, it is clear that other unindicted individuals including those named in the subpoena remain under investigation in connection with the events in question. The Government maintains, and there is no reason to believe otherwise, that the persons named in the subpoena are all still subjects of the continuing grand jury investigation. See affid. of Roanne L. Mann, sworn to Dec. 13, 1979, at P 2. I am persuaded that the subpoena was issued in good faith for the purpose of obtaining evidence not against Doe but against other unindicted individuals. Accordingly, the motion to quash is denied insofar as it is based on the abuse of grand jury process claim. See also Judge Carter's denial on the record of a similar motion to quash, transcript annexed to Mann affid., exh. D.
B. The Work Product Doctrine
The subpoenaed firm argues that the subpoenaed materials, to the extent they exist at all, were prepared by the prior firm in anticipation of litigation.
Consequently, the firm contends, the tape recordings are protected from disclosure by the work product doctrine first recognized by the Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947). Although the codifications of the doctrine in Rule 26(b)(3) of the Federal Rules of Civil Procedure and 16(b)(2) of the Federal Rules of Criminal Procedure do not govern grand jury proceedings, it is clear that the work product doctrine is applicable to grand jury matters. In re Grand Jury Investigation, 599 F.2d 1224, 1228 (3d Cir. 1979); In re Grand Jury Subpoena Dated Dec. 19, 1978, 599 F.2d 504, 509 (2d Cir. 1979); In re Grand Jury Proceedings (Duffy), 473 F.2d 840 (8th Cir. 1973). See also United States v. Nobles, 422 U.S. 225, 236, 95 S. Ct. 2160, 2169, 45 L. Ed. 2d 141 (1975).
In opposing the motion to quash the subpoena, the Government sets forth two arguments with respect to the work product claim. First, the Government contends that the tape recordings were unethically made and that the work product doctrine should thus not be applied. Second, the Government argues that even if the work product rule is applied, sufficient cause exists for overriding the qualified protection afforded to attorney work product.
The Government's first argument is not persuasive. In light of the New York State Bar Association's most recent opinion concerning attorneys recording conversations without the consent of the other party, it is not clear that the tapes at issue herein were unethically made. See Committee on Professional Ethics of New York State Bar Association, Opinion No. 515, reprinted in N.Y.L.J., Jan. 9, 1980, at 1, col. 2, modifying Opinion No. 32 (1974). In addition, even if it is assumed the tapes were made unethically, I am not convinced that the work product doctrine would not be applicable. The policies underlying the doctrine are directed at protecting an attorney's mental impressions and thought processes and "providing a privileged area within which he can analyze and prepare his client's case." United States v. Nobles, 422 U.S. at 238, 95 S. Ct. at 2170; see Hickman v. Taylor, 329 U.S. at 510-11, 67 S. Ct. at 393. The work product rule is simply not intended to govern or control the manner in which an attorney prepares his case, ...