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IN RE GRAND JURY SUBPOENAS

August 20, 1982

IN RE GRAND JURY SUBPOENAS DATED DECEMBER 18, 1981 AND JANUARY 4, 1982

McLaughlin, District Judge.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

MCLAUGHLIN, District Judge

 SUMMARY

 Two motions have been made to quash certain subpoenas. On June 16, 1982, I issued a preliminary order to expedite the grand jury proceeding to which the motions apply. The order contained only my findings and indicated that a final memorandum and order, including an extensive discussion of the law and how it relates to the subpoenaed documents, would follow. The following constitutes my final memorandum and order.

 These are my findings:

 A. The following document is protected, and therefore not discoverable:

 Walco Document 3

 B. The following documents are discoverable:

 ATTORNEY DOCUMENTS

 1. Documents 1 and 2. Discoverable because the Government has established a prima facie case that the documents were created in furtherance of fraud.

 2. Documents 3 through 6. Discoverable for alternative reasons. First, they were prepared in furtherance of fraud. Second, material otherwise privileged was waived by disclosing it to an unprotected party.

 3. Documents 7 and 8. Discoverable for alternative reasons. First, the drafts were prepared in furtherance of fraud. Second, the letter requesting the House Committee's advisory opinion disclosed the information contained in the drafts, thereby waiving the attorney-client privilege in connection with this material.

 4. Document 9. To the extent that this request contains confidential material, protection which otherwise would have been afforded has been waived by disclosing such material to an unprotected third party.

 5. Document 10. Its protection was relinquished by disclosing it to a person who had no need to learn of the material disclosed therein.

 6. Document 11. This document is a cover letter for seven writings. The document itself is not privileged because it contains no confidential information. Three of the attached writings were prepared in furtherance of fraud and, therefore, are not privileged (Walco Document 5, infra, the Pension Agreement, and the House Ethics Committee Advisory Opinion). Another three writings contain only business advice (Attorney Document 12, infra, Richmond's resignation letter and certain Corporate Minutes). The last writing, Attorney Document 10, is discoverable for the reason already noted in paragraph 5, supra.

 7. Document 12. Since it memorializes business, rather than legal advice, it is not a privileged communication.

 8. Documents 13, 14 and 15. Such matters are outside the protections of the attorney-client privilege.

 9. Document 16. Since this information is available for public inspection, it is not confidential and thus discoverable.

 WALCO DOCUMENTS

 1. Document 1. Discoverable because such material was disclosed to an individual who had no need to be informed of its contents.

 2. Document 2. The Government has established a prima facie case that this document was prepared in furtherance of fraud.

 3. Document 4. Information concerning these subjects are not protected by the attorney-client privilege.

 4. Document 5. Discoverable because it was prepared in connection with and in furtherance of fraud.

 5. Documents 6, 7 and 8. Walco has failed to satisfy its burden that the matters discussed during these meetings and the advice solicited with respect to the draft minutes were primarily legal in nature.

 DISCUSSION

 Three subpoenas are involved in these motions. The first two subpoenas were served on a law firm and one of its senior partners (whose identities are being kept anonymous) on December 18, 1981. During the time covered by the subpoena, the law firm represented Walco National Corporation ("Walco"). The firm asserts that at the same time it represented Frederick Richmond, a member of the United States House of Representatives, who until December 31, 1978 also served as Chairman of the Board of Walco.

 Both subpoenas called for:

 
all notes, memoranda, letters, diaries, records of telephone conversations and files concerning the preparation of the pension proposal on behalf of Walco National Corporation and Frederick W. Richmond during the period between November 1, 1978 and June, 1979.

 The law firm asserts that this first pair of subpoenas should be quashed or modified because they call for sixteen documents that are protected by the attorney-client privilege. *fn1"

 A third subpoena was served on Walco on January 4, 1982. This subpoena calls for the production of

 
all books, records, documents, correspondence, ledgers, checks, check requests, agreements or writings of any kind relating to any pension plan(s) for any past or present employees, executive officers or directors of Walco National Corporation.

 Walco has moved to quash this subpoena on the ground that it calls for eight documents that are protected by the attorney-client and work product privileges.

 I. Richmond's Attorney-Client Relationship.

 Whoever claims the attorney-client privilege bears the burden of establishing it. In re Horowitz, 482 F.2d 72, 82 (2d Cir.), cert. denied, 414 U.S. 867, 38 L. Ed. 2d 86, 94 S. Ct. 64 (1973); 8 Wigmore, Evidence § 2292 (McNaughton rev. 1961). To create an attorney-client privilege, the following facts must be established:

 
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer, (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of others (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services . . . and not (d) for the purpose of committing a crime or tort; and (4) the privilege has . . . not been waived.

 United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358 (D.Mass. 1950).

 The attorney herein subpoenaed states that he represented Frederick W. Richmond at various times between November 1, 1978 and June, 1979. (Attorney affidavit, para. 2). More specifically, he states that to ensure Richmond's compliance with United States House of Representatives Rule XLVII, a rule which places a ceiling on the outside income of members of Congress, he submitted to the House Select Committee on Ethics a proposed pension agreement between Walco and Richmond. I find that the attorney did not represent Richmond for purposes of the attorney-client privilege.

 In a recent deposition taken of the attorney in General Steel Industries, Inc. v. Walco National Corporation and Frederick W. Richmond, Dkt. No. 81-1410-c (E.D.Mo. 1981), the attorney was shown a copy of a letter embodying the Walco-Richmond pension agreement. The following exchange ensued:

 Q. Was this document negotiated with Mr. Richmond?

 A. I don't know.

 Q. Did you represent Mr. Richmond in connection with ...


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