[1]     

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 1995

, [5]     

Decided: October 13, 1995

, [6]      IN RE: RICHARD ROE, INC., AND JOHN DOE, INC. " />

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In Re Richard Roe Inc., 68 F.3D 38 (2d Cir. 10/13/1995)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 1995

No. 669

Docket No. 95-6142

68 F.3d 38, 1995.C02.0000453 <http://www.versuslaw.com>

Decided: October 13, 1995

IN RE: RICHARD ROE, INC., AND JOHN DOE, INC.

Before: WINTER, ALTIMARI, and McLAUGHLIN, Circuit Judges.

[8]    

Argued: September 7, 1995

[9]    

UNITED STATES OF AMERICA,

Petitioner-Appellee, v.

RICHARD ROE, INC., RICHARD ROE, JOHN DOE, INC., and JOHN DOE,

Respondents-Appellants.

Appeal from an order of the United States District Court for the Eastern District of New York (Thomas C. Platt, Judge) holding officers of two corporations in contempt for refusing to produce certain documents to a grand jury after the court found that the documents fell within the crime-fraud exception to the attorney-client privilege. We remand with directions.

DAVID M. ZORNOW, New York, New York (Keith D. Krakaur, Lawrence S. Spiegel, Skadden, Arps, Slate, Meagher & Flom, New York, New York, of counsel) for Respondents-Appellants John Doe, Inc. and John Doe. LAURA A. BREVETTI, New York, New York (Robert A. Culp, of counsel) for Respondents-Appellants Richard Roe, Inc. and Richard Roe.

SEAN F. O'SHEA, Assistant United States Attorney, Brooklyn, New York (Zachary W. Carter, United States Attorney, Eastern District of New York, David C. James, Lee G. Dunst, Assistant United States Attorneys, of counsel) for Petitioner-Appellee.

WINTER, Circuit Judge:

This appeal concerns the scope of the so-called "crime-fraud" exception to the attorneyclient privilege and attorney work product immunity (collectively "the privileges"). Appellant corporations John Doe, Inc. and Richard Roe, Inc.*fn1 asserted the privileges with respect to four grand jury subpoenas seeking documents and testimony from the corporations and from attorneys who jointly represented the firms at one time. The government subsequently moved to compel production, arguing that the matters sought fell within the crime-fraud exception to the privileges. Based on an ex parte affidavit submitted by the government, the district court concluded that there was a factual basis to believe that the exception applied and thereafter conducted an in camera inspection of the documents at issue. In a sealed opinion, the court found that

although many [of the documents] may enjoy the privilege claim, [the court was] in no position to say that one or more or all of them may not prove to be relevant evidence of activity in furtherance of contemplated or ongoing criminal or fraudulent conduct in this case. Furthermore, this Court does find that these documents, read collectively, have the real potential of being relevant evidence of activity in furtherance of a crime.

The district court thus held that the documents fell within the crime-fraud exception and issued two orders compelling the production of those documents. The court further ordered that unspecified witnesses, clearly including the corporations' joint attorneys, give virtually unlimited testimony concerning: (i) the documents, (ii) an investigation performed by appellants' counsel, and (iii) opinions rendered by counsel during the time frame of the subpoenaed documents. At a hearing on June 21, 1995, John Doe and Richard Roe, two officers of the corporations, refused to produce the subpoenaed documents and were held in contempt. This expedited appeal followed. Because the district court employed an incorrect test to determine whether the crime-fraud exception applies, we reverse and remand with directions.

The attorney-client privilege is "the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States


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