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IN RE GRAND JURY SUBPOENAS DATED MARCH 24

June 2, 2003

IN RE: GRAND JURY SUBPOENAS DATED MARCH 24, 2003 DIRECTED TO (A) GRAND JURY WITNESS FIRM and (B) GRAND JURY WITNESS.


The opinion of the court was delivered by: LEWIS A. KAPLAN, District Judge.

MEMORANDUM OPINION

This motion poses the troublesome question whether and to what extent the attorney-client privilege and the protection afforded to work product*fn1 extend to communications between and among a prospective defendant in a criminal case, her lawyers, and a public relations firm hired by the lawyers to aid in avoiding an indictment. The Court's original opinion in this matter was filed under seal in order to protect the secrecy of the grand jury. In view of the importance of this issues, this redacted version of the opinion,*fn2 which substitutes pseudonyms for names and omits other identifying information, is being filed in the public records of the Court.*fn3

  I. Facts

 A. The Procedural Context

  The United States Attorney's office began a grand jury investigation of Target, a former employee of the Company, in or before March 2003. On March 24, 2003, it served a grand jury subpoena ad testificandum on Witness and another duces tecum on Witness's firm ("Firm"), a public relations concern. Counsel for Witness and Firm informed the United States

[265 F. Supp.2d 323]

      Attorney's office that Witness would decline to testify and that Firm declined to produce the subpoenaed documents on the ground that the information sought by the grand jury had been generated in the course of Firm's engagement by Target's lawyers, as a part of their defense of Target, and that it therefore was protected by the attorney-client privilege and constituted work product.

  The government moved by order to show cause to compel compliance with the subpoenas, and Target intervened with the government's consent. The Court concluded that the government almost undoubtedly could ask Witness questions as to which there would be no proper objection, even assuming that Target's position were correct, and therefore required Witness to testify before the grand jury while allowing her to assert any objections in response to specific questions and thus to frame the issues more narrowly.

  The Court initially required submission of the documents withheld by Firm on grounds of privilege for in camera inspection. On May 1, 2003, in an order that remains under seal, it held that certain portions of the documents constituted attorney opinion work product,*fn4 that the government had not made a showing sufficient to require production of those portions, assuming arguendo that such work product ever is discoverable, and directed Target and Firm to indicate whether the privilege objections would be pressed with respect to the remaining portions of those documents. They subsequently informed the Court that they continue to press those objections.

  Witness testified before the grand jury. She answered some questions but asserted Target's alleged privilege*fn5 in response to others.

 B. The Hiring of Firm

  This is a high profile matter. The investigation of Target has been a matter of intense press interest and extensive coverage for months. Witness claims that Target's attorneys hired Firm out of a concern that "unbalanced and often inaccurate press reports about Target created a clear risk that the prosecutors and regulators conducting the various investigations would feel public pressure to bring some kind of charge against" her.*fn6 Firm's "primary responsibility was defensive — to communicate with the media in a way that would help restore balance and accuracy to the press coverage. [The] objective . . . was to reduce the risk that prosecutors and regulators would feel pressure from the constant anti-Target drumbeat in the media to bring charges . . . [and thus] to neutralize the environment in a way that would enable prosecutors and regulators to make their decisions and exercise their discretion without undue influence from the negative press coverage."*fn7 Witness claims that "a significant aspect" of Firm's "assignment that distinguished it from standard public relations work was that [its] target audience was not the public at large. Rather, Firm was focused on affecting the media-conveyed message that reached the prosecutors and regulators

[265 F. Supp.2d 324]

      responsible for charging decisions in the investigations concerning . . . Target."*fn8

 C. Firm's Activities

  In carrying out her responsibilities, Witness had at least two conversations directly with and sent at least one e-mail directly to Target.*fn9 On other occasions, Firm interacted with Target's attorneys.*fn10 On still others, communications involved Firm, Target and the attorneys and, in a few cases, Target's spouse.*fn11 Some of the documents produced for in camera inspection included discussions about defense strategies, and there is no reason to doubt that this was true of many oral communications.*fn12 And while Target and Witness perhaps do not so admit in these precise terms, the conversations and e-mails exchanged among this group inevitably included discussion of at least some of the facts pertaining to the matters in controversy.

  Firm's activities were not limited to advising Target and her lawyers. Firm spoke extensively to members of the media, in some instances to find out what they knew and, where possible, where the information came from.*fn13 And it conveyed to members of the media information that the Target defense team wished to have disseminated.*fn14

  II. Discussion

 A. Attorney-Client Privilege

  As this matter is entirely federal in nature, the scope of the attorney-client privilege is governed by FED. R. EVID. 501, which provides in relevant part that "the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." In consequence, the Court looks principally to decisions applying the federal common law of attorney-client privilege.

  As the government argues, the broad outlines of the attorney-client privilege are clear:
"(1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived."*fn15
But two qualifications must be made.

  First, the privilege protects not only communications by the client to the lawyer. In many circumstances, it protects also communications ...


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