The opinion of the court was delivered by: LEWIS A. KAPLAN, District Judge.
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
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
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
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.
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
responsible for charging decisions in the investigations concerning . . .
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
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 ...