The opinion of the court was delivered by: GERARD E. LYNCH, District Judge
In this criminal prosecution, defendant Angelo Arias has issued
a subpoena to David S. Smith, Esq., an attorney who represents a
potential cooperating witness ("CW") at defendant's upcoming
trial. Arias seeks three categories of information: (1) notes or
documents concerning proffers or meetings between CW and the
United States Attorney; (2) documents provided to Smith by the
United States Attorney in connection with the prosecution of CW;
and (3) any documents obtained by Smith in connection with that
prosecution. By letter dated April 15, 2005, Smith moves to quash
the subpoena. The motion will be granted.
Insofar as the subpoena seeks notes taken by a defense attorney
during proffer sessions preceding or following CW's entry into a
cooperation agreement with the Government, the case stands on all
fours with United States v. Jacques Dessange, Inc., No. S2 99
Cr. 1182 (DLC), 2000 WL 310345 (S.D.N.Y. Mar. 27, 2000). The
Court is in full agreement with Judge Cote's well-reasoned
opinion in that case, holding that notes taken by a defense
lawyer in this situation are work product protected against
There is no question that notes taken by a criminal defense
attorney during meetings between his client and the Government
are taken in anticipation of litigation. That is clearly the case for any proffer sessions that precede resolution of the
client's case, but it is also true of notes taken at subsequent
proffer sessions after the client has entered a cooperation
agreement. A competent defense lawyer will take notes during such
sessions in anticipation of issues that may arise at sentence,
and to safeguard against the possibility that misunderstandings
during the debriefings could result in revocation of the
cooperation agreement and further prosecution of the client.
Clearly such materials are "created because of anticipated
[indeed, existing] litigation, and would not have been prepared
in a substantially similar form but for the prospect of that
litigation." United States v. Adlman, 134 F.3d 1194, 1195 (2d
Cir. 1998). Smith represents that his notes are "not a verbatim
transcript of the interviews," but rather "notes . . . that I,
using my own legal analysis, determined were important to
memorialize in order to properly counsel my client. . . . [which]
reflect my impressions and beliefs." (Letter of David S. Smith,
Esq., to the Court, dated April 15, 2005, at 2-3.) Courts have
accepted such representations, see Dessange, 2000 WL 310345
at*3, United States v. Paxson, 861 F.2d 730, 735 (D.C. Cir.
1988) (referring to district court's reliance on subpoenaed
attorney's "unchallenged representation" to the court), and with
good reason: it is to be expected, in the ordinary course, that
this is precisely what notes taken under these circumstances
would contain. Arias offers no reason to expect that Smith's
notes contain anything different.
Since the notes constitute work product, they are privileged.
Fed.R.Civ.P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495,
510-11 (1947). Moreover, as material reflecting an attorney's
opinions, conclusions, mental impressions or legal theories, they
are subject to a heightened standard of protection. Upjohn Co.
v. United States, 449 U.S. 383, 401 (1981). Indeed, there is
authority suggesting that in criminal cases, that protection is
even further heightened; the Second Circuit has indicated that in "a criminal case, except for
scientific or medical reports [discoverable under Fed.R. Crim.
P. 16(b)(2)], documents made by a defendant's attorneys . . . in
connection with the case are not discoverable." In re Grand Jury
Subpoenas, 959 F.2d 1158, 1166 (2d Cir. 1992). At a minimum,
such materials should not be discovered absent "an adequate
showing of substantial need for the document and an inability to
obtain its contents elsewhere without undue hardship." Adlman,
134 F.3d at 1202-03.
Arias has made, and can make, no such showing. Arias's need is
to have an account of prior statements made to the Government by
a witness against him. That is a significant interest, but it is
adequately met by the requirement of 18 U.S.C. § 3500 that the
Government turn over all of its records of the witness's
statements. In this case, the Government has represented that it
will turn over all notes, as well as any formal reports, of the
proffer session. While of course it is possible that Smith's
notes will contain material not contained in government agents'
notes, the possibility of fuller disclosure is outweighed by the
risk of invading defense counsel's thoughts and strategies.
Accordingly, this Court joins those that have held that such
notes are not discoverable without a greater showing of need than
has been made here.
What has been said largely disposes of the other aspects of the
subpoena. Documents otherwise discoverable are not privileged
simply because they are in the possession of a lawyer. If Arias
sought particular, identifiable materials from Smith, they would
not necessarily be protected by either the attorney-client or
work-product privilege. But Arias has not subpoenaed identifiable
specific materials. Instead, he has subpoenaed whatever documents
Smith obtained (or, more narrowly, obtained from the Government)
in connection with his defense of CW. These materials have by
definition been collected by, and reflect the mental impressions
and strategies of, defense counsel. In effect, Arias seeks the entire
contents of a defense lawyer's file, apart from the lawyer's own
notes (which are separately sought in the first portion of the
subpoena). Such "documents" could include copies of case law or
other legal research, materials subpoenaed from third parties,
and discovery provided by the Government. To the extent that such
documents came from the Government, and are discoverable by
Arias, they presumably have been provided by the Government
pursuant to Rule 16; to the extent they came from the Government
and are not discoverable by Arias under Rule 16, Arias may not
subpoena a codefendant or related party to make an end-run around
the discovery limitations of Rule 16; to the extent they were
gathered by defense counsel's own investigation, their disclosure
would plainly reflect defense counsel's mental impressions and
strategies, and are therefore work product.
"In performing his various duties . . . it is essential that a
lawyer work with a certain degree of privacy, free from
unnecessary intrusion by opposing parties and their counsel."
United States v. Nobles, 422 U.S. 225, 237 (1975). Defendant's
subpoena, if authorized by the Court, would deter defense
attorneys from doing their jobs in the most effective way
possible. "Were such materials [as those sought by Arias] open to
opposing counsel on mere demand, much of what is now put down in
writing would remain unwritten. An attorney's thoughts,
heretofore inviolate, would not be his own. . . . And the
interests of the clients and the cause of justice would be poorly
served." Id. at 237-38.
Accordingly, Smith's motion to quash the subpoena is hereby
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