68 F.3d 38 (2nd Cir. 1995), 669, In re Richard Roe

Docket Nº:669, Docket 95-6142.
Citation:68 F.3d 38
Party Name:In re RICHARD ROE, INC., and John Doe, Inc. UNITED STATES of America, Petitioner-Appellee, v. RICHARD ROE, INC., Richard Roe, John Doe, Inc., and John Doe, Respondents-Appellants.
Case Date:October 13, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 38

68 F.3d 38 (2nd Cir. 1995)

In re RICHARD ROE, INC., and John Doe, Inc.

UNITED STATES of America, Petitioner-Appellee,

v.

RICHARD ROE, INC., Richard Roe, John Doe, Inc., and John

Doe, Respondents-Appellants.

No. 669, Docket 95-6142.

United States Court of Appeals, Second Circuit

October 13, 1995

Argued Sept. 7, 1995.

Page 39

David M. Zornow, New York City (Keith D. Krakaur, Lawrence S. Spiegel, Skadden, Arps, Slate, Meagher & Flom, New York City, of counsel) for Respondents-Appellants John Doe, Inc. and John Doe.

Laura A. Brevetti, New York City (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.

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

WINTER, Circuit Judge:

This appeal concerns the scope of the so-called "crime-fraud" exception to the attorney-client privilege and attorney work product immunity (collectively "the privileges"). Appellant corporations John Doe, Inc. and Richard Roe, Inc. 1 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...

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