Doe, In re

• Decision Date: 26 October 1981
• Docket Number: 81-1612,Nos. 81-1611,s. 81-1611
• Citation: 662 F.2d 1073
• Parties: , 9 Fed. R. Evid. Serv. 578 In re John DOE, et al., Petitioners. In The Case Of Grand Jury Subpoena Duces Tecum to Custodian Of Records, Richard ROE. John DOE, et al., Appellants, v. UNITED STATES of America, Appellee. In re Grand Jury Subpoena Duces Tecum to Custodian of Records, Richard ROE.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1073

662 F.2d 1073

64 A.L.R.Fed. 457, 9 Fed. R. Evid. Serv. 578

In re John DOE, et al., Petitioners In The Case Of Grand Jury Subpoena Duces Tecum to Custodian Of Records, Richard ROE John DOE, et al., Appellants, v. UNITED STATES of America, Appellee In re Grand Jury Subpoena Duces Tecum to Custodian of Records, Richard ROE.

Nos. 81-1611, 81-1612.

United States Court of Appeals, Fourth Circuit.

Argued Sept. 1, 1981.

Decided Oct. 26, 1981.

Paul Mark Sandler, Baltimore, Md., for appellants.

David Dart Queen, Asst. U. S. Atty., Baltimore, Md. (J. Frederick Motz, U. S. Atty., Baltimore, Md., on brief), for appellee.

Before WINTER, Chief Judge, and BUTZNER and SPROUSE, Circuit Judges.

SPROUSE, Circuit Judge:

John Doe (appellant) and the law partnership of which he is a member seek review of the order of the district court denying their motions relating to the subpoena of records containing attorney work product by a federal grand jury in Baltimore, Maryland, which is investigating John Doe. ¹

This is both a petition for mandamus seeking to compel the district court to quash the grand jury's subpoena, and an appeal of the court's order declining to do so. The custodian of these records is the subject of the subpoena, and as such falls within the rule that unless and until a witness has been held in contempt, he has no standing to appeal from an order directing him to produce documents before a grand jury. See United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971). John Doe, however, may seek direct review in this court in order to preserve his assertion of the attorney work product doctrine. In re Grand Jury Proceedings, 604 F.2d 798, 802 (3d Cir. 1979). Therefore, we need not consider the petition for mandamus, since our consideration of the direct appeal resolves the issues presented.

John Doe is an attorney and a member of a small firm in Baltimore. He represented another attorney (client) in three trials in 1975 and 1976 on federal criminal charges. In the first trial, the client was acquitted, and a second trial on different charges ended in a hung jury. At the third trial the client was convicted. Doe, after expressing initial reluctance arising from a fee dispute and other considerations, also represented the client in an unsuccessful appeal of that conviction in this court. The client subsequently informed representatives of the United States Attorney's office in Baltimore that John Doe had advised him to lie during his trials, to bribe witnesses and had otherwise engaged in attempts to procure false testimony.

The United States Attorney instigated a grand jury investigation, and presented to it the testimony of the client concerning these alleged criminal acts of Doe. Also presented to the grand jury were records of the attorney which he had inadvertently turned over to the client after completion of the client's criminal litigation. These records of the attorney contain his handwritten notes or comments which the government contends corroborate the client's testimony that the attorney suborned perjury, conspired to obstruct justice and obstructed justice during the client's trials. The notations concededly comprise both fact work product and opinion work product ² of the attorney generated in preparation for the trials. Apart from the documents presented to the grand jury by the former client, all or principally all of the attorney's records relating to the client's former trials are deposited in the files of his law partnership. At the government's request, a subpoena duces tecum was issued to the partnership, as custodian of Doe's records, ordering it to produce them to the grand jury. The appellant moved to quash the subpoena duces tecum on grounds that, as attorney work product, the written material is privileged, and cannot be used in a proceeding against the attorney. ³ The appellant also moved that the attorney's records given to the grand jury by the client be returned to him and that the grand jury be dismissed as having been tainted by its improper consideration of the privileged material.

The district court found that all the involved records were either fact or opinion work product of the attorney, but that if requisite need could be shown, the fact work product must be produced and that the opinion work product might also be subject to subpoena under a fraud exception to the work product rule. The district court, therefore, ordered an in camera hearing, requiring the government to demonstrate the need for, and unavailability of, the otherwise privileged material and a prima facie case of fraud by the attorney and/or his client during the latter's trial, to determine if the court would compel obedience to the subpoena. After an in camera ex parte hearing, the court found that the government had demonstrated a prima facie case of fraud, allowing the disclosure of opinion work product. It also found that as to the fact work product, the government had demonstrated a need for the records, and that information contained in them was otherwise unavailable to the government without undue hardship. The court made no specific finding as to the need for, or unavailability of, the opinion work product. In this case, however, a common factual background underlies evaluation of the government's need for this material and the unavailability of equivalent information.

The appellant contends that the district court erred in ruling that an attorney does not have an absolute privilege against the use, without the attorney's consent, of any information derived only from attorney opinion work product, arguing that there is no "fraud" exception to the opinion work product rule. The appellant also contends that even if there is such a fraud exception, the circumstances of this grand jury investigation do not compel its application. Further, he argues that the court erred in not requiring a showing of extraordinary need for, and the inability of, obtaining the substantial equivalent of the otherwise privileged documents, and in not requiring the government to establish a prima facie case of attorney fraud without reliance upon the disputed documents which the government had obtained from the former client. The appellant raises other points relating to the return of the documents and dismissal of the grand jury which need not be resolved in view of our disposition of the remaining issues.

An attorney must be free to advise clients and prepare their cases for trial without undue interference from the opposition or the government. This concept, inherent in the extraordinary "work product" rule, is a critical attribute of our adversary judicial system. There are exceptions to the rule, but simply stated, an attorney is not required to divulge, by discovery or otherwise, facts developed by his efforts in preparation of the case or opinions he has formed about any phase of the litigation, even if they have been reduced to writing. This has been an historic common law rule of evidence, 8 Wigmore, Evidence § 2318 (McNaughton rev. 1961), and federal courts for three decades have been guided in applying the work product doctrine by the Supreme Court's decision in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). There the Court said:

Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of any attorney.

Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways-aptly though roughly termed by the Circuit Court of Appeals in this case as the "work product of the lawyer." Were such materials 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. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.

We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and nonprivileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may properly be had.

Id. at 510, 511, 67 S.Ct. at 393, 394.

Judge Field, in expressing for this court the rationale supporting this rule, said:

Hickman clearly stands for the principle that the integrity of the adversary process must be safeguarded in spite of the desirability of the free interchange of information before trial. Its overriding concern is that the lawyer's morale be protected as he performs his professional functions in planning litigation and preparing his case. This work product immunity is the embodiment of a policy that a lawyer doing a lawyer's work in preparation of a case for trial should not be hampered by the knowledge...