Grand Jury Subpoenas, 89-3 and 89-4, John Doe 89-129, In re, No. 90-5901

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore ERVIN, Chief Judge, and RUSSELL and WIDENER; WIDENER
Citation902 F.2d 244
Parties, 30 Fed. R. Evid. Serv. 273 In re GRAND JURY SUBPOENAS, 89-3 AND 89-4, JOHN DOE 89-129. UNITED STATES of America, Plaintiff-Appellee, v. UNDER SEAL, * Defendant-Appellant.
Decision Date26 April 1990
Docket NumberNo. 90-5901

Page 244

902 F.2d 244
58 USLW 2734, 30 Fed. R. Evid. Serv. 273
In re GRAND JURY SUBPOENAS, 89-3 AND 89-4, JOHN DOE 89-129.
UNITED STATES of America, Plaintiff-Appellee,
v.
UNDER SEAL, * Defendant-Appellant.
No. 90-5901.
United States Court of Appeals,
Fourth Circuit.
Argued April 24, 1990.
Decided April 26, 1990.

Page 245

Milton Eisenberg, argued, Jack B. Gordon, Bruce J. Casino, Jonathan M. Jacobson, on brief, Fried, Frank, Harris, Shriver & Jacobson, Washington, D.C., for defendant-appellant.

Mark J. Hulkower, Asst. U.S. Atty., argued, Henry E. Hudson, U.S. Atty., on brief, Alexandria, Va., for plaintiff-appellee.

Before ERVIN, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.

WIDENER, Circuit Judge:

The district court in this case granted Movant's motion to quash subpoenas issued by two grand juries with respect to certain papers in its possession on the grounds of attorney-client privilege or work-product privilege, or both, and held that the Government had not established a prima facie case for the crime-fraud-tort exception to the attorney-client privilege. 734 F.Supp. 1206. It also held that the Government was, nevertheless, on the ground of necessity, entitled to certain statements of witnesses contained in the papers otherwise subject to the work-product privilege. But as to the papers in the possession of Subsidiary, which had waived all privileges it might possess, the district court held that all privileges had been waived by the Subsidiary as to a part of the papers, and that no joint defense privilege applied to the balance thereof. The effect of the district court's order was thus to the effect that the Subsidiary had to turn over all of the papers in its possession to the grand jury although the papers might well be subject to either an attorney-client or work-product privilege. We affirm in part, vacate in part, and remand.

In 1984 the United States Army awarded to Movant a contract to provide the Army with certain services. These services were performed by an unincorporated division of Movant for several years. In 1988, Movant created a wholly-owned subsidiary which, as stated before, we will call simply Subsidiary. Subsidiary, as a division and as a corporation, performed the services contracted for by Movant in its contract with the Army. The contract between Movant and the Army was assigned by Movant to Subsidiary but an agreement approving such assignment or novation has not been executed by the Army.

During Movant's performance of its contract with the Army, it became involved in several disputes concerning the obligations of the parties under the contract. In 1985, Movant filed an administrative claim, under certain contractual provisions, for an equitable adjustment to the terms of the contract. It alleged that omissions on the part

Page 246

of the Army had increased the costs of its performance and delayed its completion. In 1985, the Army's contracting officer issued a decision denying Movant's claim and asserting a counter-claim against Movant by the Army on account of damages for delay. Movant then filed its appeal with the Board of Contract Appeals. Movant continued to prosecute the claim against the Army and to defend against the counter-claim. The claim and counter-claim were settled in October of 1989 under what the parties call a walk-away agreement, which apparently means that neither side took anything from the controversy. In September 1988 Movant sold 40% of the stock in Subsidiary to four strangers and sold an additional 20% in January 1989 to four other strangers, thus giving up control of Subsidiary. It sold another 5% in October 1989 and the remainder of its Subsidiary stock in January 1990.

The district court found as a fact that from 1984 until Subsidiary was sold, Subsidiary, first as a division of Movant, then as a true subsidiary, and later as an uncontrolled corporation, "generated documents in connection with administering and performing the contract." Neither party to this dispute takes any exception to that statement.

The order of the district court appealed from was filed April 13, 1990, and the notice of appeal by Movant was filed April 18, 1990. In the meantime, on April 16, 1990, Movant filed a motion for reconsideration, having to do with none of the matters here involved, which was effectively granted by the district court on April 17, 1990. On April 17, 1990, Movant also filed a paper called "Supplemental Memorandum." This paper contained an attachment in the form of a letter agreement between Movant and Subsidiary that the cost and expense of prosecuting the claim against the Army was the sole responsibility of Subsidiary, for the disposition of the proceeds of any recovery, and required Movant's prior consent for settlement at less than a given figure. All in all, the agreement would certainly be evidence which tends to show a joint prosecution by Movant and Subsidiary of the claim against the Army. The record does not show that the letter agreement was before the district court when it entered the order appealed from.

Because of the filing of that paper, we must decide a preliminary question in this appeal. The Government takes the position that that paper is a motion to alter or amend a judgment under FRCP 59, and, since it was not acted upon by the district court prior to the filing of the notice of appeal, the notice of appeal filed by Movant a day later, on April 18, 1990, was of no effect under FRAP 4(a)(4) which provides that a premature notice shall have no effect but that a new notice of appeal must be filed within the prescribed time. Thus, the Government asks us to dismiss the appeal because of the claimed lack of effect of the notice of appeal which was filed on April 18, 1990.

Movant, on the other hand, states that this is an appeal in a criminal case rather than in a civil case. And so, even if the supplemental memorandum amounted to a motion to alter or amend a judgment, our jurisdiction to hear the appeal should not be adversely affected absent prejudice. In this connection, Movant states that the Government had the letter agreement in its possession for a month or two prior to the order of the district court appealed from, so it could not have been prejudiced. Without opportunity to search its papers, the Government's attorney states that he has no recollection of the earlier delivery of the paper one way or the other, but he does not deny receiving it. It may well be that the addition of the letter agreement would...

To continue reading

Request your trial
141 practice notes
  • U.S. v. Bdo Seidman, Llp, No. 05-3260.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 2, 2007
    ...United Food & Commercial Workers, AFL-CIO, 913 F.2d 544, 556 (8th Cir.1990); In re Grand Jury Subpoenas (89-3 & 89-4, John Doe 89-129), 902 F.2d 244, 248 (4th Cir.1990); see also Advisory Committee's Note, Proposed Fed.R.Evid. 503(b), 56 F.R.D. 183, 239 (1972).89 492 F.3d 818 B. Document A-......
  • F.D.I.C. v. Hurwitz, No. CIV.A. H-95-3956.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 23, 2005
    ...Const. art I, § 3, para. 4. 446. 12 U.S.C.A. § 1813(q)(4) (West 1996). 447. Ex. 52. 448. Dkt. 175 at 6-7. 449. In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th 450. Fed.R.Civ.P. 26(b)(4)(B). 451. Ex. 140 at 34-36. 452. Dep. of Joel Hargett, Ex. 177 at 19-20; ex. 180. 453. In re Southern a......
  • John B. v. Goetz, No. 3:98–0168.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • January 28, 2010
    ...among persons with the shared interest, In re Santa Fe Intern. Corp., 272 F.3d 705, 712 (5th Cir.2001), In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir.1990); United States v. Duke Energy Corp., 214 F.R.D. 383, 388 (M.D.N.C.2003), but usually applies to protect documents. See Allenda......
  • Boyd v. Comdata Network, Inc.
    • United States
    • Court of Appeals of Tennessee
    • April 30, 2002
    ...(21 Gratt.) 822 (1871), it has long since been extended to civil proceedings. In re Grand Jury Subpoenas, 89-3 & 89-4, John Doe 89-129, 902 F.2d 244, 249 (4th Cir.1990); Aiken v. Texas Farm Bureau Mut. Ins. Co., 151 F.R.D. 621, 623 (E.D.Tex.1993); Visual Scene, Inc. v. Pilkington Bros., 508......
  • Request a trial to view additional results
142 cases
  • U.S. v. Bdo Seidman, Llp, No. 05-3260.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 2, 2007
    ...United Food & Commercial Workers, AFL-CIO, 913 F.2d 544, 556 (8th Cir.1990); In re Grand Jury Subpoenas (89-3 & 89-4, John Doe 89-129), 902 F.2d 244, 248 (4th Cir.1990); see also Advisory Committee's Note, Proposed Fed.R.Evid. 503(b), 56 F.R.D. 183, 239 (1972).89 492 F.3d 818 B. Document A-......
  • F.D.I.C. v. Hurwitz, No. CIV.A. H-95-3956.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 23, 2005
    ...Const. art I, § 3, para. 4. 446. 12 U.S.C.A. § 1813(q)(4) (West 1996). 447. Ex. 52. 448. Dkt. 175 at 6-7. 449. In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th 450. Fed.R.Civ.P. 26(b)(4)(B). 451. Ex. 140 at 34-36. 452. Dep. of Joel Hargett, Ex. 177 at 19-20; ex. 180. 453. In re Southern a......
  • John B. v. Goetz, No. 3:98–0168.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • January 28, 2010
    ...among persons with the shared interest, In re Santa Fe Intern. Corp., 272 F.3d 705, 712 (5th Cir.2001), In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir.1990); United States v. Duke Energy Corp., 214 F.R.D. 383, 388 (M.D.N.C.2003), but usually applies to protect documents. See Allenda......
  • Boyd v. Comdata Network, Inc.
    • United States
    • Court of Appeals of Tennessee
    • April 30, 2002
    ...(21 Gratt.) 822 (1871), it has long since been extended to civil proceedings. In re Grand Jury Subpoenas, 89-3 & 89-4, John Doe 89-129, 902 F.2d 244, 249 (4th Cir.1990); Aiken v. Texas Farm Bureau Mut. Ins. Co., 151 F.R.D. 621, 623 (E.D.Tex.1993); Visual Scene, Inc. v. Pilkington Bros., 508......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT