In re Grand Jury Proceedings, No. 72-1563.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before VAN OOSTERHOUT, Senior Circuit , LAY, Circuit , and DURFEE, United States Court of Claims
• Citation: 473 F.2d 840
• Parties: In the Matter of GRAND JURY PROCEEDINGS. Frank J. DUFFY, Appellant, v. UNITED STATES of America, Appellee.
• Decision Date: 16 January 1973
• Docket Number: No. 72-1563.

473 F.2d 840 (1973)

In the Matter of GRAND JURY PROCEEDINGS.
Frank J. DUFFY, Appellant,
v.
UNITED STATES of America, Appellee.

No. 72-1563.

United States Court of Appeals, Eighth Circuit.

Submitted November 17, 1972.

Decided January 16, 1973.

Rehearing Denied February 12, 1973.

James W. R. Brown, Omaha, Neb., for appellant.

Sidney M. Glazer, Atty., U. S. Dept. of Justice, Washington, D. C., for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, LAY, Circuit Judge, and DURFEE, United States Court of Claims Judge.

473 F.2d 841

VAN OOSTERHOUT, Senior Circuit Judge.

This is an appeal from an order of the Federal District Court adjudging Frank J. Duffy, an attorney, guilty of civil contempt (see 28 U.S.C. § 1826) for his disobedience of an order requiring him to "answer responsively before the Grand Jury any and all questions relating to information furnished by informants contacted by him, who at the time of such contact were not employees of Northern Natural Gas Company Duffy's client or any of its wholly-owned subsidiaries, with respect to matters under inquiry by the Grand Jury and . . . to bring with him all notes, memoranda, or other record of all such contacts." Duffy's disobedience of that order is based on his claim that the demanded information constitutes "work product" procured in behalf of his corporate client and is therefore protected from compelled disclosure before the Grand Jury.¹

The same matter has been before the Eighth Circuit once before pursuant to an appeal from an earlier similar court order issued by the Honorable Richard A. Dier, United States District Judge, District of Nebraska. The appeal was dismissed as being interlocutory. Duffy also petitioned for a writ of mandamus against Judge Dier to vacate his order. We denied the writ. We observed that the record was "silent as to what specific files, documents or memoranda the petitioner seeks to protect or the circumstances under which any such records were obtained." Duffy v. Dier, 465 F.2d 416, 418 (8th Cir., 1972).

Since that decision, the record has been clarified as to both facts and issues. We note that, with respect to matters communicated to Duffy by his corporate client's officers and employees, the District Court held the attorney-client privilege applicable. The contempt order here involved is in no way based on Duffy's refusal to disclose such communications. Thus we do not reach the issue raised by the Government that no attorney-client privilege exists with respect to communications made to Duffy by officers and employees of his client.

Duffy disclosed to the Grand Jury the names of all persons he interviewed in his capacity as attorney for Northern Natural Gas Company, including both employees and nonemployees. A fair reading of the record suggests that all of Duffy's communications with nonemployees were undertaken as an attorney in the course of preparation for anticipated litigation in connection with alleged bribe payments made to public officials by his client and its subsidiaries. The District Court impliedly so found,² and the Government does not contend otherwise. It is also clear that only the content of the nonemployee communications (as opposed to their existence, time, place, or the names of those contacted) is at issue. Moreover, the record indicates that only Duffy's personal recollections and summarizing

473 F.2d 842

notes and memoranda are involved. There is no suggestion that Duffy has possession of written statements prepared or signed by interviewees or verbatim quotations of their oral statements. Further, it is the interviewees' assertions of fact rather than Duffy's legal conclusions or opinions which are at issue. Nor does this case involve what the District Court characterized as an attempt to "ultimately foreclose all Grand Jury investigation." Rather, it concerns an attempt to seal the lips of only one among many possible witnesses before the Grand Jury. Finally, it should be noted that "the fact that the client is a corporation in no way affects the claim of an attorney to his 'work product' privilege." Annot., 35 A.L.R.3d 423 (1971) citing Radiant Burners, Inc. v. American Gas Assoc., 207 F.Supp. 771 (N.D.Ill.), adhered to, 209 F.Supp. 321 (1962), rev'd on other grounds, 320 F.2d 314 (7th Cir.), cert. den. 375 U.S. 929, 84 S.Ct. 330, 11 L.Ed.2d 262 (1963)

Broadly stated, the issue presented by this case is whether the work product doctrine operates to excuse an attorney from testifying before a grand jury with respect to his memoranda and recollections of conversations in anticipation of litigation with persons other than employees of his client corporation.

The preliminary and most difficult aspect of this issue is whether the work product doctrine has any application whatsoever to grand jury proceedings. For the reasons which follow, we hold that it does.

The most direct authority on the question is the case of In re Terkeltoub, 256 F.Supp. 683 (S.D.N.Y.1966). In that case one Fiorillo, Terkeltoub's client, had been indicted for committing perjury before a grand jury when he denied having had certain telephone conversations with one Tony Vone. After the indictment, the United States Attorney received information to the effect that Fiorillo and Terkeltoub had had a meeting with Vone during which they attempted to persuade Vone to testify at Fiorillo's pending perjury trial that he did not have the conversations alleged in the perjury indictment. Subsequently, a grand jury came to inquire whether the alleged meeting between Fiorillo, Terkeltoub and Vone warranted a prosecution for obstruction of justice. Terkeltoub was called before the grand jury and was asked questions concerning the alleged meeting and the conversations which took place pursuant thereto. He refused to answer and the Government brought an application to compel the testimony. The district court held that Terkeltoub could not be compelled to disclose the requested information.

In the instant case, the Government seeks to distinguish Terkeltoub on the grounds that it was based on Fifth and Sixth Amendment considerations which are not applicable to the facts here presented. It is our belief, however, that the work product doctrine formed the predominant basis for the Terkeltoub decision. In its careful and revealing analysis of the interests involved, the Terkeltoub court states:

"On the one hand, there is the heavy weight of history and public need commanding that the grand jury\'s investigations be as unfettered as possible. See, e. g., United States v. Thompson, 251 U.S. 407, 413-415, 40 S.Ct. 289, 64 L.Ed. 333 (1920). And the Government comes here with the laudable purpose of guarding against suspected attacks on the integrity of the judicial process itself. Cf. Massiah v. United States, 377 U.S. 201, 207, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879, 881 (1953), cert. denied, 349 U.S. 930, 75 S.Ct. 773, 99 L.Ed. 1260 (1955). On the other hand, the disclosures now demanded, touch a vital center in the administration of criminal justice, the lawyer\'s work in investigating and preparing the defense of a criminal charge. Appraising these interests in the circumstances now presented, the court concludes that the attorney was not only entitled, but

473 F.2d 843

probably required, to withhold answers to the grand jury\'s questions.

"In explaining this conclusion, it bears emphasis that while the witness before us is a lawyer, the crucial interests at stake belong to the whole community. As a seasoned trial lawyer and Justice said, `it too often is overlooked that the lawyer and the law office are indispensable parts of our administration of justice. * * * The welfare and tone of the legal profession is therefore of prime consequence to society, which would feel the consequences\' of a practice impairing the lawyer\'s effective representation of his client. Hickman v. Taylor, supra, 329 U.S. 495 at 514-515, 67 S.Ct. 385 at 395 91 L.Ed. 451, (Jackson, J., concurring).

* * * * * *

"And so we start here with a demand that is troublesome on its face — a demand that a lawyer be forced to testify about his work in supposed defense of a client. Our problem is not solved, but it is affected, by a recognition that this sort of procedure must have at least a slightly chilling impact upon counsel for defendants in criminal cases. Again, this has nothing to do with whether lawyers for their own sakes should be treated better or worse than other people. It has to do with how the public may fare depending on the course followed with applications like the one before us. . . . At the heart of the job of `thorough-going investigation and preparation\' is the interviewing of prospective witnesses, hostile as well as friendly. And no lawyer, on any side of any case, would consider it salutary for his client that the opposition knew who was being interviewed and what was being said during such meetings. If vivid illustration were needed, it is supplied every day in this courthouse by the Government\'s stout resistance to discovery efforts by defendants in criminal cases. . . .

"And so we focus more closely upon the more limited issue the Government puts: Where the prosecution, presumably with reason, suspects that a witness is being tampered with, may the defense lawyer preparing for trial be compelled to report under oath the existence, time, place, and content of an interview with the witness? Without holding that there could never be an affirmative answer to this question, our conclusion is that it should be answered in the negative on the facts now before us.

"Even in civil litigation, disclosure of this kind will be compelled only in a `rare situation\' that may justify `an exception to the policy underlying the privacy of the attorney\'s professional activities.\' Hickman v. Taylor, supra, 329 U.S. at 513, 67 S.Ct. at 395. Out of abundant caution, we leave open the

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