United States Court of Appeals
United States Court of Appeals
United States Court of Appeals
OPINION
1
All documents and briefs in this case have been filed under seal to
protect the secrecy of ongoing grand jury proceedings. Accordingly, we
dispense with a recitation of the facts. We include any facts necessary to
our analysis as appropriate.
IN RE: GRAND JURY PROCEEDINGS #5 3
I.
we have explicitly held that the necessary secrecy of the grand jury pro-
cess prevents the party asserting the privilege from viewing the govern-
ment’s in camera evidence. Id. at 353 (citing In re Grand Jury
Subpoena, 884 F.2d at 126-28). This does not mean that the party assert-
ing the privilege may not seek to rebut the government’s assertion that
the crime-fraud exception should apply and thereby demonstrate that the
government has not proven its prima facie case, rather it means that the
party cannot have access to the allegations in the government’s in cam-
era submission to do so.
6 IN RE: GRAND JURY PROCEEDINGS #5
Our jurisprudence on the application of the crime-fraud exception
to the work product privilege is less well-defined. We have explicitly
held that the crime-fraud exception applies to opinion work product.
In re Doe, 662 F.2d at 1079. We have also found that because the
attorney, as well as the client, has the right to assert the opinion work
product privilege, a prima facie case of crime or fraud must also be
made out against the attorney for the exception to apply.3 In re Grand
Jury Proceedings, 33 F.3d at 349. Thus, while the attorney-client
privilege may be vitiated without showing that the attorney knew of
the fraud or crime, those seeking to overcome the opinion work prod-
uct privilege must make a prima facie showing that the "attorney in
question was aware of or a knowing participant in the criminal con-
duct." Id. If the attorney was not aware of the criminal conduct, a
court must redact any portions of subpoenaed materials containing
opinion work product. Id.
C. In Camera Hearings
In that case, while the appellants urged that Zolin should apply, we
found that "Zolin did not provide a general rule applicable to all in
camera reviews of any materials submitted by parties" and that the
government was thus not required to demonstrate an adequate factual
basis for support of the crime-fraud exception before making an in
camera submission to the district court. In re Grand Jury Proceed-
ings, 33 F.3d at 350. We noted that because the district court had
access to the grand jury’s proceedings from the government’s submis-
IN RE: GRAND JURY PROCEEDINGS #5 9
sion as well as the privilege-holder’s summaries of the allegedly priv-
ileged documents, it was in its discretion to determine whether it was
necessary to review the actual documents. Id. at 351.5
II.
102 F.3d at 751. In In re Grand Jury Proceeding, 33 F.3d 342 (4th Cir.
1994), we held that the abuse of discretion standard governs when
reviewing a district court’s decision that the government presented prima
facie evidence that the crime-fraud exception applies, id. at 349, but that
the de novo standard governs when reviewing a district court’s determi-
nation that documents are not privileged because they do not meet the
definition of attorney-client communications or work product, id. at 353.
Therefore, the abuse of discretion standard properly governs our review
of whether the Government presented prima facie evidence of a crime or
fraud so as to vitiate the asserted privileges in this case. If we were
reviewing whether the communications in this case were privileged, then
the de novo standard of review would be proper.
8
We assume, as did the district court, that the communications sought
are privileged. The Government argues in its brief that Intervenors have
failed to establish that the communications are privileged. Because we
cannot make a ruling on whether the communications are privileged on
the record before us, we leave it to the district court, on remand, to make
this determination.
IN RE: GRAND JURY PROCEEDINGS #5 11
Despite this finding, under prong two of the exception, Intervenors’
privileged communications must bear a close relationship to their
existing or future scheme to commit a crime or fraud. The communi-
cations subpoenaed in this case consist of both documents and testi-
mony. As to the documents, we find that under the "close
relationship" standard, the district court abused its discretion. The dis-
trict court simply could not have concluded that any sort of relation-
ship exists between the allegedly privileged documents and the
alleged crime because it was presented with no evidence of the con-
tents of these documents. Our holding in In re Grand Jury Proceed-
ings, 33 F.3d at 351, is notably distinguishable because the district
court in that case had detailed summaries of the allegedly privileged
documents and, after examining these summaries along with the gov-
ernment’s evidence, determined in its discretion that actual examina-
tion of the documents was not necessary.
III.