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United States v. Doe (In re Grand Jury Investigation) - 810 F.3d 1110 (9th Cir. 2016)


While the attorney-client privilege is arguably most fundamental of the common law privileges recognized under Fed. R. Evid. 501, it is not absolute. Under the crime-fraud exception, communications are not privileged when the client consults an attorney for advice that will serve him in the commission of a fraud or crime. To invoke the crime-fraud exception, a party must satisfy a two-part test; (1) the party must show that the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme; and (2) the party must demonstrate that the attorney-client communications for which production is sought are sufficiently related to and were made in furtherance of the intended, or present, continuing illegality.


Corporation was a call center that marketed a surgical device for medical facilities. The Federal Drug Administration (FDA) opened an investigation and sent warning letters to the Corporation and a few medical centers in California, which stated that, inter alia, the FDA believed the Corporation's advertising violated the Food, Drug, and Cosmetic Act (FDCA) by not providing relevant risk information regarding the use of the device, age and other qualifying requirements for the surgical procedure, and the need for ongoing modification of lifestyle habits. Under the crime-fraud exception to attorney-client privilege, grand jury subpoenas were issued to the three lawyers of the corporation to produce "(1) all communications relating to their correspondence to the FDA, including documents and notes showing the information received and identifying the sources of information for the statements and representations made and (2) retainer agreements and billing records identifying the client(s) who retained and paid for their services in communicating with the FDA on the subject matter of the correspondence." The attorneys provided some information, but they did not fully comply with the subpoenas. The government filed a motion to compel compliance with the subpoenas. 


Should the motion to compel be granted?




The Court vacated the motion and the case was remanded. The district court erred when it broadly ordered the attorneys to produce everything identified in the government's subpoenas, without first examining any specific documents in camera to determine whether they contained communications in furtherance of the asserted crime-fraud. As the In re Napster decision stated, the existence of a prima facie case was only step one of the inquiry as to whether the crime-fraud exception to the attorney-client privilege existed. It held that no evidence had been presented regarding the second step in the analysis as to whether the attorney-client communications for which production was sought were sufficiently related to and were made in furtherance of the intended, or present, continuing illegality.

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