United States v. LeCroy - 348 F. Supp. 2d 375 (E.D. Pa. 2004)

Rule:

Parties to an agreement have the right to modify it. While one party to a contract cannot modify its terms without the assent of the other parties, the fact of agreement as to a modification may be implied from a course of conduct in accordance with its existence.

Facts:

Defendants Charles LeCroy and Anthony C. Snell are charged in Counts 26 and 27 of this indictment with wire fraud under 18 U.S.C. §§ 1343 and 2, for allegedly soliciting and obtaining from Philadelphia attorney Ronald White a false $ 50,000 invoice presented to J.P. Morgan Chase ("JPMC") for legal services purportedly performed by White's law firm. During the grand jury investigation, JPMC, as well as defendants LeCroy and Snell received grand jury subpoenas. The parties retained their own counsels, and subsequently entered into a Joint Defense Agreement. As the government had requested, JPMC subsequently decided that it would produce, pursuant to its grand jury subpoena, the notes and/or memoranda of the meetings between JPMC counsel and LeCroy and Snell. Both before and after return of the indictment, LeCroy and Snell asserted claims of privilege with respect to notes and memoranda of interviews created by counsel for JPMC.

Issue:

Were the notes and memoranda in question protected by the attorney-client privilege or a joint defense agreement (JDA) entered into by counsel for defendants and JPMC?

Answer:

No

Conclusion:

The court refused to protect the interview notes under the modification of the JDA. Modification took place by JPMC’s insisting that it would have to have the right to turn over the notes of its interviews of defendants to the government pursuant to the grand jury subpoena. Defendants, by agreeing to be interviewed by JPMC’s counsel, and knowing that the notes and memoranda of interviews might be turned over to the government, knowingly and intelligently agreed to the modification, and thus waived the protections of the JDA as to those notes and memoranda on a prospective basis. Defendants could have refused to submit to the interviews; what the consequences of their refusal might have been were undetermined but irrelevant.