VIII. Defenses
Sixth Circuit
• Privileges - Grand Jury Subpoenas
In re Grand Jury Subpoenas, 05-2274 (7/13/06)
> Winget was the previous owner and CEO of the company Venture. The government issued a grand jury subpoena under seal to Venture for documents that potentially could contain information protected by attorney-client and work-product privileges in relation to Winget individually. Winget moved to intervene in the grand jury subpoena matter and requested to be able to have his attorneys review certain documents before they were turned over to the government in order to determine if privilege existed. The government opposed this request and submitted that it would have a “taint team” of prosecutors and agents who were unrelated to the case review the documents for privilege. The district court agreed with the government’s proposal and defendant appealed.
* Holding: The court held that, under the circumstances, Winget’s interest in documents protected by attorney-client and work-product privileges outweighed the grand jury’s investigative authority and the need for grand jury secrecy. The court emphasized that it was not reaching the question of whether either privilege actually existed in the documents, but merely the proper procedure to be used in assessing whether the privilege existed. Accordingly, the court reversed the district court ruling and ordered that Winget’s attorney would be able to conduct the review for privileged documents. In order to ensure timeliness, the court further ordered the district court to appoint a Special Master who would do a preliminary review of the documents subpoenaed and segregate any documents for Winget to review that contained words on a list provided by Winget.
• Privileges - IRS Administrative Subpoenas
U.S. v. Roxworthy, 05-5776 (8/10/06)
> The IRS issued an administrative summons for documents pertaining to defendant’s business. In particular, the IRS sought two documents that were prepared by an audit and consulting firm for defendant that analyzed the tax consequences of certain transactions. Defendant refused to turn over the two documents claiming the work product privilege and the IRS filed a petition in the district court to enforce the summons. The district court granted the petition and ordered defendant to turn over the documents, and defendant appealed.
* Holding: For the first time in a published opinion, the court adopted the “because of” test for determining whether documents are work product. Pursuant to such test, the court analyzes whether a document was prepared because of the prospect of litigation. More specifically, the test involves a two-part inquiry through which the court asks (1) whether the document was created based upon the party’s subjective anticipation of litigation, as opposed to an ordinary business purpose, and (2) whether that subjective anticipation was objectively reasonable. Under the circumstances of the case, the court found that defendant had prepared the two documents because of a subjective expectation of litigation with IRS, and that the expectation was objectively reasonable. Accordingly, the district court ruling was reversed and the IRS summons quashed.
• Privileges - Attorney-Client Privilege
In re: Lott, 05-3532 (9/9/05)
> Defendant was convicted in state court of murder, and after unsuccessful appeals and a federal habeas petition, defendant filed a second habeas petition raising a claim of actual innocence. The district court ruled that, by claiming actual innocence, defendant had implicitly waived his attorney-client privilege, thus allowing the state to depose his attorney to explore any statements made by defendant to his counsel, or other evidence, that was inconsistent with his innocence. Defendant petitioned the Sixth Circuit for mandamus relief from the district court’s order.
* Holding: The court held that a claim of actual innocence does not implicitly waive the attorney-client privilege. Generally, the privilege may be waived by voluntary disclosure of private communications to a third party, by conduct of the client that implies a waiver of the privilege or consent to disclosure, or by claiming ineffective assistance of counsel. The court found, however, no authority for waiving the privilege in the context of an actual innocence claim in a habeas petition. Accordingly, the court issued the writ of mandamus and vacated the district court’s order.