In Re: GRAND JURY SUBPOENA
US Court of Appeals for the Fourth Circuit, Per Curiam, Aug. 18, 2017,
Attorney-Client Privilege – Work Product- Crime/Fraud- A defense attorney not involved in crime/fraud cannot be compelled to give their recollection of a witness interview under the crime/fraud exception

(Concur and dissent- Niemeyer- recollection of witness interview could be limited to facts)

Facts:
A federal prosecutor in North Carolina noticed that an exhibit introduced by the defense appeared to be a forgery. The government requested interviews with the defense attorney and her investigator to inquire further, but they declined to be interviewed. A Grand Jury then issued subpoenas compelling their testimony.
The defense attorney filed a motion to quash the subpoenas, arguing that the government was not entitled to “work product.”
The government stated that it was looking to ask three questions: “(1) Who gave you the fraudulent documents? (2) How did they give them to you, specifically? (3) What did [a specific party under investigation] tell you?”
A judge upheld the subpoenas and the defense appealed.

Held:
The 4th Circuit held that the first two questions were acceptable “fact” work-product and could be compelled, but the third question was “opinion” work-product and could not under these facts.

Attorney-client privilege- Work-product- An attorney’s work done in preparation for litigation is generally protected from discovery.

Attorney-client privilege- Work-product- Because the privilege protects “not just the attorney-client relationship but the interests of attorneys to their own work product, the attorney, as well as the client, hold the privilege.”

Attorney-client privilege- Work-product- “Fact” work-product is a “transaction of the factual events
involved” and may be obtained if there has been a “showing of both a substantial need and an inability to secure the substantial equivalent of the materials by alternate means without undue hardship.”

Attorney-client privilege- Work-product- “Opinion” work-product involves the “actual thoughts and impressions of the attorney” and is more protected.

Attorney-client privilege- Work-product- a lawyer’s recollection of a witness interview constitutes opinion work product entitled to heightened protections.

Attorney-client privilege- Crime/fraud exception- “Fact” work-product may be compelled if material was made “for the purpose of committing or furthering a crime or fraud,” it is significantly less protected.

Attorney-client privilege- Crime/fraud exception- “Opinion” work-product can be compelled if there is a demonstration that the attorney knew or participated in the client’s crime or fraud