Saturday, April 13, 2013

In re Grand Jury Subpeona case brief

In re Grand Jury Subpeona case brief summary (Under Seal v. United States)
415 F.3d 333 (4th Cir. 2005)

Defendants, three former employees of a corporation, appealed from an order of the United States District Court for the Eastern District of Virginia, at Alexandria, that denied their motions to quash a grand jury subpoena for documents related to an internal investigation by the corporation, asserting that the documents sought were protected under the attorney-client and joint defense privileges.

OVERVIEW: When the corporation began an internal review into a certain transaction, its inside and outside counsel conducted interviews with the three former employees. Later, the Securities and Exchange Commission (SEC) began to investigate the same transaction. The three employees became targets of a grand jury investigation and one of them was indicted. The former employees sought to quash a subpoena issued by the grand jury to the corporate counsel for the documents relevant to the internal investigation, on the grounds that each appellant had an individual attorney-client relationship with the investigating attorneys, that the interviews were individually privileged, and that they had not waived the privilege. The indicted former employee and the corporation had entered into a common interest agreement.

The district court found, and the appellate court affirmed, that no individual attorney-client privilege attached to the employees' communications with the corporate attorneys.

The employees could not have reasonably believed that the investigating attorneys represented them personally during the time frame covered by the subpoena.

The attorney-client privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

OUTCOME: The judgment of the district court was affirmed.

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