In Re Grand Jury Cert Petition

No.
_________
================================================================
In The
Supreme Court of the United States
--------------------------------- ---------------------------------
IN RE: GRAND JURY SUBPOENA
CORPORATION, CLIENT,
Petitioners.
--------------------------------- ---------------------------------
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Third Circuit
--------------------------------- ---------------------------------
PETITION FOR A WRIT OF CERTIORARI
--------------------------------- ---------------------------------
IAN M. COMISKY*
MATTHEW D. LEE
BRIDGET E. MAYER
BLANK ROME LLP
One Logan Square
Philadelphia, PA 19103
(215) 569-5646
comisky-im@blankrome.com
lee-m@blankrome.com
STEPHEN ROBERT LACHEEN
LACHEEN, WITTELS &
GREENBERG, LLP
1429 Walnut Street, 13th Floor
(215) 735-5900
slacheen@concentric.net
Attorneys for Petitioners
*Counsel of Record
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i

QUESTIONS PRESENTED FOR REVIEW

The crime-fraud exception to the attorney-client
privilege has not been examined by this Court since
its decision in United States v. Zolin, 491 U.S. 554
(1989), over 25 years ago. It is generally agreed that
there are two elements to the crime-fraud exception:
(1) the client intended to engage in a crime or fraud
when consulting the attorney; and (2) the attorney-
client communication was used in furtherance of the
crime or fraud. All of the courts of appeals have
examined these requirements, but have reached
widely differing results. This case thus presents the
issue of the proper elements to the crime-fraud
exception.
The present case also presents the issue of the
quantum of proof necessary to satisfy the crime-fraud
exception, an issue left unresolved in Zolin, and the
proper standard to be met prior to an in camera
interview of an attorney-witness for the purpose of
determining the applicability of the exception. This
case further presents the question of whether grand
jury secrecy is violated when a district court conducts
an in camera examination of an attorney-witness
without the presence of counsel for the target.
The questions presented are:
1. Whether the crime-fraud exception to the
attorney-client privilege, last discussed
in Zolin, applies solely because the client
is later accused of committing a crime or

ii

QUESTIONS PRESENTED
FOR REVIEW Continued

fraud, even though the attorney who was
consulted was unable to provide defini-
tive advice and the client believed that
he was acting within the scope of the
law.
2. Whether the government must make a
threshold showing higher than that re-
quired by Zolin, for the in camera exam-
ination of documents, in order for a
district court to conduct an in camera
examination of an attorney-witness for
the purpose of making a crime-fraud
finding.
3. Whether grand jury secrecy requires a
district court to exclude counsel for
grand jury targets from an in camera
judicial examination of an attorney-
witness and permits the district court to
refuse to furnish either a transcript or
a summary of the testimony provided
before ruling on the applicability of the
crime-fraud exception.

iii

LIST OF PARTIES AND
CORPORATE DISCLOSURE STATEMENT

Per the Courts direction, these sections are
omitted from this bound submission. Because this
appeal arises from a grand jury proceeding, Petition-
ers are identified by the pseudonyms used by the
Court of Appeals. A List of All Parties and a Corpo-
rate Disclosure Statement describing Petitioners by
name is being provided to the Court under seal.

iv

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ........ i
LIST OF PARTIES AND CORPORATE DIS-
CLOSURE STATEMENT ................................. iii
TABLE OF CONTENTS ...................................... iv
TABLE OF AUTHORITIES ................................. vii
OPINION BELOW ............................................... 1
JURISDICTION ................................................... 1
CONSTITUTIONAL PROVISION INVOLVED .... 2
INTRODUCTION ................................................ 2
STATEMENT OF THE CASE .............................. 5
A. The Government Serves A Grand Jury
Subpoena On Corporation And Clients
Former Counsel And Moves To Compel
Compliance ................................................ 6
B. The District Courts Order ........................ 6
C. The In Camera Examination Of Attorney ... 7
D. The District Courts Opinion And Order ..... 7
E. Petitioners Appeal ..................................... 9
REASONS FOR GRANTING THE WRIT ........... 10
I. THE THIRD CIRCUITS DECISION
DEEPENS A CIRCUIT SPLIT WITH
RESPECT TO THE INTENT AND IN
FURTHERANCE REQUIREMENTS OF
THE CRIME-FRAUD EXCEPTION .......... 11

v

TABLE OF CONTENTS Continued
Page
A. The Third Circuits Ruling Results
In Application Of The Crime-Fraud
Exception So Long As An Attorney
Was Consulted And The Client Is Later
Accused Of Committing A Crime Or
Fraud .................................................... 13
B. The Third Circuits In Furtherance
Ruling Is Contrary To Holdings Of
Other Circuits ...................................... 16
C. The Court Should Decide The Unre-
solved Issue In Zolin Involving The
Requisite Standard Of Proof For Ap-
plication Of The Crime-Fraud Excep-
tion ....................................................... 19
II. THE COURT SHOULD DETERMINE
THE APPROPRIATE THRESHOLD
STANDARD TO BE APPLIED PRIOR TO
THE IN CAMERA EXAMINATION OF A
WITNESS FOR THE PURPOSE OF
MAKING A CRIME-FRAUD DETERMI-
NATION ..................................................... 25
A. Zolin Does Not Apply With Respect
To In Camera Reviews Of Unrecorded
Communications .................................. 25
B. The Circuit Courts Are Not In Agree-
ment As To The Procedures Applicable
To In Camera Attorney-Witness Inter-
views .................................................... 29

vi

TABLE OF CONTENTS Continued
Page
III. THE COURT SHOULD DECIDE THE
PROCESS THAT IS DUE IN CASES
WHERE AN IN CAMERA EXAMINATION
OF AN ATTORNEY IS PERMITTED ......... 31
CONCLUSION ..................................................... 39

APPENDIX
Opinion of the United States Court of Appeals
for the Third Circuit, dated February 12,
2014 .................................................................. App. 1
Governments Opposition to Petition for Writ of
Certiorari in John Doe 1 v. United States of
America, No. 12-1239 ..................................... App. 26

SEALED SUPPLEMENTAL APPENDIX
Third Circuit Order Staying Mandate ...... Supp. App. 1
Third Circuit Order Denying Rehearing and
Rehearing En Banc ................................ Supp. App. 2
Third Circuit Oral Argument Transcript ... Supp. App. 3
District Courts January 18, 2013 Memoran-
dum ....................................................... Supp. App. 74
Letter to District Court Enclosing Questions
for Attorney .......................................... Supp. App. 82
District Courts November 13, 2012 Memoran-
dum ....................................................... Supp. App. 90

vii

TABLE OF AUTHORITIES
Page
CASES
Alabama v. White, 496 U.S. 325 (1990) ..................... 23
Anaya v. United States, 815 F.2d 1373 (10th
Cir. 1987) ........................................................... 34, 38
Appeal of Catania, 682 F.2d 61 (3d Cir. 1982) ........... 32
Appeal of Hughes, 633 F.2d 282 (3d Cir. 1980) .......... 34
Blalock v. United States, 844 F.2d 1546 (11th
Cir. 1988) ........................................................... 34, 35
Bourjaily v. United States, 483 U.S. 171 (1987) ........ 23
Clark v. United States, 289 U.S. 1 (1933) .......... passim
Cox v. Admr U.S. Steele & Carnegie, 17 F.3d
1386 (11th Cir. 1994) ............................................... 12
Davies v. Commr, 68 F.3d 1129 (9th Cir. 1995) ........ 34
Hickman v. Taylor, 329 U.S. 495 (1947) .................... 29
In re Antitrust Grand Jury, 805 F.2d 155 (6th
Cir. 1986) ........................................................... 13, 17
In re BankAmerica Corp. Secs. Litig., 270 F.3d
639 (8th Cir. 2001) ............................................ 12, 13
In re Grand Jury, 705 F.3d 133 (3d Cir.
2012) ...................................................... 20, 21, 22, 24
In re Grand Jury Investigation, 352 F. Appx
805 (4th Cir. 2009) .................................................. 12
In re Grand Jury Investigation, 445 F.3d 266
(3d Cir. 2006) ..................................................... 12, 30

viii

TABLE OF AUTHORITIES Continued
Page
In re Grand Jury Investigation, 610 F.2d 202
(5th Cir. 1980) ................................................... 33, 35
In re Grand Jury Matter, 697 F.2d 511 (3d Cir.
1982) ........................................................................ 32
In re Grand Jury Proceeding, 68 F.3d 193 (7th
Cir. 1995) ................................................................. 34
In re Grand Jury Proceedings # 5, 401 F.3d 247
(4th Cir. 2005) ....................................... 13, 17, 21, 22
In re Grand Jury Proceedings, 417 F.3d 18 (1st
Cir. 2005) ......................................... 12, 13, 15, 21, 22
In re Grand Jury Proceedings, 486 F.2d 85 (3d
Cir. 1973) ................................................................. 27
In re Grand Jury Proceedings, 609 F.3d 909
(8th Cir. 2010) ......................................................... 21
In re Grand Jury Proceedings, 851 F.2d 860
(6th Cir. 1988) ......................................................... 38
In re Grand Jury Subpoena, 223 F.3d 213 (3d
Cir. 2000) ................................................................. 22
In re Grand Jury Subpoena, 419 F.3d 329 (5th
Cir. 2005) ............................................... 17, 21, 22, 31
In re Grand Jury Subpoena, 920 F.2d 235 (4th
Cir. 1990) ................................................................. 32
In re Grand Jury Subpoena as to C97-216, 187
F.3d 996 (8th Cir. 1999) .......................................... 31
In re Grand Jury Subpoenas, 144 F.3d 653
(10th Cir. 1998) ........................................... 17, 22, 34
ix

Page
In re Grand Jury Subpoenas Duces Tecum, 798
F.2d 32 (2d Cir. 1986) .............................................. 17
In re John Doe, Inc., 13 F.3d 633 (2d Cir.
1994) .................................................................. 29, 30
In re Napster, Inc. Copyright Litig., 479 F.3d
1078 (9th Cir. 2007) .............................. 12, 17, 19, 22
In re Richard Roe, Inc., 68 F.3d 38 (2d Cir.
1995) ........................................................................ 12
In re Sealed Case, 107 F.3d 46 (D.C. Cir.
1997) ............................................................ 14, 18, 22
In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982) ....... 16
In re Sealed Case, 754 F.2d 395 (D.C. Cir.
1985) .................................................................. 12, 17
In re Six Grand Jury Witnesses, 979 F.2d 939
(2d Cir. 1992) ........................................................... 34
In re Special March 1981 Grand Jury, 753 F.2d
575 (7th Cir. 1985) .................................................. 33
Loughrin v. United States, ___ S.Ct. ___, 2014
WL 2807180 (2014) ................................................. 22
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100
(2009) ................................................................. 11, 12
Nara v. Frank, 494 F.3d 1132 (3d Cir. 2007) ............. 10
Perlman v. United States, 247 U.S. 7 (1918) ............... 9
Pritchard-Keang Nam Corp. v. Jaworski, 751
F.2d 277 (8th Cir. 1984) .......................................... 15
x

Page
Senate of Puerto Rico ex rel. Judiciary Comm.
v. United States DOJ, 823 F.2d 574 (D.C. Cir.
1987) ........................................................................ 33
United States v. Bauer, 132 F.3d 504 (9th Cir.
1997) ........................................................................ 17
United States v. Boender, 649 F.3d 650 (7th Cir.
2011) ............................................................ 21, 22, 30
United States v. Cleckler, 265 F. Appx 850
(11th Cir. 2008) ........................................................ 22
United States v. Clem, 210 F.3d 373, 2000 WL
353508 (6th Cir. Mar. 31, 2000) .............................. 21
United States v. Collis, 128 F.3d 313 (6th Cir.
1997) .................................................................. 12, 21
United States v. Dynavac, Inc., 6 F.3d 1407 (9th
Cir. 1993) ........................................................... 33, 38
United States v. Eastern Air Lines, Inc., 923
F.2d 241 (2d Cir. 1991) ............................................ 32
United States v. Jacobs, 117 F.3d 82 (2d Cir.
1997) ............................................................ 17, 21, 22
United States v. John Doe, Inc. I, 481 U.S. 102
(1987) ....................................................................... 37
United States v. Phillips, 843 F.2d 438 (11th
Cir. 1988) ................................................................. 35
United States v. Williams, 504 U.S. 36 (1992) ........... 27
United States v. Zolin, 491 U.S. 469 (1989) ....... passim

xi

Page
CONSTITUTION
U.S. Const. amend. V ......................................... passim

STATUTES
28 U.S.C. 1254(1) ....................................................... 1
Foreign Corrupt Practices Act (FCPA), 15
U.S.C. 78dd-1 et.seq. .................................... 5, 9, 16

OTHER AUTHORITIES
Cary Bricker, Revisiting the Crime-Fraud
Exception to the Attorney-Client Privilege: A
Proposal to Remedy the Disparity in Protec-
tions for Civil and Criminal Privilege Hold-
ers ............................................................................ 20
Crime-Fraud Ruling Forces Lawyer to Testify in
Grand Jury Investigation of Former Clients,
BNA Snapshot, February 18, 2014 ......................... 27
Edna Selan Epstein, The Attorney-Client
Privilege and the Work Production Doctrine,
Volume I at 690 (5th ed. 2007) ............................... 15
Fed. R. Crim. P. 6(e) ............................................ passim
James M. Fischer, The Crime-Fraud Exception
to Privilege ............................................................... 20
The New Wigmore: Evidentiary Privileges
6.13.2d .................................................................. 24
Winter 2012 American Bar Association ..................... 20
1
Petitioners Corporation and Client respectfully
request that a writ of certiorari issue to review the
opinion of the court of appeals.
1

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OPINION BELOW
The pertinent appellate decision is reported at
745 F.3d 681 and reprinted at App. 1-25. The two
memorandum decisions of the district court were filed
under seal and have not been published. The memo-
randum decisions have been submitted to the Court
in a sealed Supplemental Appendix. The appellate
court mandate was stayed on April 23, 2014. Supp.
App. 1.
--------------------------------- ---------------------------------

JURISDICTION
The Judgment sought to be reviewed was entered
on February 12, 2014. Petitioners petition for hearing
en banc was denied on April 11, 2014. Supp. App. 2.
Jurisdiction lies under 28 U.S.C. 1254(1), and this
petition is timely filed on or before July 10, 2014.
--------------------------------- ---------------------------------

1
Because this appeal arises from a grand jury proceeding,
Petitioners are identified by the pseudonyms used by the court
of appeals.
2
CONSTITUTIONAL PROVISION INVOLVED
U.S. Const. amend V.
No person shall be held to answer for a capi-
tal, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury,
except in cases arising in the land or naval
forces, or in the Militia, when in actual ser-
vice in time of War or public danger; nor shall
any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be
a witness against himself, nor be deprived of
life, liberty, or property, without due process
of law; nor shall private property be taken for
public use, without just compensation.
--------------------------------- ---------------------------------

INTRODUCTION
1. The attorney-client privilege is designed to
encourage full and frank communication between
attorneys and their clients. United States v. Zolin,
491 U.S. 469, 562 (1989). While the crime-fraud
exception is traceable to Clark v. United States, 289
U.S. 1 (1933), the Court has never established a clear
standard that federal courts should employ to set
aside the privilege. The circuit courts, while in disa-
greement as to the standard to be applied, have
recognized that the crime-fraud exception requires an
evidentiary showing of both intent to misuse the
attorneys advice and the clients use of that advice in
furtherance of a crime or fraud.
3
The Third Circuits decision permits a district
court to make a finding of pre-existing wrongful
intent whenever a client consults an attorney as to
the scope of the law and is later accused of commit-
ting a crime or fraud. Because attorneys routinely
discuss the law with their clients, the effect of the
Third Circuits presumption is that the intent ele-
ment will be found, and the privilege breached, in
virtually every case. A circuit conflict exists as to the
intent requirement.
With respect to the in furtherance element of
the crime-fraud exception, this Court long ago indi-
cated that an evidentiary showing that attorney
advice was used to facilitate a crime or fraud is
required. While the circuit courts are in disagreement
as to the in furtherance element as well, several
circuit courts have recognized that the in further-
ance element is not met when a client ignores, or
acts contrary to, attorney advice. The Third Circuits
decision permits the application of the crime-fraud
exception whenever an attorney is consulted and the
client is subsequently accused of committing a crime
or fraud, regardless of whether the client is provided
correct or incorrect advice, or even in a case like this
one where no definitive advice was given. The Third
Circuits holding boils down to a logical fallacy: post
hoc, ergo proper hoc.
Beyond the elements that must be shown in
order to vitiate the privilege, the quantum of proof
that must be presented has been left unanswered
since Zolin. This issue has been explored by the
4
district and circuit courts for over 25 years. The
circuit courts employ a variety of standards resulting
in, at least, a tripartite circuit split. The Third Cir-
cuits application of the reasonable basis to suspect
standard, one that is significantly less demanding
than those adopted in other circuits, was outcome
determinative in this concededly close case. Addi-
tionally, the Third Circuits reasonable basis to sus-
pect standard is indistinguishable from the threshold
standard for in camera review of documents estab-
lished by this Court in Zolin. See Zolin, 491 U.S. at
572.
2. This case also presents important and unre-
solved questions concerning the use of in camera
proceedings with respect to the appropriate threshold
showing required prior to an in camera examination
of an attorney-witness for the purpose of reviewing
unrecorded oral communications. The Court has held
that in camera review may be used to determine
whether documented privileged communications fall
within the crime-fraud exception, but only upon the
presentation of evidence sufficient to support a
reasonable belief that in camera review may yield
evidence that establishes the exceptions applicabil-
ity. Zolin, 491 U.S. at 574-75. Reviewing unrecorded
oral communications is a much more intrusive inva-
sion of the privilege than the mere examination of
documents and, as was recognized by the circuit
court, significant concerns with respect to the attor-
neys memory arise in such circumstances. App. 13.
5
The Third Circuits decision invites the district court
to assume the role of the prosecutor in the case.
3. The district courts refusal to permit Peti-
tioners to attend the in camera examination of the
attorney-witness, or to review a transcript thereof,
was based upon an improper expansion of the scope of
grand jury secrecy, resulting in a denial of due pro-
cess. Circuit courts have generally agreed that Fed.
R. Crim. P. 6(e) protects only what is said or takes
place in the grand jury room, and not information
that exists separate and apart from those proceed-
ings. With this decision, the Third Circuit now holds
that information not yet before the grand jury can be
protected based on the possibility that such infor-
mation may reflect evidence to be submitted to the
grand jury. This ruling extends grand jury secrecy
beyond any other circuit courts decisions and is
inconsistent with this Courts precedents.
--------------------------------- ---------------------------------

STATEMENT OF THE CASE
Petitioners Corporation and Client, a consulting
and risk management firm and Corporations Presi-
dent and Managing Director, respectively, are targets
of a grand jury investigation into an alleged scheme
to make corrupt payments in violation of the Foreign
Corrupt Practices Act (FCPA), 15 U.S.C. 78dd-1
et seq.

6
A. The Government Serves A Grand Jury
Subpoena On Corporation And Clients
Former Counsel And Moves To Compel
Compliance
On May 25, 2012, the government served a grand
jury subpoena on Corporation and Clients former
counsel (Attorney), who rented office space at
Corporations offices and who provided legal advice to
Petitioners. Petitioners moved to quash the subpoena.
On June 18, 2012, the government filed a motion
to enforce the subpoena seeking an order directing
Attorney to provide testimony before the grand jury
based upon the crime-fraud exception. The govern-
ment filed an ex parte submission summarizing
information allegedly obtained by an FBI agent in the
investigation of Petitioners. Petitioners intervened to
oppose the motion.

B. The District Courts Order
On November 13, 2012, the district court ruled
that it would conduct an in camera examination of
Attorney, outside the presence of the government and
Petitioners, to determine whether the crime-fraud
exception applied. Supp. App. 100-101; App. 6. The
district court concluded that the standard set out in
Zolin for in camera review of documents for the
purpose of making a crime-fraud determination also
applied to the taking of testimony as to privileged
communications. Supp. App. 97-101. The district
court held that the government had met its burden
7
for in camera review under Zolin, because the gov-
ernment had provided enough information in its ex
parte declaration to support a good faith belief that
examining [Attorney] in camera may reveal evidence
that the crime-fraud exception applies. Supp. App. 97.
Petitioners thereafter requested that the district
court release the transcript of Attorneys testimony,
or a redacted version, or a summary thereof, to ena-
ble Petitioners to respond to the governments crime-
fraud assertion. On December 14, 2012, the district
court ordered Attorney to appear for an in camera
judicial interview. Attorney was permitted to be
represented by his own counsel, but Petitioners and
the government were excluded. Petitioners and the
government were permitted to submit proposed ques-
tions; the district court observed that the questions
submitted were substantially similar. Supp. App.
78; App. 6.

C. The In Camera Examination of Attorney
On January 8, 2013, the district court conducted
an in camera examination of Attorney. On January
15, 2013, Petitioners renewed their request that the
district court release to Petitioners the transcript of
Attorneys testimony, or at least a summary thereof.

D. The District Courts Opinion and Order
On January 18, 2013, the district court granted
the governments motion to enforce, and directed
Attorney to testify before the grand jury. The district
8
court refused to release any of Attorneys testimony,
stating that the transcript almost certainly reflects a
preview of [Attorney]s eventual grand jury testimony,
i.e., for the same reasons that the district court
excluded [Petitioners] from the in camera interview of
[Attorney], secrecy concerns outweigh any need for
[Petitioners] to review the transcript of [Attorney]s
in camera interview. Supp. App. 78.
2

The district court did not hold that Petitioners
used the advice of the Attorney to commit a crime or
fraud, but found that Petitioners could have done so,
stating that [Client] and [Corporation] intended to
commit a crime when [Attorney] was consulted for
legal advice regarding the [ ] transaction and could
have easily used it to shape the contours of conduct
intended to escape the reaches of the law. Supp. App.
81. The district court concluded that Attorneys
testimony and the governments ex parte submission
provided a reasonable basis to conclude that [Attor-
ney]s advice was used by Client and Corporation to
fashion conduct in furtherance of that crime. Id.

2
Because Petitioners have no copy of the transcript of
Attorneys in camera interview, it has not been included in the
appendices. Petitioners believe the circuit court has the tran-
script based upon facts outlined in the panel opinion.
9
E. Petitioners Appeal
Petitioners timely appealed, and the district
court granted a stay of its order.
3
On February 12,
2014, the Third Circuit affirmed the district courts
opinion in its entirety. The panels opinion set forth
certain facts, not contained in the record below, based
upon statements apparently made by Attorney in
camera to the district court:
In April 2008, Client approached Attorney
to discuss issues he was having with the
project. Client explained that he planned
on paying Banker in order to ensure that
the project progressed swiftly, as Banker
was threatening to slow down the approval
process. Attorney did some preliminary re-
search, found the FCPA, and asked Client
whether the Bank was a government entity
and whether Banker was a government offi-
cial. Although Attorney could not ascertain
given his limited research whether the planned
action was legal or illegal, he advised Client
not to make the payment. Despite this advice,
Client insisted that his proposed payment
did not violate the FCPA, and informed
Attorney that he would go ahead with the
payment. Attorney gave Client a copy of the
FCPA.

3
The Third Circuit had jurisdiction pursuant to Perlman v.
United States, 247 U.S. 7 (1918), which authorizes an immediate
appeal from a discovery order directed at a disinterested third-
party regarding privileged testimony.
10
App. 5.
4
Petitioners petition for rehearing and rehear-
ing en banc was denied on April 11, 2014. Significantly,
the Third Circuit stayed its mandate pending the
disposition of this petition. Supp. App. 1.
5

--------------------------------- ---------------------------------

REASONS FOR GRANTING THE WRIT
This is an extraordinary case involving the appli-
cation of the crime-fraud exception to the attorney-
client privilege. The district court found that the
government established a reasonable basis to suspect
that Corporation and Client intended to commit a
crime when Attorney was consulted, and that Attor-
neys advice could have been used to shape criminal
conduct. Supp. App. 81. The circuit court affirmed
despite acknowledging that this was a close case,
and despite the fact that Client thought his conduct
was proper and Attorney did not provide definitive
advice. App. 5, 19.
This case involves well-developed circuit court
conflicts with respect to the application of the crime-
fraud exception. This case also involves a significant
issue of first impression regarding the showing to be

4
The project referenced involved oil and gas deals where
Petitioners were retained to provide financing assistance. App.
4-5.

5
The Third Circuit thus found that there was a reasonable
probability that this Court would grant certiorari and that at
least five Justices would vote to reverse. See Nara v. Frank, 494
F.3d 1132, 1133 (3d Cir. 2007).
11
made prior to a district courts in camera examination
of a live attorney-witness for purposes of determining
the applicability of the crime-fraud exception; coupled
with a circuit split regarding the permissible scope of
grand jury secrecy. The Court should grant certiorari
because the circuit courts resolution of these issues
serves to all but destroy the privilege in the grand
jury setting.

I. THE THIRD CIRCUITS DECISION DEEP-
ENS A CIRCUIT SPLIT WITH RESPECT
TO THE INTENT AND IN FURTHERANCE
REQUIREMENTS OF THE CRIME-FRAUD
EXCEPTION
This Court has long recognized the paramount
importance of the attorney-client privilege. See, e.g.,
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 108
(2009) (We readily acknowledge the importance of
the attorney-client privilege.) (internal quotation
omitted). The privilege is primarily concerned with
encourag[ing] full and frank communication between
attorneys and their clients and thereby promot[ing]
broader public interests in the observance of law and
administration of justice. Zolin, 491 U.S. at 562
(quoting Upjohn v. United States, 449 U.S. 383, 389
(1981)).
This Court first mentioned the crime-fraud
exception that [a] client who consults an attorney
for advice that will serve him in the commission of a
fraud will have no help from the law almost a
12
century ago in Clark, 289 U.S. at 15. In Zolin, the
Court stated that the crime-fraud exception applies
when attorney-client communications were made in
furtherance of a future crime or fraud. 491 U.S. at
563.
The courts of appeals generally agree that there
are two elements that the government must establish
in order invoke the crime-fraud exception: (1) the
client was committing or intended to commit a fraud
or crime (the intent element), and (2) the client used
the attorney-client communication in furtherance of
the alleged crime or fraud (the in furtherance ele-
ment). See, e.g., In re Grand Jury Proceedings, 417
F.3d 18, 22 (1st Cir. 2005); In re Richard Roe, Inc., 68
F.3d 38, 40 (2d Cir. 1995); In re Grand Jury Investiga-
tion, 445 F.3d 266, 274 (3d Cir. 2006); In re Grand
Jury Investigation, 352 F. Appx 805, 808 (4th Cir.
2009); United States v. Collis, 128 F.3d 313, 321 (6th
Cir. 1997); In re BankAmerica Corp. Secs. Litig., 270
F.3d 639, 642 (8th Cir. 2001); In re Napster, Inc.
Copyright Litig., 479 F.3d 1078, 1090 (9th Cir. 2007),
abrogated on other grounds by Mohawk, 558 U.S. at
106 n.1; Cox v. Admr U.S. Steele & Carnegie, 17 F.3d
1386, 1416 (11th Cir. 1994); In re Sealed Case, 754
F.2d 395, 399 (D.C. Cir. 1985). The Third Circuits
decision in this case deepens the circuit split with
respect to both the intent and in furtherance ele-
ments of this test.

13
A. The Third Circuits Ruling Results In
Application Of The Crime-Fraud Ex-
ception So Long As An Attorney Was
Consulted And The Client Is Later
Accused Of Committing A Crime Or
Fraud
Prior to the Third Circuits decision, circuit courts
and commentators recognized that the crime-fraud
exception required evidence of specific client intent to
utilize attorney advice in furtherance of a crime or
fraud. See, e.g., In re Grand Jury Proceedings, 417
F.3d at 23 (The crime-fraud exception requires the
clients engagement in criminal or fraudulent activity
and the clients intent with respect to attorney-client
communications.); In re Grand Jury Proceedings # 5,
401 F.3d 247, 251 (4th Cir. 2005) ([W]e have held
that it is the clients knowledge and intentions that
are of paramount concern. . . .); In re BankAmerica
Corp. Secs. Litig., 270 F.3d at 642 ([I]t is the clients
intent to further a crime or fraud that must be
shown.); In re Antitrust Grand Jury, 805 F.2d 155,
168 (6th Cir. 1986) ([M]erely because some commu-
nications may be related to the crime is not enough
. . . ; the communication must have been made with
an intent to further the crime.).
The Third Circuits decision departed from these
well-settled principles. Although the panel initially
recognized that the crime-fraud exception does not
apply where a client consults an attorney about a
possible course of action and later forms the intent to
commit a crime, App. 19, it created a presumption of
14
pre-existing wrongful intent whenever a client con-
sults an attorney and is later accused of a crime or
fraud. App. 21. This holding is extraordinary. The
district court did not find that the advice was em-
ployed improperly, but that the advice could have
easily [been] used by the Client in furtherance of a
crime. The circuit court stated that the Client in-
formed the Attorney of his belief that the proposed
payment was not in violation of the law and the
Attorney did not provide definitive advice, but none-
theless held that the exception applied. App. 5.
The Third Circuits decision conflicts with the
rulings of other circuit courts. In In re Sealed Case,
the D.C. Circuit found that government evidence that
a grand jury target discussed campaign finance laws
at a meeting was insufficient to show the requisite
intent. In re Sealed Case, 107 F.3d 46, 50 (D.C. Cir.
1997). The court reasoned that:
One cannot reasonably infer from the meeting
that the Company was consulting its general
counsel with the intention of committing a
crime, or even that the vice president was
then doing so. . . . There is nothing necessari-
ly suspicious about the officers of this corpo-
ration getting such advice. True enough,
within weeks of the meeting about campaign
finance law, the vice president violated that
law. But the government had to demonstrate
that the Company sought the legal advice
with the intent to further its illegal conduct.
15
The Eighth Circuit has held an alleged fraud that
occurs after sharing a report with counsel is insuffi-
cient to breach the privilege. Pritchard-Keang Nam
Corp. v. Jaworski, 751 F.2d 277, 283 n.5 (8th Cir. 1984)
(That the fraud merely follows the attorney-client
communication does not alone support discovery.).
The First Circuit also has held that consultation with
counsel is insufficient to establish a wrongful intent.
In re Grand Jury Proceedings, 417 F.3d at 24 ([t]here
is scant evidence that these clients purpose in retain-
ing Lawyer II was to use his services in furtherance
of a crime or fraud.). It is hornbook law that if the
purpose for which the communications were made and
the advice sought was innocent, it will not be dis-
coverable, even if the client subsequently committed
some fraud. Edna Selan Epstein, The Attorney-Client
Privilege and the Work Product Doctrine, Volume I at
690 (5th ed. 2007).
The Third Circuits decision effectively eliminates
the intent element of the crime-fraud exception
because the requisite intent will be found in every
case in which a client consults an attorney about
a course of action and is later accused of committing
a crime or fraud.
6
Indeed, as recognized at oral

6
One member of the Third Circuit panel recognized the
danger of assuming bad intent by a client whenever a consul-
tation is followed by an alleged violation of the law. Supp. App.
38. The Third Circuit nevertheless held that the crime-fraud
exception applied, failing to explain how its decision did not run
afoul of this proposition.
16
argument, any time an attorney provides information
to support a legal assessment, an intelligent client
can figure out a better way to commit a crime wheth-
er they had a pre-existing intent to violate the law or
not. Supp. App. 67.
The error in the Third Circuits ruling is particu-
larly evident because there appears to have been no
evidence of criminal or fraudulent intent on the part of
Corporation or Client at the time Attorney was con-
sulted. The only information presented was the gov-
ernments ex parte assertion of a later FCPA violation.
More must be required if the privilege is to remain
viable. See Clark, 289 U.S. at 15 (It is obvious that
it would be absurd to say that the privilege could
be got rid of merely by making a charge of fraud.).
The Court should grant the writ to prevent the
continuing erosion of the privilege.

B. The Third Circuits In Furtherance
Ruling Is Contrary To Holdings Of
Other Circuits
This Court has stated that an attorneys advice
must be used to facilitate a crime or fraud in some
way in order for the in furtherance element to be
met. Clark, 289 U.S. at 15. The circuits have stated
the in furtherance element in different ways. See In
re Sealed Case, 676 F.2d 793, 815 (D.C. Cir. 1982)
(recognizing that district courts have disagreed with
respect to the degree of relatedness required to
meet the in furtherance element and citing cases).
17
The Fourth Circuit requires a close relationship
between the communications and the alleged viola-
tion. In re Grand Jury Proceedings # 5, 401 F.3d at
251. The Second Circuit requires a purposeful nex-
us. In re Grand Jury Subpoenas Duces Tecum, 798
F.2d 32, 34 (2d Cir. 1986). The Ninth Circuit requires
that the communications be sufficiently related to
and made in furtherance of the intended crime. In
re Napster, Inc., 479 F.3d at 1090 (emphasis in origi-
nal); see also In re Grand Jury Subpoena, 419 F.3d
329, 347 (5th Cir. 2005) (requiring that communica-
tions be reasonably related to the furtherance of
crime or fraud); In re Antitrust Grand Jury, 805 F.2d
at 168 (communications must be shown to be related
to crime or fraud); In re Grand Jury Subpoenas, 144
F.3d 653, 660 (10th Cir. 1998) (requiring evidentiary
showing that assistance was obtained in furtherance
of the conduct or was closely related to it.); In re
Sealed Case, 754 F.2d at 399 (requiring showing of
some relationship between the communication and
the prima facie violation). These differing approaches
should be resolved by the Court.
Several circuit courts have held that the crime-
fraud exception does not apply if a client simply
ignores attorney advice. See, e.g., United States v.
Bauer, 132 F.3d 504, 509-10 (9th Cir. 1997) (rejecting
application of crime-fraud exception when client
did precisely the opposite of what he was told);
United States v. Jacobs, 117 F.3d 82, 88 (2d Cir. 1997)
(A wrongdoers failure to heed the advice of his
or her lawyer does not remove the privilege. The
18
attorney-client privilege is strongest where a client
seeks counsels advice to determine the legality of
conduct before taking action.); In re Sealed Case, 107
F.3d at 50 (crime-fraud standard not met when from
the material before the district court, there was no
way of knowing or even guessing whether the vice
president was on a frolic of his own, against the
advice of Company counsel, when he reimbursed the
donors with corporate funds.).
The Third Circuits decision to affirm application
of the crime-fraud exception, as crafted by the district
court, deepens the circuit split with respect to the in
furtherance element. In its opinion, the Third Circuit
noted that Attorney was unable to determine whether
the proposed action of Client was legal, but that
Attorney advised Client not to make the payment.
App. 5. The Third Circuit noted that Client still
thought the payment would be legal, and Attorney
did not dispute this belief, but concluded, contrary to
the holdings of other circuit courts, that the crime-
fraud exception applied. App. 5, 21. It is far too easy
for a district court to assert, post hoc, that the advice
could possibly have been used to shape the clients
alleged misconduct. Not only has the Third Circuit
departed from the well-reasoned decisions of other
circuits that crime-fraud does not apply if the client
ignores the attorneys advice, but it went a step
further by holding that even when an attorney fails to
provide definitive advice, the in furtherance element
can be met so long as some law was discussed with
the client. App. 5, 21.
19
Under the Third Circuits view, bad intent can be
divined no matter if the attorney provides correct
advice that is ignored, incorrect advice, or no advice
at all. The Third Circuits conclusion therefore falls
into the logical fallacy of post hoc, ergo proper hoc,
and conflicts with the law of other circuits.

C. The Court Should Decide The Unresolved
Issue In Zolin Involving The Requisite
Standard Of Proof For Application Of
The Crime-Fraud Exception
In Clark, this Court discussed the crime-fraud
exception in a case arising out of juror misconduct,
stating that the party seeking to overcome the
attorney-client privilege must make a prima facie
showing. 289 U.S. at 15 ([t]o drive the privilege away
. . . there must be prima facie evidence that it has
some foundation in fact.) (internal citation omitted).
Over fifty years later, in Zolin, this Court addressed
the standard for reviewing documents in camera in
order to determine the applicability of the crime-
fraud exception, but left unanswered the question of
the quantum of proof necessary to ultimately satisfy
the exception. 491 U.S. at 565 n.7.
In the 25 years since Zolin, the quantum of
proof issue has been examined by numerous district
and circuit courts. Each circuit court has addressed
this issue, but no consensus has been reached.
See, e.g., In re Napster, Inc., 479 F.3d at 1091, 1093
(Despite the fundamental importance and long history
of the attorney-client privilege and the crime-fraud
20
exception, the procedures for preserving the privilege
against a crime-fraud challenge are surprisingly
unclear. . . . Both before and after Zolin, the lower
courts have struggled with the meaning of prima
facie case. . . .). The disagreement amongst the cir-
cuits is well-recognized by courts and commentators
alike. See, e.g., In re Grand Jury, 705 F.3d 133, 152
(3d Cir. 2012) (courts of appeals are divided as to the
appropriate quantum of proof necessary to make a
prima facie showing.); James M. Fischer, The Crime-
Fraud Exception to Privilege, 41-WTR BRIEF 30, at
*33 (Winter 2012 American Bar Association) (Courts
have identified different thresholds for establishing a
prima facie case.); Cary Bricker, Revisiting the Crime-
Fraud Exception to the Attorney-Client Privilege: A
Proposal to Remedy the Disparity in Protections for
Civil and Criminal Privilege Holders, 82 Temple L.
Rev. 149, 174 (2009) (the current scheme [is one]
where uncertainty caused by the [current] lack of
uniform standards and procedures surrounding the
application of the crime-fraud exception leaves [that]
exception vulnerable to abuse) (internal quotation
omitted).
The Third Circuit recognized that there is at
least a tripartite split with respect to the quantum of
proof required to pierce the privilege:
Courts of appeals have articulated the proper
measure of proof in different ways. Some
require there to be probable cause or a
reasonable basis to suspect or believe that
the client was committing or intending to
21
commit a crime or fraud and that the
attorney-client communications were used in
furtherance of the alleged crime or fraud. See
In re Grand Jury Proceedings, 417 F.3d at 23
& n.4; United States v. Jacobs, 117 F.3d 82,
87 (2d Cir. 1997); United States v. Collis, 128
F.3d 313, 321 (6th Cir. 1997); In re Grand
Jury Proceedings, 87 F.3d 377, 381 (9th Cir.
1996). Other courts call for evidence sufficient
to compel the party asserting the privilege to
come forward with an explanation for the
evidence offered against the privilege. See
United States v. Boender, 649 F.3d 650, 655-
56 (7th Cir. 2011); In re Grand Jury Sub-
poena, 419 F.3d 329, 336 (5th Cir. 2005). Still
other courts demand a showing of evidence
that, if believed by a trier of fact, would
establish that some violation was ongoing or
about to be committed and that the attorney-
client communications were used in further-
ance of that scheme. See In re Grand Jury,
475 F.3d 1299, 1305 (D.C.Cir. 2007); In re
Grand Jury Proceedings # 5 Empanelled
January 28, 2004, 401 F.3d 247, 251 (4th Cir.
2005); In re Grand Jury Investigation, 842
F.2d 1223, 1226-27 (11th Cir. 1987).
In re Grand Jury, 705 F.3d at 152.
7

7
Petitioners believe that the split is even greater. Some
circuits require either probable cause or a reasonable basis to
suspect that the client was committing or intended to commit a
crime or fraud and that attorney advice was used in furtherance
thereof. See In re Grand Jury Proceedings, 609 F.3d 909, 912
(8th Cir. 2010); United States v. Clem, 210 F.3d 373, 2000 WL
(Continued on following page)
22
Until recently, the Third Circuit had stated that
the quantum of proof consists of evidence which, if
believed by the fact-finder, would be sufficient to sup-
port a finding that the elements of the crime-fraud
exception were met. In re Grand Jury Subpoena, 223
F.3d 213, 217 (3d Cir. 2000) (quoting Haines v. Liggett
Group Inc., 975 F.2d 81, 95-96 (3d Cir. 1992)). How-
ever, in 2012, the Third Circuit purported to clarify
its approach, finding that the standard for ultimate
vitiation of the privilege is a reasonable basis to
suspect that the privilege holder was committing
or intending to commit a crime or fraud and that
attorney-client communications or attorney work
product were used in furtherance of the alleged crime
or fraud. In re Grand Jury, 705 F.3d at 153. This
standard departs from those of many of the other
circuits, and conflicts with Zolin.

353508, at *3 (6th Cir. Mar. 31, 2000) (table); Jacobs, 117 F.3d at
87, abrogated on other grounds by Loughrin v. United States,
___ S.Ct. ___, 2014 WL 2807180 (2014). Other courts require a
showing of reasonable cause or reasonable basis. See In re
Napster, Inc., 479 F.3d at 1094; In re Grand Jury Proceedings,
417 F.3d 18, 23 (1st Cir. 2005). Others contemplate burden
shifting. See Boender, 649 F.3d at 655-56; In re Grand Jury
Subpoena, 419 F.3d 329, 336 (5th Cir. 2005); In re Grand Jury
Proceedings # 5, 401 F.3d 247, 251 n.2 (4th Cir. 2005). Still
others require evidence if believed by the trier of fact or a
foundation in fact. See In re Sealed Case, 107 F.3d at 50;
United States v. Cleckler, 265 F. Appx 850, 853 (11th Cir. 2008);
In re Grand Jury Subpoenas, 144 F.3d 653, 660 (10th Cir. 1998).
23
The Third Circuits reasonable basis to suspect
standard is equivalent to the reasonable suspicion
standard applied in stop and frisk cases the lowest
standard of proof in federal court matters. This Court
has explained that reasonable suspicion is signifi-
cantly less demanding than probable cause because it
can be established with information that is different
in quantity or content than that required to establish
probable cause and with information that is less
reliable than that required to show probable cause.
Alabama v. White, 496 U.S. 325, 330 (1990). Given
this parallel, it is apparent that the Third Circuits
crime-fraud standard is significantly less demanding
than those adopted in other circuits.
8
In addition, the
Third Circuits standard is functionally indistinguish-
able from this Courts factual basis adequate to
support a good faith belief by a reasonable person
standard for in camera review of documents. Such a
standard is fundamentally at odds with the Courts
holding in Zolin that the ultimate crime-fraud stan-
dard must be higher than that for in camera review.
Zolin, 491 U.S. at 572.
With no obvious difference between the Third
Circuits crime-fraud standard and the in camera

8
Petitioners argued in the circuit court that the In re
Grand Jury ruling was not a clarification, but a new standard
requiring en banc review. Petitioners had contended in In re
Grand Jury that the standard should be a preponderance of the
evidence, relying on this Courts opinion in Bourjaily v. United
States, 483 U.S. 171 (1987).
24
standard set out in Zolin,
9
the result is that once the
standard for in camera review is met, the ultimate
crime-fraud standard will also be satisfied. The
differing standards of the circuit courts with respect
to crime-fraud require the Court to definitively set
out the quantum of proof required to vitiate the
attorney-client privilege.
10
The differing standards
mean that similarly situated parties will be treated
differently depending upon where they find them-
selves subject to litigation an untenable state of
affairs until this Court takes action.

9
The government maintains there is a difference. In its
opposition to a petition for writ of certiorari following the Third
Circuits decision in In re Grand Jury, the government took the
position that the Zolin standard is distinguishable from the
reasonable basis to suspect standard for the ultimate vitiation
of the privilege, because the Zolin standard merely requires that
in camera review be useful to the determination of the ulti-
mate crime-fraud issue. App. 46. Whether in camera review
would be useful cannot possibly be the standard, not only
because in camera review of the actual communications at issue
will always be useful to determining crime-fraud, but because
this Court recognized in Zolin that there must be some evidence
of wrongdoing to justify in camera review. Zolin, 491 U.S. at 571.

10
The issue of the ultimate crime-fraud standard frequently
arises before the lower courts and shows no signs of becoming
less important. One commentator has explained that the crime-
fraud exception has grown in importance because the federal
prosecutors appear to be invoking the exception [m]ore and
more often. The New Wigmore: Evidentiary Privileges 6.13.2d
(citations omitted).
25
II. THE COURT SHOULD DETERMINE THE
APPROPRIATE THRESHOLD STANDARD
TO BE APPLIED PRIOR TO THE IN
CAMERA EXAMINATION OF A WITNESS
FOR THE PURPOSE OF MAKING A
CRIME-FRAUD DETERMINATION
A. Zolin Does Not Apply With Respect To
In Camera Reviews Of Unrecorded
Communications
In its opinion, the Third Circuit held that the
standard for in camera review of materials document-
ing attorney-client communications, formulated by this
Court in Zolin, applied with respect to unrecorded
oral attorney-client communications. App. 14. This
decision conflicts with the principles set out in Zolin.
In Zolin, this Court determined that a party
invoking the crime-fraud exception must make a
threshold showing before a district court may review
documented attorney-client communications in cam-
era. 491 U.S. at 570-72. In settling upon the required
showing, the Court focused on the detrimental effect
of in camera review on the policies underlying the
privilege and on the orderly administration of
justice. In particular, the Court was concerned with
(1) the potential erosion of the privilege, (2) due
process implications, and (3) additional burdens on
the district courts. Zolin, 491 U.S. at 570-71.
In finding that the Zolin standard for in camera
review of documented communications applied to oral
communications, the panel purported to focus on
concerns with in camera examinations articulated in
26
Zolin. App. 11-13. The opinion, however, ignored the
principles set out, concluding that these concerns
were no weightier in cases involving witness exami-
nations than they are in cases involving documents.
With respect to the first concern, Zolin empha-
sized the significance of the attorney-client privilege,
noting that examination of the evidence, even by the
judge alone, in chambers might in some cases jeop-
ardize the security which the privilege is meant to
protect[,] and that [t]oo much judicial inquiry into
the claim of privilege would force disclosure of the
thing the privilege was meant to protect[.] Zolin, 491
U.S. at 570. Despite this concern, the panel con-
cluded, without analysis, that a district courts
examination of a witness does no more to erode the
protection than examination of written or recorded
communications. App. 12. The panels conclusion
ignores the fact that delving into unrecorded oral
communications is a much more intrusive invasion of
the privilege than the mere examination of docu-
ments. One cannot ask a document or other recorded
communication for information not contained therein,
as such materials have closed content. In interview-
ing an attorney, however, one can ask for information
in any number of ways, probing thoughts and impres-
sions, and even prompting the attorney to look at
communications from a different perspective.
11

11
This type of probing may have occurred here. Otherwise,
it is difficult to fathom the district courts view that Client
27
With respect to the second concern, Zolin held
that in camera proceedings necessarily implicate due
process because such proceedings deprive a party to a
proceeding of a full opportunity to be heard on an
issue. Zolin, 491 U.S. at 571 (citing In re John Doe
Corp., 675 F.2d 482, 489-90 (2d Cir. 1982)). The panel
dismissed this concern, stating that a district court
can properly be entrusted to consider due process and
fashion a proper procedure for an in camera examina-
tion, App. 12, again failing to consider the differences
between oral communications and documents.
In cases involving in camera examination of
documents, the documents are generally produced by

possessed a bad intent when no definitive advice was given
and Client stated that he did not believe he was violating the
law. Because of the potential for the district court to act as an
advocate for the government in undertaking an in camera
examination of an attorney-witness, see In re Grand Jury
Proceedings, 486 F.2d 85, 90 (3d Cir. 1973) (grand jury subpoe-
nas are almost universally instrumentalities of the United
States Attorneys office or of some other investigative or prosecu-
torial department of the executive branch.); Crime-Fraud
Ruling Forces Lawyer to Testify in Grand Jury Investigation of
Former Clients, BNA Snapshot, February 18, 2014 (recognizing
that the Third Circuits decision could damage the judges role as
neutral arbiter), Petitioners argued below that such an exami-
nation would violate the constitutional separation of powers.
Both the district court and the Third Circuit rejected even the
possibility of such a problem. Supp. App. 100; App. 10 n.2. But
this Court has recognized that although district courts oversee
grand juries, the relationship between a court and a grand jury
is one at arms length with the grand jury conducting its
investigations independently of the judiciary. United States v.
Williams, 504 U.S. 36, 47 (1992).
28
the party asserting the privilege, and that party can
make a complete argument with respect to the ap-
plicability of the crime-fraud exception. In the case of
oral communications, the due process implications of
in camera examinations are more significant if the
privilege proponent is excluded from the examination
(as occurred here) because no party has full infor-
mation as to what information is reported. The party
asserting the privilege simply has no way of knowing
what questions were asked, how they were asked,
what information was reported, and how the situa-
tion may have colored the witness recollections.
Moreover, questioning an attorney about past un-
recorded communications is subject to serious risks of
inaccuracy due to the limits of recollection and the
passage of time.
With respect to the third concern, Zolin recog-
nized that significant burdens would be placed upon
district courts in conducting in camera reviews of
documents. Zolin, 491 U.S. at 571. The Third Circuit
acknowledged that in camera examinations of wit-
nesses are more burdensome than examinations of
documents, but held that this did not require that
such an examination be undertaken only after a
higher showing. App. 12-13. To the contrary, Zolin in-
dicated that burden on the district courts is relevant
to the standard for a threshold showing prior to
in camera review.
The Third Circuits analysis significantly
expands the scope of the crime-fraud exception. The
Third Circuits speculation that clients would avoid
29
committing any attorney-client communications to
writing to obtain a higher in camera review standard
simply does not reflect the reality of a legal consulta-
tion; lawyers normally document their advice and,
indeed this Court has generated numerous cases on
attorney work product based on such writings. See,
e.g., Hickman v. Taylor, 329 U.S. 495, 508-11 (1947)
(recognizing work product protection for attorney
notes and memoranda). The reality of attorney-client
communications is that counsel will not hesitate to
create a record of a client consultation based upon a
concern that his or her notes, emails, or other writ-
ings would later be subject to grand jury subpoena.
The fact that no notes or other documents from the
Attorney were at issue here reflects only the limited
nature of Petitioners consultation. In short, the Third
Circuit failed to consider the reality of unrecorded
oral communications versus documented communica-
tions and how this difference impacts the standard to
be applied for in camera review, thereby ignoring the
teachings of Zolin.

B. The Circuit Courts Are Not In Agree-
ment As To The Procedures Applicable
To In Camera Attorney-Witness Inter-
views
While the issue of in camera examination of live
attorney-witnesses has arisen in a handful of cases,
no court has taken into account the vastly different
circumstances prior to applying the Zolin standard
for documented communications. See In re John Doe,
30
Inc., 13 F.3d 633, 635, 637 (2d Cir. 1994) (approving a
district courts conduct of an in camera interview of
an attorney-witness after the Zolin standard had
been met, but never considering the material differ-
ences between documented communications versus
live testimony); Boender, 649 F.3d at 656, 658 (finding
that the district court was justified under the Zolin
standard in holding, post-indictment, an in camera
adversarial hearing involving testimony from two
attorneys of the defendant to determine the applica-
tion of the crime-fraud exception).
Not only have the circuit courts ignored Zolin on
this issue, but they disagree with respect to whether
the client of the attorney to be interviewed in camera
may participate in the examination. Only the Second
Circuit (and now the Third Circuit) have affirmatively
approved of the procedure adopted by the district
court here, involving a pre-indictment in camera
examination of an attorney excluding the targets
counsel. See In re John Doe, Inc., 13 F.3d at 634-35,
636-37. Other circuit courts have sanctioned the
participation of counsel for the target in such an
examination. See In re Grand Jury Investigation, 445
F.3d at 269 (affirming district courts crime-fraud
finding, which was based in part on an in camera
examination of the grand jury targets former counsel,
which the targets attorney was permitted to attend);
Boender, 649 F.3d at 653, 656, 658 (approving a post-
indictment in camera examination of two attorneys of
the defendant to determine the applicability of the
crime-fraud exception when both the government and
31
the defense were permitted to take part in the exam-
ination).
12
The circuit conflict on this issue warrants
review by this Court.

III. THE COURT SHOULD DECIDE THE
PROCESS THAT IS DUE IN CASES
WHERE AN IN CAMERA EXAMINATION
OF AN ATTORNEY IS PERMITTED
According to the Third Circuit, [t]he District
Court did not abuse its discretion in excluding [Appel-
lants] from the interview [of Attorney] or declining to
release a transcript or summary of the testimony
because there appears to be a significant amount of
information before the grand jury that is not known
to [Appellants], and if Appellants were privy to the
in camera examination, they could preview not only
[Attorneys] grand jury testimony, but also evidence
already submitted to the grand jury, as reflected in
the Governments questions, and the Governments
eventual trial evidence and strategy, which is en-
titled to protection as a grand jury secret. App. 16-17.
The Third Circuits holding conflicts with the Courts

12
Other circuit courts have declined to review such proce-
dures. See In re Grand Jury Subpoena, 419 F.3d at 335-36 (no
review of in camera examination of an attorney because the
procedure was not challenged); In re Grand Jury Subpoena as to
C97-216, 187 F.3d 996, 997-98 (8th Cir. 1999) (declining to review
decision to conduct an in camera examination of the appellants
former attorney without the grand jury targets counsel present
when the appellant had not objected to the procedure).
32
interpretation of grand jury secrecy, and also conflicts
with the rulings of other circuit courts.
Federal Rule of Criminal Procedure 6(e) generally
provides that matters occurring before a grand jury
may not be disclosed, and are protected as secrets.
Prior to its ruling in this case, the Third Circuits
decisions were in line with those of other circuits,
holding that Rule 6(e) protects only what is said or
takes place in the grand jury room, but not infor-
mation existing separate and apart from those pro-
ceedings. See In re Grand Jury Matter, 697 F.2d 511,
513 (3d Cir. 1982) (documents do not automatically
become matters occurring before a grand jury when
they are subpoenaed by or transmitted to a grand
jury.); Appeal of Catania, 682 F.2d 61, 64 (3d Cir.
1982) (The disclosure of information obtained from a
source independent of the grand jury proceeding,
such as a prior government investigation, does not
violate Rule 6(e); disclosure of prior investigative
materials and draft indictment not governed by Rule
6(e)(2)); see also United States v. Eastern Air Lines,
Inc., 923 F.2d 241, 244 (2d Cir. 1991) (Rule 6(e) not
violated by disclosure of a search warrant affidavit,
even if that information might later be presented to
the grand jury, where it was obtained independently
from the grand jury and did not disclose matters
occurring before the grand jury); In re Grand Jury
Subpoena, 920 F.2d 235, 241-42 (4th Cir. 1990)
(Rule 6(e)(2) protects from disclosure only the
essence of what takes place in the grand jury room
and information produced by criminal investigations
33
paralleling grand jury investigations do not consti-
tute matters occurring before the grand jury); In re
Grand Jury Investigation, 610 F.2d 202, 217 (5th Cir.
1980) ([T]he disclosure of information obtained from
a source independent of the grand jury proceedings,
such as a prior government investigation, does not
violate Rule 6(e).); In re Special March 1981 Grand
Jury, 753 F.2d 575, 578 (7th Cir. 1985) (The principle
has therefore emerged that matters occurring before
the grand jury do not include every document of
which the grand jury happens to have custody.);
United States v. Dynavac, Inc., 6 F.3d 1407, 1413 (9th
Cir. 1993) (only information that reveal[s] some
secret aspect of the inner workings of the grand jury
is protected; business records previously submitted to
grand jury as part of criminal investigation, but
created for independent reasons not protected); Sen-
ate of Puerto Rico ex rel. Judiciary Comm. v. United
States DOJ, 823 F.2d 574, 584 (D.C. Cir. 1987) (reject-
ing the position that material that has been presented
to the grand jury makes it exempt from disclosure to
the target of an investigation).
With its decision in this case, the Third Circuit
has reversed its position: now holding, in conflict with
other circuit courts, that (1) information obtained in
camera from an attorney-witness, with his counsel
present, and not yet before the grand jury, is pro-
tected as a preview of grand jury testimony; and
(2) questions prepared by the government for purposes
of establishing the crime-fraud exception are protected
because they may reflect evidence submitted to the
34
grand jury, or the governments trial evidence and
strategy.
Three circuits have specifically held that inter-
views of witnesses that do not take place before the
grand jury are not protected by Rule 6(e). See, e.g.,
Davies v. Commr, 68 F.3d 1129, 1130 (9th Cir. 1995)
(Rule 6(e) simply does not apply to information
voluntarily provided by [attorney] because a witnesss
knowledge and information is not covered by the
rule.); Blalock v. United States, 844 F.2d 1546, 1551
(11th Cir. 1988) (finding no violation of Rule 6(e)
despite agents permitting third-parties to be present
during the questioning of potential grand jury
witnesses; The Rule does not protect from disclosure
information obtained from a source other than the
grand jury, even if the same information is later
presented to the grand jury.); Anaya v. United States,
815 F.2d 1373, 1380 (10th Cir. 1987) (There is a clear
distinction between a memorandum of the testimony
given by a witness before the grand jury and a memo-
randum of what that person told an investigator
outside the grand jury room.).
13

13
Indeed, several circuits have publicly reviewed questions
posed to witnesses before a grand jury to determine whether
they implicate the privilege without any concern that this might
reveal grand jury secrets. See, e.g., In re Grand Jury Subpoenas,
144 F.3d 653, 662 (10th Cir. 1998); In re Grand Jury Proceeding,
68 F.3d 193, 196 (7th Cir. 1995); In re Six Grand Jury Witnesses,
979 F.2d 939, 945-46 (2d Cir. 1992); Appeal of Hughes, 633 F.2d
282, 291-92 (3d Cir. 1980).
35
Information that has not yet been presented to
the grand jury, with very limited exceptions, is simply
not subject to protection. Compare United States v.
Phillips, 843 F.2d 438, 441 (11th Cir. 1988) (financial
documents obtained via grand jury subpoena but not
submitted to grand jury and not indicating pattern
of the grand jury investigation were not matters
occurring before grand jury); Blalock, 844 F.2d at
1551 (questioning of witness did not reveal grand jury
matters) with In re Grand Jury Investigation, 610
F.2d at 216-17 (grand jury secrecy provisions can ap-
ply to information that will be presented to the grand
jury in the future such as statements which reveal
the identity of persons who will be called to testify or
which report when the grand jury will return an
indictment. However, the disclosure of information
obtained from a source independent of the grand jury
proceedings, such as a prior government investiga-
tion, does not violate Rule 6(e).). To Petitioners
knowledge, no other circuit court has approved this
protection in circumstances, such as those in this
case, where there was no indication that the inner
workings of the grand jury would be revealed.
The Third Circuits determination that Petitioners
were properly excluded from the in camera examina-
tion of Attorney is not based upon any determination
that the questions asked of, or the answers provided
by, Attorney in camera in any way reflected grand
jury information unknown to Petitioners. Rather,
both the Third Circuit and district court merely
presumed that such information could somehow be
36
gleaned from the interview. This presumption was
made despite the district courts claim that Petition-
ers should have been aware of their communications
with Attorney, Supp. App. 78, and its recognition that
Petitioners counsel and the government submitted
substantially similar questions to be posed to Attor-
ney at the in camera interview. Id. Petitioners ques-
tions consisted of the what, where, and how of
the interaction between Attorney and Client. Supp.
App. 87-88. With the governments substantially
similar questions, no grand jury information could
possibly have been disclosed.
It is also important to note that counsel for
Attorney was permitted to attend the in camera
proceeding with Attorney. Counsel for Attorney could
not, of course, be present at the actual grand jury
proceeding. The presence of counsel for the Attorney,
who is under no grand jury secrecy obligations,
further supports the conclusion that there was no
grand jury secrecy issue in this case.
14

The Third Circuits decision thus creates a clear
circuit split with respect to the scope of grand jury
secrecy. The Third Circuits approval of Petitioners
exclusion from the in camera interview was also
inconsistent this Courts rationale for protecting

14
Rule 6(e)s secrecy provisions do not apply to witnesses or
their counsel. Fed. R. Crim. P. 6(e)(2). It is difficult to fathom
how grand jury secrecy was involved since the alleged review
had already been disclosed to a third-party that would not be
permitted to be present during grand jury proceedings.
37
grand jury secrecy. The Court has indicated that
grand jury secrecy must be protected to (1) prevent
the escape of those whose indictment may be contem-
plated; (2) insure the utmost freedom to the grand
jury in its deliberations; (3) prevent subornation of
perjury or tampering with witnesses who may testify
before the grand jury and later appear at the trial of
those indicted by it; (4) encourage free and untram-
meled disclosures by persons who have information
with respect to the commission of crimes; and (5)
protect an innocent accused who is exonerated from
disclosure of the fact that he has been under investi-
gation. United States v. John Doe, Inc. I, 481 U.S.
102, 110 n.5 (1987). None of these concerns are at
issue here.
Petitioners were well aware of the existence and
nature of the grand jury investigation prior to the in
camera examination of Attorney. Indeed, the govern-
ment acknowledged that grand jury secrecy concerns
were reduced in this case. See In re Grand Jury
Subpoena, No. 2010-0127, Docket Entry 19, at 18
(E.D. Pa.). The government further acknowledged the
lack of secrecy interest here, in that it did not object
to Petitioners attending and participating in the in
camera proceeding prior to the district courts deter-
mination that neither party should be present. Id. at
17-18.
The disclosure of the district courts examination
of Attorney would not permit Petitioners to access or
influence in any way, the grand jury. Any concern
that Petitioners would suborn perjury or otherwise
38
affect testimony before the grand jury would not be
heightened by Petitioners attendance at the examina-
tion of Attorney (or by the release of the transcript),
as Petitioners have known all along that the govern-
ment subpoenaed Attorney and the nature of the
inquiry. There is simply no reason to believe that
Petitioners presence at the in camera examination
would have affected the contents of Attorneys testi-
mony. Finally, protecting Petitioners from disclosure
of the fact that they have been under investigation
is not at issue when Petitioners themselves seek the
disclosure. Because this case implicates none of
the rationales for grand jury secrecy, such secrecy
provides no basis for excluding Petitioners from the
in camera examination of Attorney.
Given the significant disagreement with respect
to the scope of grand jury secrecy, see Anaya, 815 F.2d
at 1378 (the use of the term grand jury materials in
connection with Rule 6(e) disclosures has become
misleading and shibbolithic.),
15
the Court should
clarify the scope of this secrecy to ensure that grand
jury targets are afforded due process prior to the
vitiation of their privilege. Specifically, the Court
should hold that grand jury secrecy does not protect

15
See also In re Grand Jury Proceedings, 851 F.2d 860, 864-
66 (6th Cir. 1988) (noting four different approaches that circuit
courts take to address whether documents subpoenaed by a
grand jury are grand jury secrets); Dynavac, Inc., 6 F.3d at 1412-
13 (describing various approaches to the treatment of documents
viewed by the grand jury).
39
factual information existing separate and apart from
the grand jury proceedings that has not yet been
presented to the grand jury, including examinations
of potential grand jury witnesses.
--------------------------------- ---------------------------------

CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
IAN M. COMISKY*
MATTHEW D. LEE
BRIDGET E. MAYER
BLANK ROME LLP
One Logan Square
(215) 569-5646
STEPHEN ROBERT LACHEEN
LACHEEN, WITTELS &
GREENBERG, LLP
1429 Walnut Street, 13th Floor
(215) 735-5900
Attorneys for Petitioners
*Counsel of Record
App. 1
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
-----------------------------------------------------------------------
No. 13-1237
-----------------------------------------------------------------------
IN RE: GRAND JURY SUBPOENA
-----------------------------------------------------------------------
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-10-gj-00127-002)
District Judge: Honorable Gene E. K. Pratter
-----------------------------------------------------------------------
Argued September 25, 2013
Before: AMBRO, FISHER and HARDIMAN,
Circuit Judges.
(Filed: February 12, 2014)
Ian M. Comisky (ARGUED)
Matthew D. Lee
Blank Rome
130 North 18th Street
One Logan Square
Stephen R. LaCheen (ARGUED)
LaCheen Wittels & Greenberg
1429 Walnut Street, Suite 1301
Counsel for Appellant, John Doe
App. 2
Michelle Morgan (ARGUED)
Peter F. Schenck
Office of United States Attorney
615 Chestnut Street, Suite 1250
Counsel for Appellee, United States
-----------------------------------------------------------------------
OPINION OF THE COURT
-----------------------------------------------------------------------
FISHER, Circuit Judge.
Corporation and Client (together, Intervenors)
are targets of an ongoing grand jury investigation
into alleged violations of the Foreign Corrupt Practic-
es Act (FCPA). The grand jury served a subpoena on
Intervenors former attorney (Attorney) and the
Government moved to enforce this subpoena and
compel Attorneys testimony, based upon the crime-
fraud exception to the attorney-client privilege.
Intervenors sought to quash the subpoena by assert-
ing the attorney-client privilege and work product
protection. After questioning Attorney in camera, the
District Court found that the crime-fraud exception
applied and compelled Attorney to testify before the
grand jury.
Intervenors appeal, challenging the District
Courts decision to conduct an in camera examination,
the procedures it fashioned for the examination, and
the courts ultimate finding that the crime-fraud
exception applies. We hold that the standard an-
nounced in United States v. Zolin, 491 U.S. 554, 572
App. 3
(1989), applies to determine whether to conduct an in
camera examination of a witness. We also find that
the District Court did not abuse its discretion in
applying this standard, in determining procedures for
the examination, or in ultimately finding that the
crime-fraud exception applies. We therefore affirm
the District Courts order enforcing the grand jury
subpoena.

I.
A.
This matter is before us in the context of an
ongoing grand jury investigation. To maintain confi-
dentiality, we will refer only to the facts that have
been made public and will refer to those involved as
Corporation, Client, and Attorney in order to
maintain their anonymity. We also note that we and
the District Court had access to information pertain-
ing to the alleged criminal violations via the Govern-
ments Ex Parte Affidavit, which set forth the basis
for the Governments belief that the Intervenors
committed FCPA violations. Intervenors were not
apprised of this information. Additionally, we were
informed by Attorneys account of the communica-
tions at issue, which were divulged to the District
Court during the in camera examination. Neither the
Government nor the Intervenors were privy to this
account. As such, we are hampered in our ability to
articulate the background information underlying our
conclusions.
App. 4
Intervenors are the targets of an ongoing grand
jury investigation in the Eastern District of Pennsyl-
vania seeking to determine whether they made
corrupt payments to obtain business in violation of
the FCPA. Corporation is a consulting firm headquar-
tered in Pennsylvania and Client is Corporations
President and Managing Director. The grand jury
investigation stems from Intervenors business trans-
actions with a financial institution (the Bank)
headquartered in the United Kingdom and owned by
a number of foreign countries. Between 2007 and
2009, Corporation was retained as a financial advisor
by five companies to provide assistance in obtaining
financing from the Bank for oil and gas projects. Two
of the five projects were approved and financed by the
Bank, resulting in the payment of nearly $8 million
in success fees to Corporation. For all five projects,
Banker, an official and banker at the Bank, was the
operation leader responsible for overseeing the fi-
nancing process. In 2008 and 2009, Corporation made
payments totaling more than $3.5 million to Bankers
sister. The payments occurred within months of the
success-fee payments to Corporation. No evidence
showed that Bankers sister worked on or was in-
volved in any of the projects or meaningfully contrib-
uted to any of Corporations other ventures.
Attorney worked out of Corporations office but
practiced law independently. In exchange for permit-
ting Attorney to work out of the office rent-free, Client
would periodically consult Attorney on ordinary legal
matters. Attorney had several brief interactions with
App. 5
Client regarding one of the successful financing
projects. In April 2008, Client approached Attorney to
discuss issues he was having with the project. Client
explained that he planned on paying Banker in order
to ensure that the project progressed swiftly, as
Banker was threatening to slow down the approval
process. Attorney did some preliminary research,
found the FCPA, and asked Client whether the Bank
was a government entity and whether Banker was a
government official. Although Attorney could not
ascertain given his limited research whether the
planned action was legal or illegal, he advised Client
not to make the payment. Despite this advice, Client
insisted that his proposed payment did not violate the
FCPA, and informed Attorney that he would go ahead
with the payment. Attorney gave Client a copy of the
FCPA. After this communication, Attorney and Client
ended their relationship.
1

In February of 2010, the Bank began an internal
investigation into the transactions between Inter-
venors and Bankers sister. The Overseas Anti-
Corruption Unit (the Unit) in the United Kingdom
was informed of the situation, and the Unit informed
the Federal Bureau of Investigation (FBI). The Unit
arrested Banker and Bankers sister in the United

1
We recognize that even this vague recitation of the
communications between Attorney and Client would ordinarily
be covered by the attorney-client privilege. We reveal this
account of the communications only because we have found that
the crime-fraud exception applies.
App. 6
Kingdom; their prosecution is ongoing. The FBI
began its investigation into Intervenors in February
2010. Due to the parallel prosecution of Banker and
Bankers sister in the United Kingdom, Intervenors
have some knowledge of the nature of the grand jury
investigation of which they are subjects.

B.
The grand jury served Attorney with a subpoena.
On June 18, 2012, the Government moved to enforce
the subpoena, seeking an order directing Attorney to
appear and testify before the grand jury. On Septem-
ber 4, 2012, Corporation and Client moved to inter-
vene, and the District Court granted this request.
After briefing, the District Court determined that it
would conduct an in camera examination of Attorney
outside the presence of Intervenors and the Govern-
ment to determine the applicability of the crime-fraud
exception to the communications between Attorney
and Client. The District Court invited Intervenors
and the Government to submit questions for the
District Court to ask Attorney, which both did.
On January 8, 2013, the District Court ques-
tioned Attorney in camera, with only Attorneys own
counsel present. After this examination, Intervenors
requested that the District Court release a transcript
of Attorneys testimony so that they could argue that
the communications were not subject to the crime-
fraud exception. On January 18, 2012, the District
Court issued a memorandum and order granting the
App. 7
Governments motion to enforce the subpoena and
directing Attorney to testify before the grand jury.
Based upon its review of the Governments Ex Parte
Affidavit and Attorneys in camera testimony, the
District Court found a reasonable basis to suspect
that Intervenors intended to commit a crime when
Client consulted Attorney and could have used the
information gleaned from the consultation in further-
ance of the crime. The District Court also declined to
release a transcript of the testimony. Intervenors
timely appealed and the District Court granted a stay
of its order compelling Attorneys grand jury testimo-
ny pending resolution of this appeal.

II.
The District Court had jurisdiction under 18
U.S.C. 3231. Ordinarily, this Court has jurisdiction
only over final decisions of district courts. 28 U.S.C.
1291. When a district court orders a witness to
testify or produce documents, the order is generally
not immediately appealable; rather, the witness who
wishes to object must refuse compliance, be held in
contempt, and then appeal the contempt order. In re
Grand Jury, 705 F.3d 133, 143 (3d Cir. 2012) (internal
quotation marks and citation omitted). However,
under Perlman v. United States, 247 U.S. 7 (1918), a
privilege holder may immediately appeal an adverse
disclosure order when the privileged information is
controlled by a disinterested third party who is likely
to disclose that information rather than be held in
contempt for the sake of an immediate appeal. In re
App. 8
Grand Jury, 705 F.3d at 138. Attorney is a disinter-
ested third party controlling allegedly privileged
information. As such, this Court has jurisdiction to
hear the appeal brought by Intervenors, the privilege
holders.
We exercise de novo review over the legal issues
underlying the application of the crime-fraud excep-
tion to the attorney-client privilege. In re Impound-
ed, 241 F.3d 308, 312 (3d Cir. 2001). Once the court
determines there is sufficient evidence of a crime or
fraud to waive the attorney-client privilege, we re-
view its judgment for abuse of discretion. Id. at 318.
We review procedures used by the district court for
abuse of discretion. See In re Grand Jury Subpoena,
223 F.3d 213, 219 (3d Cir. 2000) (We conclude that
the District Court did not abuse its discretion in
denying Appellant and/or his attorney access to this
information to protect grand jury secrecy.).

III.
Central to the issues in this case is the attorney-
client privilege, the oldest of the privileges for confi-
dential communications known to the common law.
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
The privilege protects from disclosure confidential
communications made between attorneys and clients
for the purpose of obtaining or providing legal assis-
tance to the client. In re Grand Jury, 705 F.3d at
151. Although the communications are often relevant
and highly probative of the truth, they are protected
App. 9
in order to encourage full and frank communication
between attorneys and their clients and thereby
promote broader public interests in the observance of
law and administration of justice. Upjohn Co., 449
U.S. at 389.
Despite their importance, the protections afford-
ed by the privilege are not absolute. [T]he reason for
that protection . . . ceases to operate at a certain
point, namely, where the desired advice refers not to
prior wrongdoing, but to future wrongdoing. Zolin,
491 U.S. at 562-63 (internal quotation marks, altera-
tions, and citations omitted). To circumvent [the
attorney-client] privilege[ ] under the crime-fraud
exception, the party seeking to overcome the privilege
. . . must make a prima facie showing that (1) the
client was committing or intending to commit a fraud
or crime, and (2) the attorney-client communications
were in furtherance of that alleged crime or fraud. In
re Grand Jury, 705 F.3d at 151 (quoting In re Grand
Jury Subpoena, 223 F.3d at 217) (internal quotation
marks omitted). Because it is often difficult or impos-
sible to prove that the exception applies without
delving into the communications themselves, the
Supreme Court has held that courts may use in
camera review to establish the applicability of the
exception. Zolin, 491 U.S. at 568-69. We explore the
contours of in camera review and the ultimate crime-
fraud finding in this appeal.

App. 10
A.
Intervenors raise issues with: the standard that
the District Court applied to determine whether to
conduct an in camera examination, its decision to
hold an examination in this case, and the procedures
that it used in that examination.
2
We hold that the
District Court applied the proper standard and did
not abuse its discretion in finding that the standard
applied or in fashioning procedures for the examina-
tion.

1.
In Zolin, the Supreme Court announced the
inquiry that should precede an in camera review of
documents to determine the applicability of the
crime-fraud exception. 491 U.S. at 572. The Court
stated that a district court should require a showing
of a factual basis adequate to support a good faith

2
Intervenors also argue that the District Courts examina-
tion of the Attorney violated the separation of powers doctrine.
This claim plainly misunderstands the roles of the grand jury in
investigating independently from any branch of government and
of the district court in ensuring that the grand jury does not
infringe upon common law privileges. The grand jury belongs to
no branch of the government, instead serving as a kind of
buffer or referee between the Government and the people. In re
Impounded, 241 F.3d at 312 (quoting United States v. Williams,
504 U.S. 36, 47 (1992)) (internal quotation marks omitted). The
District Court was fulfilling its obligation to check the grand
jurys investigative power by reviewing the grand jury subpoena
in order to protect the attorney-client privilege. See id. at 313.
App. 11
belief by a reasonable person that in camera review of
the materials may reveal evidence to establish the
claim that the crime-fraud exception applies. Id.
(internal quotation marks and citation omitted). In
Zolin, the government sought to compel the produc-
tion of tapes of communications and documents
covered by the attorney-client privilege under the
exception. Id. at 557. Intervenors assert that due to
key differences between documented materials and
the oral examination of an attorney, the latter should
be subject to a more stringent standard than that
announced for the former in Zolin.
In determining the standard that should apply to
in camera examination of a witness about oral com-
munications, we first note that the Supreme Court
did not exclude oral communications from the ambit
of its holding. Id. at 574. Nevertheless, in camera
examination of a witness implicates different con-
cerns than examination of documents or recordings,
so we must determine whether we should adopt the
Zolin standard where unmemorialized oral communi-
cations are at issue.
In determining whether there ought to be a
threshold showing for in camera review, the Supreme
Court articulated three concerns with the use of in
camera examinations: erosion of the privilege that is
aimed at fostering disclosure between attorney and
client, due process implications, and additional
burdens on the district courts. Id. at 571. Intervenors
present an additional concern the malleability of
witness recollections. We will weigh these concerns
App. 12
against the need to prove the applicability of the
crime-fraud exception.
While the policy of protecting open and legiti-
mate disclosure between attorneys and clients is of
the utmost importance, id. at 571, a district courts
examination of a witness does no more to erode the
protection than examination of written or recorded
communications. Applying the same standard in both
situations allows for equal accountability when the
communications, whether at the behest of the client
or not, were never chronicled. If we were to apply a
heightened standard to oral communications, would-
be criminals could use the differing standards to
avoid the proper application of the crime-fraud excep-
tion. A client could seek to take advantage of the
higher showing necessary to delve into oral communi-
cations by instructing the attorney not to record the
communications in any way. We do not want to incen-
tivize circumventing the proper application of the
crime-fraud exception. As for the due process implica-
tions, we believe that a district court can properly be
entrusted to consider the due process interests and
circumstances in each case, and use its discretion to
fashion a proper procedure for the in camera exami-
nation. With respect to the third concern, an in cam-
era examination of a witness is more burdensome on
the district court than examination of documents. The
district court must fashion procedures for the exami-
nation, bring the witness into court, and conduct the
hearing. However, the concern that the examination
may be more burdensome does not indicate to us that
App. 13
such an examination should only be undertaken on a
higher showing. This would serve to insulate some
oral communications from the crime-fraud exception
an intolerably high cost. Id. at 569.
Intervenors concern about the pliability of a
witnesss memory is a substantial one. An attorneys
memory about the interaction with the client could be
influenced by the mere fact that the crime-fraud
exception is implicated, and the circumstances of how
a question is asked can affect how the information is
remembered and reported. There are also dangers of
inaccuracy and untrustworthiness in probing into
the memory of an attorney regarding past communi-
cations that do not occur with documented communi-
cations. Hickman v. Taylor, 329 U.S. 495, 512-13
(1947) (Under ordinary conditions, forcing an attor-
ney to repeat or write out all that witnesses have told
him and to deliver the account to his adversary gives
rise to grave dangers of inaccuracy and untrustwor-
thiness.). Despite these concerns, we are confident
that district courts will be able to question an attor-
ney-witness in a way that ensures that the attorney
accurately recounts the communications with the
client. The risk of inaccuracies is mitigated by the
fact that the attorney will be under oath and face
questioning from a judge rather than an adversary.
The concern over the malleability of witness memory
does not outweigh the importance of ensuring that
abuses of the privilege are exposed. Some abuses of
the privilege cannot be demonstrated by extrinsic
evidence, so forbidding consideration of the communi-
cations would be too great an impediment to the
App. 14
proper functioning of the adversary process. Zolin,
491 U.S. at 569.
For these reasons, we hold that district courts
should use the Zolin standard to determine whether
to examine a witness in camera. Before a district
court can undertake an in camera examination of an
attorney-witness to determine the applicability of the
crime-fraud exception, the party seeking to overcome
the privilege must make a showing of a factual basis
adequate to support a good faith belief by a reasona-
ble person that in camera review of the materials
may reveal evidence to establish the claim that the
crime-fraud exception applies. Id. at 572 (internal
quotation marks and citation omitted).
This conclusion is not inconsistent with previous
decisions of this Court. See In re Grand Jury Investi-
gation, 445 F.3d 266, 280 (3d Cir. 2006) (affirming the
district courts finding that the crime-fraud exception
applied where the district court had examined attor-
neys in camera); In re Grand Jury Subpoena, 223
F.3d at 216 (observing that use of in camera proceed-
ings or ex parte affidavits is a procedure consistently
endorsed to preserve grand jury secrecy). Nor is it
inconsistent with decisions from other courts of
appeals. See, e.g., In re John Doe, Inc., 13 F.3d 633,
637 (2d Cir. 1994) (finding that a district courts in
camera examination of an attorney after the thresh-
old Zolin showing was made comported with due
process).
App. 15
The District Court properly applied the Zolin
standard and the Governments Ex Parte Affidavit
sufficiently fulfilled this standard. The Ex Parte
Affidavit contained details from the FBI investigation
into the projects involving the Bank for which Corpo-
ration served as an advisor. The Affidavit also con-
tained Attorneys statement to the FBI that Attorney
was consulted about a financing project, although
Attorney did not reveal the details of this communi-
cation. For these reasons, the District Court did not
err in concluding that there was a factual basis to
support a good faith belief that in camera examina-
tion of Attorney might reveal evidence establishing
the applicability of the crime-fraud exception and in
conducting an in camera examination of Attorney.

2.
Intervenors contest the District Courts decision
to exclude them from the in camera examination of
Attorney and its refusal to release a transcript or
summary of the examination. In considering
Intervenors request to attend the in camera exami-
nation, the District Court concluded that the balance
between the need for grand jury secrecy and protec-
tion of the attorney-client privilege could only be met
if neither Intervenors nor the Government were
present during the examination of Attorney. The
District Court denied Intervenors request for a
transcript, redacted transcript, or summary of the
examination testimony for similar reasons. The
District Court explained, [b]ecause the grand jury
App. 16
proceeding here is ongoing and because the transcript
almost certainly reflects a preview of [Attorneys]
eventual grand jury testimony, . . . secrecy concerns
outweigh any need for Intervenors to review the
transcript of [Attorneys] in camera interview.
Intervenors argue that what transpired in cam-
era is not a grand jury secret, because Attorneys
recollections exist separate and apart from the grand
jury investigation. The Government responds that
Intervenors are not precluded from interviewing
Attorney about his conversation with Client, if Attor-
ney is willing. In this way, Attorneys recollections are
not grand jury secrets.
The Government argues, on the other hand, that
the questions posed by the District Court, some of
which were submitted by the Government, do consti-
tute grand jury secrets. The Government maintains
that the Intervenors should be prevented from uncov-
ering what the Government wished to ask Attorney.
Intervenors respond that they already know what the
grand jury is investigating due to the parallel prose-
cution in the United Kingdom.
The District Court did not abuse its discretion in
excluding the Intervenors from the interview or
declining to release a transcript or summary of the
testimony. The District Court noted that even though
secrecy concerns are minimized by the parallel case
in the United Kingdom, there appears to be a signifi-
cant amount of information before the grand jury that
is not known to the Intervenors. The District Court
App. 17
did not err in so concluding. Intervenors are not
aware of how much the Government knows. But if
they were privy to the in camera examination, they
could preview not only Attorneys grand jury testimo-
ny, but also evidence already submitted to the grand
jury, as reflected in the Governments questions, and
the Governments eventual trial evidence and strate-
gy. Even though some information regarding the
investigation is public, the content of this interview is
entitled to protection as a grand jury secret. See In re
Grand Jury Subpoena, 233 F.3d at 219 (Given the
acknowledged need for secrecy in grand jury proceed-
ings, we reject Appellants argument that the unique
facts and circumstances in this case, including . . .
the fact that the nature of the investigation has
already been made public in several contexts, re-
quired the District Court to order disclosure of the
governments ex parte affidavit.). We therefore con-
clude that the District Court did not abuse its discre-
tion in adopting these procedures for the in camera
proceeding.

B.
Intervenors challenge the District Courts deter-
mination that the crime-fraud exception applies to
their communications with Attorney. In this circuit,
the crime-fraud exception to the attorney-client
privilege applies [w]here there is a reasonable basis
to suspect that the privilege holder was committing
or intending to commit a crime or fraud and that the
attorney-client communications or attorney work
App. 18
product were used in furtherance of the alleged crime
or fraud. . . . In re Grand Jury, 705 F.3d at 153.
3

We review the District Courts determination
that there is sufficient evidence for the crime-fraud
exception to apply for an abuse of discretion. In re

3
Intervenors argue on appeal that the District Court erred
in applying this standard for the crime-fraud exception. They
maintain that the panel in In re Grand Jury improperly over-
ruled prior precedent to create this standard. In In re Grand
Jury Subpoena, we held that to invoke the exception, the
government must make a prima facie showing that (1) the client
was committing or intending to commit a fraud or crime, and (2)
the attorney-client communications were in furtherance of that
alleged crime or fraud. 223 F.3d at 217 (internal citations
omitted). We then clarified that [a] prima facie showing
requires presentation of evidence which, if believed by the fact-
finder, would be sufficient to support a finding that the elements
of the crime-fraud exception were met. Id. (quoting Haines v.
Liggett Grp., Inc., 975 F.2d 81, 95-96 (3d Cir. 1992)).
The In re Grand Jury panel observed that sufficient to
support was not particularly helpful, as it begs the quantum-
of-proof question because it does not quantify what evidence is
sufficient. 705 F.3d at 152. The Court sought to clarify the
standard, and examined Third Circuit precedent to conclude
that our precedent is properly captured by the reasonable basis
standard. Id. at 153.
The In re Grand Jury panel followed what was binding,
see IOP 9.1; sufficient to support was not a holding, but part of
a standard that we clarified. The panel further clarified that for
a presentation of evidence to be sufficient, there must be a
reasonable basis to suspect that the elements of the crime-
fraud exception are fulfilled. The In re Grand Jury Court did not
improperly overrule the holding from a prior opinion; rather, it
clarified an applicable precedent to delineate a more specific
standard. Therefore, we adhere to the reasonable basis to
suspect standard.
App. 19
Impounded, 241 F.3d at 318. We begin by acknowl-
edging that this was a close case. The communication
between Attorney and Client was brief, and consisted
mainly of informing Client of the applicable law and
advising that he not make the payment. However, we
believe that the questions posed by Attorney to Client
and the information that Client could gain from those
questions are sufficient for us to conclude that the
District Court did not abuse its discretion in deter-
mining that the advice was used in furtherance of a
crime or fraud.
For the crime-fraud exception to apply, the client
must be committing or intending to commit a crime
or fraud at the time he or she consults the attorney.
In re Grand Jury, 705 F.3d at 153. This requirement
is stated in the present tense, and does not by its
terms apply to a situation where a client consults an
attorney about a possible course of action and later
forms the intent to undertake that action. We have
also observed that the attorney-client privilege is not
lost if the client innocently proposes an illegal course
of conduct to explore with his counsel what he may or
may not do. United States v. Doe, 429 F.3d 450, 454
(3d Cir. 2005). The exception does not apply where
the client forms the intent to engage in criminal or
fraudulent activity after the consultation.
Other courts of appeals have specifically clarified
when the client must have developed the requisite
intent. The Second Circuit explained that because the
exception only applies where the communications
were intended in some way to facilitate or to conceal
App. 20
the criminal activity, United States v. Jacobs, 117
F.3d 82, 88 (2d Cir. 1997) (quoting In re Grand Jury
Subpoenas Duces Tecum, 798 F.2d 32, 34 (2d Cir.
1986)) (internal quotation marks omitted), it is re-
quired to show that the wrong-doer had set upon a
criminal course before consulting counsel. Id. (em-
phasis in original). See also In re Grand Jury Sub-
poenas, 144 F.3d 653, 660 (10th Cir. 1998) (The
evidence must show that the client was engaged in or
was planning the criminal or fraudulent conduct
when it sought the assistance of counsel. . . .); In re
Grand Jury Proceedings, 87 F.3d 377, 381 (9th Cir.
1996) (To trigger the crime-fraud exception, the
government must establish that the client was
engaged in or planning a criminal or fraudulent
scheme when it sought the advice of counsel to fur-
ther the scheme. (quoting In re Sealed Case, 754
F.2d 395, 399 (D.C. Cir. 1985)).
A hypothetical question posed by Judge Ambro at
oral argument highlights the importance of the
timing of intent. A client consults with an attorney,
intending at the time to go as close to the line of
illegality as possible but to remain within the realm
of legal conduct. The client tells the attorney of a
possible course of conduct and asks for advice on the
applicable law. The attorney gives advice, explaining
which actions would be legal and which actions would
be illegal. A year later, the client decides that he or
she will cross the line from legal to illegal. Here, the
crime-fraud exception would not apply, because the
client was not committing a crime or fraud or intending
App. 21
to commit a crime or fraud at the time he or she
consulted the attorney. Even if the client clearly used
the advice obtained a year earlier in furtherance of
the crime or fraud, the exception would not apply
because the client did not have the requisite intent at
the time of the consultation.
In this case, the District Court did not abuse its
discretion in determining that Client intended to
commit a crime at the time he consulted with Attor-
ney in April 2008. The evidence shows Clients intent
to make a payment to Banker in order to ensure that
the project was approved in a timely manner. We can
infer Clients pre-existing intent to make the payment
in part from his statement to Attorney that he was
going to make the payment anyway, after Attorney
advised him that he should not do so. This suggests
that Client had already considered the advisability of
making the payment, and determined that it was in
his best interest to do so. The fact that the payment
occurred in the same month that the Bank approved
the project financing also indicates that Client
planned on making the payment when he consulted
with Attorney. Given the information available to the
District Court, we cannot say that it abused its
discretion in concluding that Client set upon an
illegal course before seeking [Attorneys] advice about
the schemes legality. Jacobs, 117 F.3d at 89.
In delineating the connection required between
the advice sought and the crime or fraud, we have
repeatedly stated that the legal advice must be used
in furtherance of the alleged crime or fraud. We
App. 22
have rejected a more relaxed related to standard, In
re Grand Jury Investigation, 445 F.3d at 277, and
explained that the legal advice must give[ ] direction
for the commission of future fraud or crime, In re
Grand Jury Subpoena, 223 F.3d at 217 (quoting
Haines, 975 F.2d at 90). Most recently, in In re Grand
Jury, we observed, [a]ll that is necessary is that the
client misuse or intend to misuse the attorneys
advice in furtherance of an improper purpose. 705
F.3d at 157. It is therefore clear from prior precedent
that for advice to be used in furtherance of a crime
or fraud, the advice must advance, or the client must
intend the advice to advance, the clients criminal or
fraudulent purpose. The advice cannot merely relate
to the crime or fraud.
If the attorney merely informs the client of the
criminality of a proposed action, the crime-fraud
exception does not apply. For example, consider the
situation where a client, intending to undertake an
illegal course of action, consults a first attorney, tells
the attorney the proposed course of action, and the
attorney advises that the course of action is illegal.
The client, dissatisfied with the first attorneys an-
swer, then consults a second attorney. The client tells
the attorney the same proposed course of action, but
this attorney says yes, that course of action is legal.
Both of these consultations would remain privileged,
because the attorneys merely opined on the lawful-
ness of a particular course of conduct, and this advice
cannot be used in furtherance of the crime.
App. 23
The situation here is different. In addition to the
advice Attorney provided to Client that he should not
make a payment, Attorney also provided information
about the types of conduct that violate the law. We
cannot say that the District Court abused its discre-
tion in determining that there is a reasonable basis
to conclude that [Attorneys] advice was used by
[Intervenors] to fashion conduct in furtherance of
[their] crime. Specifically, Attorneys questions about
whether or not the Bank was a governmental entity
and whether Banker was a government official would
have informed Client that the governmental connec-
tion was key to violating the FCPA. This would lead
logically to the idea of routing the payment through
Bankers sister, who was not connected to the Bank,
in order to avoid the reaches of the FCPA or detection
of the violation. Of course, it is impossible to know
what Client thought or how he processed the infor-
mation gained from Attorney. But the District Court
did not abuse its discretion in determining that
Client could easily have used [the advice] to shape
the contours of conduct intended to escape the reach-
es of the law. For these reason, we affirm the District
Courts finding that the crime-fraud exception applies
and its order compelling Attorney to testify before the
grand jury.

C.
Intervenors assert that Attorneys testimony is
protected by the work product doctrine. The District
Court did not address this issue; however, it was fully
App. 24
briefed before the District Court. The work-product
doctrine . . . protects from discovery materials pre-
pared or collected by an attorney in the course of
preparation for possible litigation. In re Grand Jury
Investigation, 599 F.2d 1224, 1228 (3d Cir. 1979)
(quoting Hickman, 329 U.S. at 505). The burden of
proving the applicability of the work product privilege
rests upon the party asserting the privilege. Haines,
975 F.2d at 94. A lawyer may assert the work prod-
uct privilege, and [t]o the extent a clients interest
may be affected, he, too, may assert the work product
privilege. In re Grand Jury Proceedings, 604 F.2d
798, 801 (3d Cir. 1979). Intervenors have attempted
to assert the work product privilege on their own
behalf and on Attorneys behalf, arguing that an
innocent attorney can prevent disclosure of work
product even if the client used it to further a crime or
fraud. Attorney did not raise the work product issue
before the District Court and Intervenors cannot
assert the privilege on his behalf. Therefore, we need
not address whether an innocent attorney may raise
the privilege when there is a crime-fraud finding.
A crime-fraud finding overcomes the work prod-
uct privilege. Where there is a reasonable basis to
suspect that the privilege holder was committing or
intending to commit a crime or fraud and that the . . .
attorney work product w[as] used in furtherance of
the alleged crime or fraud, this is enough to break the
privilege. In re Grand Jury, 705 F.3d at 153. Be-
cause, as discussed supra, we affirm the District
Courts crime-fraud finding, the work product privilege
App. 25
does not apply. Nevertheless, even without the crime-
fraud finding, the communications between Inter-
venors and Attorney do not qualify as protected work
product because they were not made in the course of
preparation for possible litigation. In re Grand Jury
Investigation, 599 F.2d at 1228 (quoting Hickman,
329 U.S. at 505). Work product prepared in the
course of business is not immune from discovery.
Holmes v. Pension Plan of Bethlehem Steel Corp., 213
F.3d 124, 138 (3d Cir. 2000). Although the legal
theories, research, and fact material gathered here
could be considered intangible work product, In re
Grand Jury Proceedings, 604 F.2d at 801, Attorneys
recollections and research are not protected because
they were not made in preparation for possible litiga-
tion. When Intervenors consulted Attorney in April
2008, there was no litigation on the horizon. Investi-
gation into the transactions that led to the grand jury
investigation began nearly two years later. The
consultation was made in the ordinary course of a
business transaction; therefore, Attorneys recollec-
tions are not protected work product.

IV.
For the foregoing reasons, we affirm the order of
the District Court enforcing the grand jury subpoena.

Other Relevant Material

App. 26

No. 12-1239
In the Supreme Court of the United States
-----------------------------------
JOHN DOE 1, JOHN DOE 2, AND ABC CORPORATION,
PETITIONERS
v.
UNITED STATES OF AMERICA
-----------------------------------
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
-----------------------------------
BRIEF FOR THE UNITED STATES
IN OPPOSITION
-----------------------------------
DONALD B. VERRILLI, JR.
Solicitor General
Counsel of Record
KATHRYN KENEALLY
Assistant Attorney General
FRANK P. CIHLAR
GREGORY VICTOR DAVIS
ALEXANDER P. ROBBINS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

App. 27

[I] QUESTIONS PRESENTED
1. Whether petitioner ABC Corporations attorney-
client privilege was vitiated in grand-jury proceedings
where the district court found a reasonable basis to
suspect that petitioner had used the privilege to
commit a crime or fraud.
2. Whether the court of appeals had jurisdiction
over petitioner ABC Corporations interlocutory appeal
of the district courts order requiring petitioner and
two law firms to produce documents in response to a
grand-jury subpoena, where petitioner, to whom the
documents could be transferred, did not first refuse to
comply with the order and go into contempt of court.

[III] TABLE OF CONTENTS
Page
Opinions below..................................................... 1
Jurisdiction .......................................................... 1
Statement ............................................................ 1
Argument ............................................................. 9
Conclusion............................................................ 19

TABLE OF AUTHORITIES
Cases:
Alexander v. United States, 201 U.S. 117 (1906) ....... 16
Antitrust Grand Jury, In re, 805 F.2d 155 (6th
Cir. 1986) ........................................................... 11, 13
App. 28

Bourjaily v. United States, 483 U.S. 171 (1987) ........ 12
Church of Scientology v. United States, 506
U.S. 9 (1992) ........................................................ 5, 16
Clark v. United States, 289 U.S. 1 (1933) .............. 7, 10
Cobbledick v. United States, 309 U.S. 323
(1940) ................................................................. 16, 19
Di Bella v. United States, 369 U.S. 121 (1962) .......... 19
Grand Jury Proceedings, In re, 87 F.3d 377 (9th
Cir.), cert. denied, 519 U.S. 945 (1996) .................. 11
Grand Jury Proceedings, In re, 417 F.3d 18
(1st Cir. 2005), cert. denied, 546 U.S. 1088
(2006) ................................................................. 10, 11
Grand Jury Proceedings, In re, 609 F.3d 909
(8th Cir. 2010) ......................................................... 13
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100
(2009) ................................................................... 6, 18
Perlman v. United States, 247 U.S. 7 (1918) ..... 5, 9, 16
Sealed Case, In re, 676 F.2d 793 (D.C. Cir.
1982) ........................................................................ 10
Sealed Case, In re, 754 F.2d 395 (D.C. Cir.
1985) .................................................................. 11, 13
Sealed Case, In re, 107 F.3d 46 (D.C. Cir. 1997) ........ 13
United States v. Calvert, 523 F.2d 895 (8th Cir.
1975), cert. denied, 424 U.S. 911 (1976) ................. 10
[IV] United States v. Clem, 210 F.3d 373 (6th
Cir. 2000), cert. denied, 531 U.S. 1154 (2001) ........ 13
United States v. Dionisio, 410 U.S. 1 (1973) .............. 12
App. 29

United States v. Jacobs, 117 F.3d 82 (2d Cir.
1997) .................................................................. 11, 13
United States v. Johnston, 268 U.S. 220 (1925) ........ 12
United States v. Ryan, 402 U.S. 530 (1971) ......... 16, 19
United States v. Zolin, 491 U.S. 554 (1989) ......... 10, 15

Statutes and rules:
28 U.S.C. 1291 ............................................................ 16
Fed. R. Evid. 104(a) .................................................... 12

[1] In the Supreme Court of the United States
-----------------------------------
No. 12-1239
JOHN DOE 1, JOHN DOE 2, AND ABC CORPORATION,
PETITIONERS
v.
UNITED STATES OF AMERICA
-----------------------------------
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
-----------------------------------
BRIEF FOR THE UNITED STATES
IN OPPOSITION
-----------------------------------

App. 30

OPINIONS BELOW
The opinion of the court of appeals (Pet. App.
1-76) is reported at 705 F.3d 133. The relevant orders
of the district court are unreported and sealed.

JURISDICTION
The judgment of the court of appeals was entered
on December 11, 2012. A petition for rehearing was
denied on January 17, 2013 (Pet. App. 77-78). The
petition for a writ of certiorari was filed on April 11,
2013. The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).

STATEMENT
Petitioner ABC Corporation (petitioner), a now-
dissolved corporation, invoked the attorney-client
privilege to withhold documents demanded by
grand-jury subpoenas issued to petitioner, its outside
counsel, and [2] three individuals who were pre-
viously employed as petitioners in-house counsel.
1

1
Petitioner John Doe 1 was ABC Corporations president
and sole shareholder. Petitioner John Doe 2 is John Doe 1s son
and is also affiliated with ABC Corporation. Pet. App. 7. The
court of appeals dismissed their appeal, holding that they lacked
standing to assert ABC Corporations attorney-client privilege.
Id. at 13-14; id. at 61 (Vanaskie, J., concurring in part and
dissenting in part). The petition contends in a footnote (Pet. 9-10
n.8) that the court of appeals should not have rejected the claims
of John Doe 1 and John Doe 2 without first requesting briefing
from the parties on standing or remanding to the district court.
App. 31

The government moved to enforce the subpoenas with
respect to some of the withheld documents on the
grounds that the documents were not privileged or
that any privilege was vitiated by the crime-fraud
exception. The district court granted the motions in
part and ordered petitioner, its outside counsel, and
its former in-house counsel to produce certain docu-
ments demanded by the subpoenas. The court of
appeals dismissed petitioners interlocutory appeal
with respect to the subpoenas issued to petitioner and
its outside counsel for lack of jurisdiction, and the
court affirmed the district courts decision with re-
spect to the subpoenas issued to petitioners former
in-house counsel. Pet. App. 1-76.
1. Petitioner is the subject of a federal grand-
jury investigation in the Eastern District of Pennsyl-
vania that seeks to determine whether petitioner and
individuals affiliated with petitioner participated in a
tax-evasion scheme. According to evidence submitted
to the grand jury, petitioner acquired companies with
large [3] cash accounts, few or no tangible assets, and
considerable tax liabilities, transferred the assets of
those companies into two limited liability companies,
and then engage[d] in various transactions that had
the effect of fraudulently eliminating the target

The petition does not, however, ask this Court to review the
standing issue. For that reason, and because any privilege claims
that John Doe 1 and John Doe 2 may have would be derivative
of ABC Corporations privilege, this brief refers to petitioner
ABC Corporation as petitioner.
App. 32

companies tax liabilities. Pet. App. 7-8. John Doe 1
and John Doe 2 would then divert the target com-
panies cash assets to themselves and their family
members. Id. at 8, 47.
2. a. In December 2010, the grand jury issued a
subpoena to petitioners custodian of records. Pet.
App. 8. The subpoena demanded all records relating
to transactions between petitioner and the two lim-
ited liability companies implicated in the alleged
criminal scheme. Ibid. After petitioner asserted that
the grand jury had not properly served its custodian
of records, and to avoid any problems arising from the
alleged service error, the grand jury later issued
subpoenas for those documents to two law firms that
had physical custody of the documents. Id. at 8-9.
Petitioner and the law firms responded to the sub-
poena but withheld 303 documents as privileged. Id.
at 9. The government moved to enforce the subpoenas
with respect to 171 of the withheld documents, argu-
ing that the documents were either not privileged or
that any privilege was vitiated by the crime-fraud
exception. Ibid.
In March 2012, the district court granted the
governments motion in part. Pet. App. 10; Pet. 5. In
the March order, the district court concluded that the
crime-fraud exception vitiated petitioners claims of
attorney-client and work-product privilege with re-
spect to 167 of the withheld documents and ordered
petitioner and the law firms to produce those docu-
ments to the grand jury. Pet. App. 10. Petitioner filed
an interlocutory appeal, and the court of appeals
App. 33

dismissed the ap-[4]peal for lack of jurisdiction. Ibid.
The court explained that petitioner could receive
immediate appellate review [only] by taking posses-
sion of the documents, refusing to produce them, and
then appealing any contempt sanctions imposed by
the [d]istrict [c]ourt. Ibid.
b. In December 2011, while the first set of
subpoenas was being litigated in the district court,
the grand jury issued subpoenas for documents and
testimony to three lawyers who were formerly em-
ployed by petitioner as in-house counsel. Pet. App. 12.
Those individuals refused to comply fully with the
subpoenas, invoking petitioners attorney-client privi-
lege and their own work-product privileges to withhold
45 documents. Id. at 1213. The government moved to
enforce the subpoenas, and petitioner intervened in
the district court to oppose the governments motion.
Id. at 13.
In June 2012, the district court granted the
governments motion in part and ordered the individ-
uals to produce 11 of the subpoenaed documents and
to testify before the grand jury. Pet. App. 4, 13; Pet. 7.
In the June order, the district court concluded, after
reviewing the records in camera, that the crime-fraud
exception vitiated petitioners attorney-client privi-
lege with respect to communications about certain
transactions that the district court determined were
part of a tax-evasion scheme. Pet. App. 13, 47-48
n.23. Petitioner filed an interlocutory appeal. The
court of appeals granted a petition for rehearing of
App. 34

its decision on petitioners first interlocutory appeal
and consolidated the two cases. Id. at 12-13.
3. The court of appeals held that it lacked
jurisdiction over petitioners interlocutory appeal
with respect to the subpoenas issued to petitioner and
its outside counsel, and it affirmed the district courts
decision with [5] respect to the subpoenas issued to
petitioners former in-house counsel. Pet. App. 1-76.
a. The court of appeals explained that an order
requiring a witness to produce documents or to testify
is generally not considered an appealable final order
and that [i]t is well settled that a witness who seeks
to present an objection to a discovery order immedi-
ately to a court of appeals must refuse compliance, be
held in contempt, and then appeal the contempt
order. Pet. App. 15-16 (quoting Church of Scientology
v. United States, 506 U.S. 9, 18 n.11 (1992)). The court
further explained that in Perlman v. United States,
247 U.S. 7 (1918), this Court created an exception to
that general rule where a disclosure order * * * is
directed at a disinterested third party lacking a
sufficient stake in the proceeding to risk contempt by
refusing compliance. Pet. App. 19 (citing Church of
Scientology, 506 U.S. at 18 n.11). Under those cir-
cumstances, the contempt route is not an option
because the privilege holder cannot itself disobey the
disclosure order and the third party to whom the
disclosure order is directed is unlikely to do so on [the
privilege holders] behalf. Id. at 19.
App. 35

Applying those precedents, the court of appeals
concluded that it lacked jurisdiction over petitioners
appeal from the district courts March order because
the contempt route remains open to [petitioner] with
respect to the subpoenas issued to petitioner and the
law firms. Pet. App. 25. The court explained that
although the documents demanded by those subpoe-
nas were in a law firms possession, they are [peti-
tioners] documents and are under its legal control,
and [petitioner] is responsible for deciding whether
to produce or withhold the documents, and could
properly be held in contempt for directing the law
firms to withhold them. Id. at 25-26. [6] The court
acknowledged that [t]he situation is complicated
because the district courts order is also directed at
[petitioners] outside counsel, exposing them to poten-
tial contempt sanctions. Id. at 26. But the court
explained that because the documents could be trans-
ferred to petitioners possession and the law firms
would not be targeted for contempt for making such a
transfer under court order, there is no need for us to
allow a Perlman appeal. Id. at 27, 31.
The court of appeals further concluded that the
Perlman exception did apply to petitioners appeal of
the district courts June order because that order was
directed solely at the three former * * * in-house
attorneys and the contempt route [was] [therefore]
not open to [petitioner]. Pet. App. 31. The court found
no basis to believe that these former employees are
anything but disinterested third parties who are un-
likely to stand in contempt to vindicate [petitioners]
App. 36

alleged privilege. Ibid. The court rejected the govern-
ments argument that this Courts decision in Mohawk
Industries, Inc. v. Carpenter, 558 U.S. 100 (2009), which
held that disclosure orders adverse to the attorney-
client privilege in civil litigation are not immediately
appealable under the collateral order doctrine, id. at
108-109, narrowed the scope of the Perlman doctrine
to exclude interlocutory appeals by subjects of grand-
jury investigations. Pet. App. 20-25, 32.
b. On the merits of the district courts June
order requiring petitioners former in-house counsel to
produce documents and to testify, the court of appeals
agreed that the crime-fraud exception vitiated peti-
tioners attorney-client privilege. Pet. App. 34-52.
2

The court [7] explained that a party seeking to over-
come the attorney-client privilege must make a prima
facie showing that (1) the client was committing or
intending to commit a crime or fraud, and (2) the
attorney-client communications were in furtherance
of the alleged crime or fraud. Id. at 36.
After surveying a variety of verbal formulations
used by the courts of appeals, the court stated that its
prior decisions describing a prima facie showing as
evidence which, if believed by the fact-finder, would
be sufficient to support a finding that the elements of

2
The court of appeals rejected petitioners arguments based
on the work-product privilege because that privilege belonged to
petitioners former in-house counsel, not to petitioner, and the
former in-house counsel did not appeal. Pet. App. 53-54.
App. 37

the crime-fraud exception were met were not par-
ticularly helpful because that formulation does not
quantify what evidence is sufficient. Pet. App. 39
(internal quotation marks and citations omitted). The
court explained, however, that its precedents were
consistent with the reasonable basis standard ap-
plied by other courts of appeals and that the standard
is intended to be reasonably demanding; neither
speculation nor evidence that shows only a distant
likelihood of corruption is enough. Id. at 39-41
(internal quotation marks and citation omitted).
Under the reasonable-basis standard, the attorney-
client privilege is vitiated [w]here there is a reason-
able basis to suspect that the privilege holder was
committing or intending to commit a crime or fraud
and that the attorney-client communications or attor-
ney work product were used in furtherance of the
alleged crime or fraud. Pet. App. 41. The court of
appeals stated that the reasonable-basis standard
was consistent with this Courts statement in Clark v.
United States, 289 U.S. 1, 15 (1933), that there must
be something to give colour [8] to the charge that a
communication was used in furtherance of a crime or
fraud. Pet. App. 41 (internal quotation marks omitted).
The court noted that although the district court used
the court of appeals sufficient to support language
from prior cases, the district court also concluded
that the Government had met its burden by estab-
lishing that there was a reasonable basis to suspect
that [petitioner] had committed a crime or fraud. Id.
at 39.
App. 38

The court of appeals rejected petitioners argu-
ment that the court should modify the standard to
establish crime-fraud by requiring the government to
demonstrate by a preponderance of the evidence that
the privilege has been employed to commit a crime or
fraud. Pet. App. 42 (citation omitted). The court
explained that, particularly * * * in the grand jury
context, where the need for speed, simplicity, and
secrecy weighs against imposing a crime-fraud stan-
dard that would require adversarial hearings or the
careful balancing of conflicting evidence, the policy
concerns served by the attorney-client privilege are
appropriately protected by the reasonable-basis stan-
dard. Id. at 43-44.
The court of appeals further concluded that, in
the particular circumstances presented here, the
crime-fraud exception applied. Pet. App. 45-52. The
court stated that, having reviewed unredacted ver-
sions of the district courts orders and ex parte sub-
missions from the government, we cannot say that
the [d]istrict [c]ourts detailed factual findings consti-
tuted clear error or that it abused its discretion in
determining that there was a reasonable basis to
suspect that [petitioner] was engaged in a criminal
scheme and that petitioner used the legal advice it
obtained in connection with these [9] transactions to
further its criminal scheme. Id. at 47, 50.
c. Judge Vanaskie concurred in part and dis-
sented in part. Pet. App. 61-76. He agreed that
the court of appeals had jurisdiction over the dis-
trict courts June order, but in his view, the court of
App. 39

appeals also had jurisdiction over petitioners appeal
from the March order to the extent that it required
production of documents by the law firms. Id. at 62-
75. Judge Vanaskie would have therefore reached the
merits of both orders. He would nevertheless have
affirmed on the grounds that the crime-fraud excep-
tion vitiated petitioners attorney-client privilege. Id.
at 75-76.
4. After the court of appeals issued its decision,
the law firms produced the previously withheld
documents, as required by the March order. Pet. 10.
Petitioners former in-house counsel also produced
the documents they had previously withheld, as
required by the June order. Ibid.

ARGUMENT
Petitioner contends (Pet. 11-30) that the courts
below used the wrong standard in holding that the
crime-fraud exception vitiated its attorney-client
privilege with respect to specific materials demanded
by grand-jury subpoenas issued to petitioner, two
outside law firms, and three individuals who were
formerly employed as petitioners in-house counsel.
Petitioner further contends (Pet. 31-39) that the court
of appeals had jurisdiction over petitioners interlocu-
tory appeal of the district courts order requiring
petitioner and the two law firms to produce docu-
ments in response to subpoenas pursuant to Perlman
v. United States, 247 U.S. 7 (1918). The court of
appeals applied a correct standard to assess the
App. 40

crime-fraud exception and correctly found Perlman
[10] inapplicable on the specific facts presented. Its
decision does not conflict with any decision of this
Court or another court of appeals and further review
is unwarranted.
1. a. Attorney-client communications that facili-
tate a present or future crime or fraud are not pro-
tected by the attorney-client privilege. Clark v. United
States, 289 U.S. 1, 15 (1933). The crime-fraud excep-
tion ensures that the seal of secrecy between lawyer
and client does not extend to communications made
for the purpose of getting advice for the commission of
a fraud or crime. United States v. Zolin, 491 U.S.
554, 563 (1989) (citations omitted). The exception
applies regardless of whether the attorney was a
knowing participant in the clients misconduct. See In
re Sealed Case, 676 F.2d 793, 812 (D.C. Cir. 1982);
United States v. Calvert, 523 F.2d 895, 909 (8th Cir.
1975), cert. denied, 424 U.S. 911 (1976).
In Clark, this Court stated that a mere charge of
illegality, not supported by any evidence, is insuffi-
cient to vitiate the privilege. 289 U.S. at 15. Rather,
there must be something to give colour to the
charge; there must be prima facie evidence that it
has some foundation in fact. Ibid. (citation omitted).
Although the Court has not further defined what
quantum of proof would satisfy the prima facie
standard, the courts of appeals have concluded that
the privilege is vitiated where there is a reasonable
basis to believe that the lawyers services were used
by the client to foster a crime or fraud. In re Grand
App. 41

Jury Proceedings, 417 F.3d 18, 23 (1st Cir. 2005), cert.
denied, 546 U.S. 1088 (2006).
As the First Circuit has explained, [t]he circuits
* * * all effectively allow piercing of the privilege on
[11] something less than a mathematical (more likely
than not) probability that the client intended to use
the attorney in furtherance of a crime or fraud. In re
Grand Jury Proceedings, 417 F.3d at 23; see also
United States v. Jacobs, 117 F.3d 82, 88 (2d Cir. 1997)
(privilege is vitiated where a prudent person would
have a reasonable basis to suspect the perpetration of
a crime or fraud and that defendants communica-
tions to his attorney were in furtherance thereof )
(citation omitted); In re Grand Jury Proceedings, 87
F.3d 377, 381 (9th Cir.) (district court must find rea-
sonable cause to believe that the attorneys services
were used in furtherance of [an] ongoing unlawful
scheme) (internal quotation marks and citation omit-
ted), cert. denied, 519 U.S. 945 (1996); In re Antitrust
Grand Jury, 805 F.2d 155, 165-166 (6th Cir. 1986)
(government must present evidence that raises more
than a strong suspicion that a crime was committed,
but not necessarily strong enough to effect an arrest
or secure an indictment); In re Sealed Case, 754 F.2d
395, 399 n.3 (D.C. Cir. 1985) (requiring a showing
that a prudent person have a reasonable basis to
suspect the perpetration or attempted perpetration of
a crime or fraud, and that the communications were
in furtherance thereof ) (internal quotation marks
and citation omitted).
App. 42

The court of appeals applied that general stan-
dard and concluded, based on its review of unredacted
versions of the district courts orders and ex parte
submissions from the government, that it [could] not
say that the [d]istrict [c]ourts detailed factual find-
ings constituted clear error or that it abused its
discretion in determining that there was a reasonable
basis to suspect that [petitioner] was engaged in a
criminal scheme and that petitioner used the legal
advice it obtained in con-[12]nection with these
transactions to further its criminal scheme. Pet. App.
47, 50. The court of appeals applied a correct stan-
dard and its fact-bound conclusion on that issue does
not warrant this Courts review. See United States v.
Johnston, 268 U.S. 220, 227 (1925) (We do not grant
* * * certiorari to review evidence and discuss specific
facts.).
The court of appeals correctly rejected petitioners
argument (Pet. 28) that the government must prove a
criminal or fraudulent purpose by a preponderance of
the evidence to vitiate the attorney-client privilege in
the context of a grand-jury investigation. Pet. App.
44. Federal Rule of Evidence 104(a), upon which peti-
tioner relies, does not expressly set forth any standard
of proof. Nor does this Courts decision in Bourjaily v.
United States, 483 U.S. 171 (1987), require a pre-
ponderance standard in grand-jury investigations.
In Bourjaily, the Court applied a preponderance
standard to admissibility determinations for hearsay
evidence at trial because the Court had tradition-
ally required that such trial determinations be
App. 43

established by a preponderance of proof. Id. at 175.
By contrast, in the grand jury context, the Court
has declined to impose rules that would saddle a
grand jury with minitrials and preliminary showings,
which would assuredly impede its investigation and
frustrate the publics interest in the fair and expedi-
tious administration of the criminal laws. United
States v. Dionisio, 410 U.S. 1, 17 (1973). The court of
appeals correctly adhered to those precedents.
b. Petitioner contends (Pet. 12-24) that the
decisions of the courts of appeals are in disarray on
the standard required for a prima facie showing that
the crime-[13]fraud exception vitiates the attorney-
client privilege. That is incorrect.
Petitioner states (Pet. 17-19) that the Second,
Sixth, and Eighth Circuits have required a showing of
probable cause to believe that a fraud or crime has
been committed and that the communications in ques-
tion were in furtherance of the fraud or crime. Pet.
17 (quoting Jacobs, 117 F.3d at 87); see also In re
Grand Jury Proceedings, 609 F.3d 909, 912 (8th Cir.
2010); United States v. Clem, 210 F.3d 373 (6th Cir.
2000) (Table), cert. denied, 531 U.S. 1154 (2001).
3

3
Petitioner contends (Pet. 20) that the First and Ninth
Circuits apply a reasonable cause standard, but petitioner
acknowledges that the standard is analogous to probable
cause. Petitioner also acknowledges (Pet. 22) that the D.C.
Circuit has described the standard of proof it applies to vitiate
the attorney-client privilege as of little practical difference
from the probable-cause standard applied by other courts. In re
App. 44

As the Sixth Circuit has explained, however, there
are not practical differences between the probable
cause standard and the prima facie standards formu-
lated in the [other] circuits. In re Antitrust Grand
Jury, 805 F.2d at 165-166. Courts applying a probable-
cause standard have defined probable cause as a
reasonable basis to suspect the perpetration or at-
tempted perpetration of a crime or fraud, and that
the communications were in furtherance thereof.
Jacobs, 117 F.3d at 87 (emphasis added); see In re
Antitrust Grand Jury, 805 F.2d at 165-167 (probable-
cause standard require[s] that a prudent person
have a reasonable basis to suspect the perpetration of
a crime or fraud) (emphasis added; citation omitted);
In re Sealed Case, 754 F.2d at 399 n.3 (noting that its
prima facie standard require[s] that a prudent per-
son have a [14] reasonable basis to suspect the perpe-
tration or attempted perpetration of a crime or fraud,
and that the communications were in furtherance
thereof ) (emphasis added).
The court of appeals thus did not, as petitioner
suggests (Pet. 24-28), create a new reasonable sus-
picion standard for vitiating the attorney-client
privilege that entails a less stringent showing than
probable cause. Moreover, petitioner does not even
advocate for the adoption of a probable-cause stan-
dard, and it identifies no authority in support of its
position (Pet. 28) that the government should be

Sealed Case, 754 F.2d at 399 n.3; see also In re Sealed Case, 107
F.3d 46, 50 (D.C. Cir. 1997).
App. 45

required to establish the applicability of the crime-
fraud exception by a preponderance of the evidence in
a grand-jury investigation. Petitioner has failed to
identify any conflict among the courts of appeals
warranting this Courts review.
c. Petitioner perceives (Pet. 29-30) disagree-
ment in the circuits as to whether a district court is
categorically barred from considering evidence from
the alleged privilege holder rebutting a crime-fraud
claim. Any such disagreement is not implicated in
petitioners case. The district court explicitly consid-
ered and rejected the declarations that petitioner
submitted as rebuttal evidence. See Pet. App. 51-52
(stating that the district court was not required to
credit [a] bald statement * * * from a grand jury
subject that petitioner did not seek legal advice that
was used to commit a crime or fraud). To the extent
that petitioner contends (Pet. 30 & n.18) that it was
entitled to oral argument or a hearing on its rebut-
tal evidence, it identifies no authority in support of
that position.
d. Petitioner further contends (Pet. 11-12, 24-
28) that application of a reasonable-basis standard to
vitiate the attorney-client privilege conflicts with this
Courts [15] statement in Zolin, supra, that the
showing required to vitiate the privilege is more
stringent than the showing required to justify in
camera review of allegedly privileged materials. The
quantum of proof required by the court of appeals to
vitiate the attorney-client privilege is more stringent
App. 46

than the standard adopted in Zolin, and the decisions
therefore do not conflict.
The issue in Zolin was whether the applicability
of the crime-fraud exception must be established by
independent evidence (i.e., without reference to the
content of the contested communications themselves),
or, alternatively, whether the applicability of that
exception can be resolved by an in camera inspection
of the allegedly privileged material. 491 U.S. at 556.
The Court held that the applicability of the crime-
fraud exception could be established through in
camera review if the party opposing the privilege
makes a showing of a factual basis adequate to
support a good faith belief by a reasonable person
that in camera review of the [disputed] materials may
reveal evidence to establish the claim that the crime-
fraud exception applies. Id. at 572 (emphasis added;
citation omitted). The Court stated that this showing
is not * * * a stringent one and that a lesser evi-
dentiary showing is needed to trigger in camera
review than is required ultimately to overcome the
privilege. Ibid.
The object of the Zolin inquiry is thus not to
determine whether the privilege has been vitiated but
whether in camera review of the disputed materials
would be useful in making that determination. Once
that minimal threshold is satisfied, the district court
will review the materials and make a further deter-
mination whether the evidence is sufficient to vitiate
the privilege, i.e., whether there is a reasonable
basis to suspect that the privi-[16]lege holder was
App. 47

committing or intending to commit a crime or fraud
and that the attorney-client communications or
attorney work product were used in furtherance of
the alleged crime or fraud. Pet. App. 41. Although
both inquiries employ a reasonableness test, the ob-
ject of the Zolin inquiry is whether in camera review
would be useful to determine whether the crime-fraud
exception applies, which is different and less strin-
gent than the further inquiry into whether the
exception in fact applies and vitiates the privilege.
2. Petitioner contends (Pet. 31-39) that the court
of appeals had jurisdiction over petitioners inter-
locutory appeal from the district courts March order
requiring petitioner and its outside counsel to pro-
duce documents in response to subpoenas. Further
review of that question is not warranted.
a. An order to testify or to produce documents
to a grand jury is generally not a final decision of the
district court subject to immediate appellate review
under 28 U.S.C. 1291. The usual route for appellate
review of a district court order compelling document
production or testimony demanded by a subpoena is
thus for the subpoena recipient to go into contempt of
court and appeal the contempt citation. See Church of
Scientology v. United States, 506 U.S. 9, 18 n.11
(1992); United States v. Ryan, 402 U.S. 530, 534
(1971); Cobbledick v. United States, 309 U.S. 323,
327-328 (1940); Alexander v. United States, 201 U.S.
117, 121 (1906). An exception to that general rule
applies when a disclosure order is directed at a dis-
interested third party who lacks a sufficient stake in
App. 48

the proceeding to risk contempt by refusing compli-
ance. See Perlman, 247 U.S. at 13-15.
Those legal principles are not in dispute. Rather,
petitioner disputes whether the Perlman exception
applies [17] on the facts of this case, where the grand
jury issued subpoenas to both petitioners custodian
of records and its outside counsel who had physical
custody of the documents. The court of appeals held
that, in those particular circumstances, a Perlman
appeal was not warranted. The court explained that
[a]lthough the documents [were in the physical
possession of a law firm, they are [petitioners]
documents and are under its legal control, that peti-
tioner is responsible for deciding whether to produce
or withhold the documents, and that petitioner
could properly be held in contempt for directing the
law firms to withhold them. Pet. App. 25-26. The court
addressed the concern that the law firms may feel
compelled to produce the documents to avoid contempt
sanctions by explaining that the law firms should
instead transfer custody of the documents to petitioner
and would in those circumstances not face contempt
sanctions for good-faith actions. Id. at 26-30.
The court of appeals application of Perlman was
sound. Perlman applies when a third party who has
custody of allegedly privileged documents would
likely choose to produce them rather than face con-
tempt in order to allow an appeal. In that situation,
the privilege holder has no power to protect the
privilege by going into contempt. But petitioner was
not powerless to prevent (Pet. 32) the law firms
App. 49

from producing the documents. As the court of ap-
peals explained, the documents belonged to petition-
er, and petitioner could prevent disclosure by taking
custody of the documents and refusing to produce
them, thereby allowing the normal contempt route of
appeal to operate. Pet. App. 10, 25, 29.
Petitioner contends (Pet. 34) that the court of
appeals decision gives the government a path to
avoiding [18] Perlman appeals by subpoenaing the
privilege holder in addition to whatever third party
has physical custody of the documents demanded by
the subpoena. That concern is unfounded. As the court
of appeals explained, its decision would only prevent
an appeal where a privilege holder subject to a disclo-
sure order retains legal control of the documents that
are in the physical possession of another and the
Government has agreed that the documents can be
transferred to the privilege holder without the trans-
feror risking contempt. Pet. App. 30-31. The court of
appeals conclusion that a Perlman appeal was war-
ranted to review the district courts order requiring
petitioners former in-house counsel to produce docu-
ments and to testify illustrates the narrow scope of its
jurisdictional holding.
b. Petitioner further contends (Pet. 37-39) that
the Court should grant the writ and decide whether
Perlman survives the Courts decision in Mohawk
Industries, Inc. v. Carpenter, 558 U.S. 100 (2009), in
which the Court held that disclosure orders adverse
to the attorney-client privilege in civil proceedings
are not immediately appealable under the collateral
App. 50

order doctrine because postjudgment appeals gener-
ally suffice to protect the rights of litigants and
ensure the vitality of the attorney-client privilege.
Id. at 109. But the court of appeals agreed with
petitioner that the Perlman exception survives the
Courts decision in Mohawk with respect to alleged
privilege holders who are the subjects of grand-jury
investigations (Pet. App. 20-25), and there is thus no
reason for the Court to grant certiorari in petitioners
case to review that question.
3. Finally, petitioner has not received a final
judgment of conviction, making its current claim of
harm extremely abstract. Assuming petitioner is
indicted and [19] convicted, petitioner can present its
attorney-client privilege claim (together with any
other legal claims) in a petition for review from any
direct appeal. See Ryan, 402 U.S. at 532 n.3.
This Court has often noted that encouragement
of delay is fatal to the vindication of the criminal law
and that intermediate appeals in criminal investiga-
tions and trials are for that reason particularly
disfavored. Cobbledick, 309 U.S. at 325; see also Di
Bella v. United States, 369 U.S. 121, 126 (1962)
([T]he delays and disruptions attendant upon inter-
mediate appeal are especially inimical to the effective
and fair administration of the criminal law.). That
policy fully applies in this case, and further review
here is therefore especially unwarranted.

App. 51

CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted.
DONALD B. VERRILLI, JR.
Solicitor General
KATHRYN KENEALLY
Assistant Attorney General
FRANK P. CIHLAR
GREGORY VICTOR DAVIS
ALEXANDER P. ROBBINS
Attorneys
JULY 2013

In Re Grand Jury Cert Petition

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