## Facts

- A federal grand jury investigated a sports-agency scheme involving secret representation contracts with college football players who were presenting themselves as amateurs.
- World Sports & Entertainment, Inc. (World Sports) received a grand jury subpoena seeking all contracts between World Sports and college football players.
- Michael Feldberg, an attorney, represented both World Sports and its president, Norby Walters, and produced contracts from World Sports’ files to the grand jury on the corporation’s behalf.
- Feldberg initially produced 51 contracts dated after players’ collegiate eligibility expired; later he produced seven additional contracts, including contracts for players who still claimed eligibility but that were post-dated to appear lawful.
- After the post-dating issue surfaced, the grand jury indicted World Sports and Walters for mail fraud.
- The grand jury subpoenaed Feldberg to testify about how the contracts were located and produced, including who searched the files, where the search occurred, and why some contracts were not produced initially.
- Feldberg refused to answer certain questions, asserting attorney-client privilege; the government moved to compel.
- The district court compelled testimony about the mechanics of the search and production but sustained privilege as to questions that would disclose confidential client communications or legal advice.
- Walters and World Sports intervened and appealed the order compelling Feldberg’s testimony.

## Issues

1. Whether intervening clients may immediately appeal a district court order compelling their attorney to answer certain questions before a grand jury.
2. Whether attorney-client privilege or work-product protection bars grand jury questions to an attorney about the mechanics of locating and producing nonprivileged corporate records (e.g., who searched, where the search occurred, and when documents were obtained).
3. Whether requiring answers to such factual questions improperly forces disclosure of privileged communications or protected attorney mental impressions.

## Decision

- The court exercised jurisdiction and reached the merits of the intervenors’ privilege challenge.
- The court affirmed the order compelling Feldberg to answer questions about the mechanics of the document search and production.
- The court held that attorney-client privilege did not protect factual details about how nonprivileged corporate records were gathered and produced in response to a subpoena.
- The court held that the work-product doctrine did not bar the compelled testimony because the questions sought factual information rather than attorney opinions, strategy, or legal advice.
- The court allowed questioning aimed at determining whether subpoena compliance was proper, while preserving protection for confidential legal communications.

## Legal Principles

- Corporate records are generally not privileged, and a corporation lacks a Fifth Amendment privilege against production of its records; using counsel to produce such records does not create a privilege overlay.
- Attorney-client privilege protects confidential communications for the purpose of obtaining legal advice, not the attorney’s noncommunicative acts or logistical steps taken to comply with a subpoena.
- A grand jury may ask an attorney, acting functionally like a records custodian, factual questions about compliance mechanics (who searched, where, when, and what was produced), so long as the inquiry does not require disclosure of confidential legal advice or client communications.
- Work-product protection does not immunize underlying facts; it primarily protects attorney mental impressions, opinions, and legal strategies, which are not implicated by questions directed to factual mechanics of a search for nonprivileged documents.
- When an opponent makes a sufficient prima facie showing to invoke an exception to privilege (such as crime-fraud), the privilege holder must be given an opportunity to explain; a satisfactory explanation can preserve the privilege.

## Conclusion

The Seventh Circuit affirmed an order compelling an attorney to answer grand jury questions about the factual mechanics of searching for and producing nonprivileged corporate records, holding that neither attorney-client privilege nor work-product protection shields such compliance-related facts from legitimate grand jury inquiry.


In re Feldberg, 862 F.2d 622 (7th Cir. 1988)