## Facts

- A corporation marketed a surgical device through a call center and advertising directed at consumers.
- A county public health official complained to the FDA that the advertising inadequately disclosed risks.
- After learning of the complaint, the corporation retained counsel and, through counsel, sent letters to the FDA disputing the allegations and urging the FDA not to pursue an investigation.
- The FDA issued warning letters to the corporation and affiliated medical centers asserting that the advertising violated the Food, Drug, and Cosmetic Act by omitting required risk and qualification information.
- The corporation and medical centers retained additional attorneys to respond to the FDA warning letters.
- Federal investigators concluded the attorney-drafted letters may have contained false or misleading statements intended to obstruct the FDA investigation.
- A federal grand jury issued subpoenas to the attorneys seeking communications and related materials concerning the FDA letters and client-identifying records.
- The attorneys produced some documents but withheld others based on attorney–client privilege.

## Issues

1. What must the government show to invoke the crime–fraud exception to attorney–client privilege in a grand jury subpoena dispute?
2. After a prima facie showing of crime–fraud, may a court compel categorical production of all subpoenaed attorney–client communications without reviewing the documents in camera to determine whether each communication was in furtherance of the alleged illegality?

## Decision

- The Ninth Circuit vacated the district court’s blanket order compelling production and remanded.
- The court accepted that the government had made a prima facie showing sufficient to trigger potential application of the crime–fraud exception.
- The court held the district court erred by ordering wholesale production without a document-specific determination of which communications were sufficiently related to, and made in furtherance of, the alleged crime or fraud.
- The court directed the district court to conduct in camera review (or an equivalent narrowing method) to separate non-privileged, crime-fraud communications from privileged communications outside the exception.

## Legal Principles

- Attorney–client privilege protects confidential communications made for the purpose of obtaining or providing legal advice, but it does not protect communications used to further a crime or fraud.
- The crime–fraud exception requires: (1) a showing the client was engaged in or planning criminal or fraudulent conduct when seeking legal advice to further that conduct, and (2) a showing the specific communications sought were made in furtherance of, and sufficiently related to, the illegality.
- A court may find a prima facie basis for crime–fraud using independent, non-privileged evidence and need not rely on in camera review for that threshold showing.
- Even after a prima facie showing, compelled disclosure must be limited to communications that satisfy the “in furtherance” and “sufficiently related” requirements; a blanket production order is improper when subpoena categories likely include privileged communications outside the exception.
- In camera review is an appropriate procedural safeguard to ensure the exception is applied on a communication-by-communication basis where broad subpoenas risk sweeping in protected material.

## Conclusion

The Ninth Circuit held that a prima facie showing of crime–fraud does not justify categorical disclosure of all subpoenaed attorney–client materials; the court must use a document-specific process, typically in camera review, to compel only those communications made in furtherance of the alleged wrongdoing.


In re Grand Jury Investigation, 810 F.3d 1110 (9th Cir. 2016)