## Facts

- Federal prosecutors conducted a multi-year grand jury investigation into possible Foreign Corrupt Practices Act violations involving dealings with senior officials of a foreign country.
- The government sought Swiss bank records through a Mutual Legal Assistance Treaty request but did not obtain all requested records from Swiss authorities.
- Mercator Corporation and its chairman, James H. Giffen, retained Akin, Gump, Strauss, Hauer & Feld, L.L.P. to represent them in connection with the investigation.
- Akin Gump obtained certain Swiss bank records relating to accounts overlapping those targeted by the government.
- A federal grand jury issued subpoenas duces tecum (dated March 19, 2002 and August 2, 2002) to Akin Gump seeking bank records for thirty specified accounts at four Swiss banks.
- Akin Gump acknowledged possessing at least some responsive bank records but refused to produce them, asserting work-product protection based on counsel’s selection and compilation of third-party documents.
- Akin Gump declined to provide an in camera submission or detailed, document-specific proffer explaining how production would reveal counsel’s mental impressions or defense strategy.

## Issues

1. Whether counsel’s selection and compilation of otherwise non-privileged, third-party bank records qualified as protected attorney work product sufficient to resist a grand jury subpoena.
2. Whether the subpoena should be unenforced absent a showing that the government could not obtain the same records through alternative sources such as Swiss authorities.

## Decision

- The Second Circuit affirmed the district court’s order compelling Akin Gump to comply with the subpoenas.
- The court held appellants did not meet their burden to show a real (not speculative) risk that producing the specified records would reveal counsel’s mental impressions or strategy.
- The court rejected the work-product claim as conclusory because appellants offered neither in camera identification/submission nor a specific explanation connecting particular documents to protected opinion work product.
- Because work-product protection was not established on this record, the court did not require the government to demonstrate unavailability of the documents from alternative sources before enforcing the subpoenas.

## Legal Principles

- The party asserting work-product protection bears the burden of establishing its applicability with concrete, non-conclusory support.
- Third-party documents in an attorney’s possession are generally not protected as work product merely because they are held in counsel’s files.
- The “selection and compilation” theory can qualify as opinion work product only as a narrow exception requiring a specific showing of a real risk that disclosure of the assembled set will expose counsel’s mental impressions in relation to pending or anticipated litigation.
- Absent an adequate showing that requested materials are protected work product, a grand jury subpoena may be enforced without requiring the government to prove it exhausted alternative means to obtain the same documents.

## Conclusion

The Second Circuit enforced grand jury subpoenas for Swiss bank records held by defense counsel because the asserted “selection and compilation” work-product claim was unsupported by a specific, document-linked proffer demonstrating that production would reveal counsel’s thought processes.


In re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002 (Mercator Corp.), 318 F.3d 379 (2d Cir. 2003)