## Facts

- A federal grand jury investigated alleged federal campaign-finance violations involving a corporation (“Company”) in sealed proceedings.
- The grand jury subpoenaed two internal documents, and the Company withheld them under attorney-client privilege and, for one document, work-product protection.
- Document 1 was an August 1994 memorandum from a Company vice president to the president (copied to general counsel) describing the vice president’s consultation with general counsel about campaign-finance laws.
- After the consultation and memorandum, the vice president solicited contributions from two business contacts to a former federal candidate and later authorized corporate reimbursements for those contributions, including amounts to offset tax consequences; the government contended the reimbursements were unlawful.
- Document 2 was a later memorandum by the general counsel (apparently prepared at outside counsel’s request) describing Company actions taken to correct the vice president’s use of corporate funds to reimburse donors.
- The district court reviewed both documents in camera and ordered production under the crime-fraud exception without deciding whether the materials otherwise satisfied privilege or work-product requirements.
- The Company refused to comply; the district court held the Company in contempt, and the Company appealed.

## Issues

1. What showing is required to apply the crime-fraud exception to attorney-client privilege and work-product protection in response to a grand jury subpoena?
2. Did the government make a sufficient showing that either subpoenaed document was “in furtherance of” a crime or fraud so as to defeat the asserted protections?

## Decision

- The court reversed the contempt order and remanded.
- The court held the crime-fraud exception requires a prima facie showing both that a crime or fraud occurred (or was planned) and that the specific communications or work product were used “in furtherance of” it.
- The government’s evidence, relying largely on timing and surrounding circumstances, did not adequately show that the vice president’s memorandum furthered wrongdoing rather than sought legal guidance.
- The general counsel’s memorandum, describing remedial actions after the alleged misconduct, could not plausibly be characterized as furthering the alleged scheme.

## Legal Principles

- Attorney-client privilege and work-product protection apply in grand jury proceedings, subject to the crime-fraud exception.
- The crime-fraud exception is limited and is not triggered merely because a communication relates to, discusses, or follows unlawful conduct.
- To pierce protection, the government must make a prima facie showing that the client was engaged in or planning a crime or fraud and that the communication or work product was itself in furtherance of the wrongdoing (e.g., planning, implementing, or concealing it).
- Communications reflecting after-the-fact remediation or corrective measures are generally not “in furtherance” of the alleged crime or fraud.
- In camera review may assist the court’s assessment but does not reduce the required substantive showing for the exception.

## Conclusion

The D.C. Circuit held that, on the record presented, the government did not meet the “in furtherance” requirement for the crime-fraud exception as to either document, so the order compelling production was improper and the resulting contempt sanction could not stand.


In re Sealed Case, 107 F.3d 46 (D.C. Cir. 1997)