## Facts

- A federal grand jury investigated a corporation (“the Company”) after the Department of Justice received an anonymous letter alleging possible anticompetitive conduct.
- The Company’s former vice president and general counsel (“C”), the Company’s sole in-house attorney from 1976–1981, was subpoenaed to testify before the grand jury.
- At the Company’s direction, C invoked attorney–client privilege and refused to answer questions about several communications and topics.
- The disputed topics included: (1) C’s report to the Company president (“P”) about an overheard airport-hotel conversation suggesting possible wrongdoing; (2) C’s two “hunches” about Company conduct and the bases for those hunches; (3) a restaurant conversation in which C gave legal advice to a senior executive; (4) periodic legal-affairs discussions between C and P; and (5) a discussion between C and P while seated in first class on a commercial flight.
- The district court compelled testimony on several subjects but protected the restaurant legal-advice conversation.
- The Company appealed the compelled-testimony portions; the government cross-appealed the protection of the restaurant conversation.
- C indicated he would comply with the district court’s order if required, making a contempt route to appellate review unlikely.

## Issues

1. Whether the privilege holder may immediately appeal an order compelling its former counsel to testify before a grand jury when the witness is unlikely to invite contempt.
2. Whether, and to what extent, the attorney–client privilege protects in-house counsel communications that: (a) involve public or nonconfidential facts; (b) occur in public venues; (c) reflect counsel’s “hunches” and their bases; or (d) mix legal advice with business discussions.

## Decision

- The court held the order was immediately appealable by the Company because the witness had indicated he would comply, and requiring contempt would likely defeat meaningful review for the privilege holder.
- The court affirmed compelled testimony concerning: (1) the airport-hotel incident report and related exchange; and (2) C’s “hunches” and their bases.
- The court affirmed protection of the restaurant conversation with the senior executive as privileged, rejecting the government’s cross-appeal.
- The court reversed compelled testimony as to three other counsel–president communications, holding them privileged where made for legal advice and maintained as confidential.

## Legal Principles

- Attorney–client privilege protects confidential communications made for the purpose of seeking or providing legal advice; it protects communications, not underlying facts.
- A privilege holder may obtain immediate appellate review of a compelled-testimony order when the witness is likely to comply rather than incur contempt, leaving the holder without an effective path to review.
- Information obtained from public or nonconfidential sources is not privileged merely because an attorney learned or reported it; privilege may attach only to the confidential legal communication analyzing or advising about it.
- A conversation occurring in a public place is not automatically nonconfidential; the key is whether the participants reasonably intended and took steps to preserve confidentiality.
- For in-house counsel communications that mix legal and business matters, privilege applies where the predominant purpose is legal advice and confidentiality is preserved.

## Conclusion

The D.C. Circuit permitted an immediate appeal by the corporate privilege holder and drew a line between nonprivileged public or factual material and privileged confidential legal consultations, holding that some in-house counsel communications remained protected despite occurring in public settings when confidentiality was reasonably maintained.


In re Sealed Case, 737 F.2d 94 (D.C. Cir. 1984)