## Facts

- A television network produced an investigative broadcast about alleged error rates and workplace pressures in pap smear testing laboratories.
- A producer contacted the laboratory’s co-owner under false pretenses, claiming to be a cytotechnologist interested in starting a laboratory and learning about business operations.
- The producer visited the laboratory with an undercover camera operator posing as a computer expert; a concealed camera recorded the meeting and tour without the laboratory owners’ knowledge.
- The co-owner discussed the business and industry practices and gave a tour; he did not request confidentiality for the information shared.
- The network sent pap smear slides to the laboratory from a fictitious clinic as part of a comparison among several laboratories.
- The broadcast reported that an unnamed “lab in Arizona” failed to identify cervical cancer on several slides; the laboratory was not named, but the co-owner’s face appeared.
- The laboratory and its owners sued for multiple torts and sought punitive damages.
- In discovery, plaintiffs moved to compel production of documents withheld as attorney–client privileged and work product, arguing the crime-fraud exception applied because counsel allegedly helped plan wrongful undercover conduct.

## Issues

1. Whether the crime-fraud exception applied to defeat attorney–client privilege and work-product protection for communications and materials related to planning and executing the undercover investigation.
2. Whether plaintiffs made a prima facie showing that defendants were engaged in or planning a crime or fraud when seeking legal advice, and that the communications were in furtherance of that misconduct.

## Decision

- The court denied the motion to compel.
- The court held plaintiffs failed to make the required prima facie showing that legal advice was sought or used to further a crime or fraud.
- Attorney–client privilege and work-product protection therefore remained intact for the withheld materials.
- The court declined to compel production or further review of the disputed documents under the crime-fraud exception.

## Legal Principles

- Attorney–client privilege protects confidential communications made for the purpose of obtaining legal advice.
- The crime-fraud exception applies only when the requesting party makes a prima facie showing that (1) the client was engaged in or planning a crime or fraud when seeking advice, and (2) the communications were sufficiently related to and made in furtherance of that crime or fraud.
- It is insufficient that privileged communications merely relate to conduct later alleged to be unlawful; the communication must further the alleged crime or fraud.
- Allegations of civil torts alone do not automatically establish the kind of “crime or fraud” required to pierce privilege.
- Courts may consider the policy impact of broadly applying the exception where parties routinely seek legal review, including potential chilling of candid attorney advice.

## Conclusion

The district court refused to pierce attorney–client and work-product protections because plaintiffs did not establish a prima facie basis that the network’s legal consultations were undertaken to further criminal or fraudulent conduct in connection with the undercover newsgathering.


Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., 30 F. Supp. 2d 1182 (D. Ariz. 1998)