## Facts

- Federal prosecutors charged Charles LeCroy and Anthony C. Snell, employees of J.P. Morgan Chase (JPMC), with wire fraud based on an alleged scheme involving a false $50,000 legal invoice submitted to JPMC for purported services by attorney Ronald White.
- During a pre-indictment grand jury investigation, JPMC, LeCroy, and Snell received subpoenas.
- JPMC’s in-house counsel conducted internal interviews of LeCroy and Snell concerning matters implicated by the subpoenas.
- JPMC retained outside counsel and agreed to pay for LeCroy’s and Snell’s individual legal counsel.
- Counsel for JPMC, LeCroy, and Snell entered an oral joint defense/common-interest arrangement in connection with the investigation.
- LeCroy and Snell participated in multiple interviews with JPMC counsel, sometimes with personal counsel present and sometimes without.
- JPMC outside counsel warned LeCroy and Snell that JPMC would produce interview notes and related memoranda to the government if the government insisted.
- Despite the warning, LeCroy and Snell continued to participate in interviews that JPMC counsel memorialized in notes and memoranda.
- JPMC decided to produce the notes and/or memoranda to the grand jury.
- After indictment, LeCroy and Snell moved to bar the government from using the interview notes and memoranda, asserting attorney–client privilege and joint defense/common-interest protection.
- The government segregated the materials with non-trial “taint” attorneys pending a privilege ruling.

## Issues

1. Whether interview communications between JPMC counsel and employees LeCroy and Snell were protected from government use by the employees’ attorney–client privilege.
2. Whether an oral joint defense/common-interest arrangement prevented JPMC from producing its counsel’s interview notes and memoranda to the government and barred government use.
3. Whether any applicable protection was waived by the employees’ continued participation after explicit warnings that JPMC might disclose the materials.

## Decision

- The court denied the motion to preclude the government from using the JPMC interview notes and memoranda.
- The court held the materials were not protected by LeCroy’s or Snell’s attorney–client privilege against disclosure by JPMC.
- The court held the joint defense/common-interest theory did not bar JPMC, as the corporate client, from producing its counsel’s notes and memoranda to the government.
- The court found that, in any event, LeCroy and Snell waived any reasonable claim of confidentiality by continuing the interviews after being expressly warned of possible disclosure.

## Legal Principles

- Corporate counsel’s attorney–client relationship runs primarily to the corporation; employee communications in a corporate internal investigation do not, without more, give employees control over the corporation’s privilege or internal-investigation records.
- A corporation’s payment of employees’ separate counsel does not, by itself, create an attorney–client relationship between corporate counsel and the employees.
- Common-interest/joint-defense protection is derivative of existing privilege or work-product protection and depends on an actual intent to maintain confidentiality; it does not create a freestanding bar against disclosure by an aligned party.
- When an interviewee is clearly warned that communications or memorialized notes may be disclosed, continued participation can render any expectation of confidentiality unreasonable and support a finding of waiver.

## Conclusion

The court permitted government use of JPMC counsel’s internal-investigation interview notes and memoranda, concluding that the employees lacked an enforceable privilege to block JPMC’s disclosure, that the joint defense/common-interest arrangement did not prevent JPMC from cooperating, and that any arguable protection was waived after explicit warnings.


United States v. LeCroy, 348 F. Supp. 2d 375 (E.D. Pa. 2004)