McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 414 of 414 results

Chapter: 18
Case Name:


Case Date Jurisdiction State Cite Checked

Chapter: 18.1
Case Name: In re Grand Jury, 705 F.3d 133, 151 (3d Cir. 2012)
(finding the crime fraud exception applicable; "Despite their importance, the protections afforded by the attorney-client privilege and the work product doctrine are not absolute. The Supreme Court has explained that the crime-fraud exception is one limit on the scope of the protection afforded by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal B 8/13

Chapter: 18.1
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 830 (E.D. Va. 2005)
("The rationale for the crime-fraud exception is closely tied to the policies underlying the attorney-client privilege. Whereas confidentiality of communications facilitates the rendering of sound legal advice, which is to be encouraged, it cannot be said that advice in furtherance of a fraudulent or unlawful goal is sound, nor is it to be encouraged."), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal VA

Chapter: 18.1
Case Name: Rambus, Inc. v. Infineon Techs. AG, 222 F.R.D. 280, 287 & n.19 (E.D. Va. 2004)
("Thus, although referred to as an 'exception' to the attorney-client privilege and work product doctrine, the crime/fraud exception is not truly an exception. (footnote omitted) Rather, it is an exclusion of certain activity from the protective reach of the privileges. In re Grand Jury Subpoena, 731 F.2d at 1038. As one noted commentator has put it, the crime/fraud 'exception' merely delineates the outer contours of the attorney-client and, work product privileges, recognizing the commonsense notion that these privileges 'cannot avail to protect the client in concerting with the attorney a crime or other evil enterprise.' . . . These observations are correct: the crime/fraud exception is not really an exception to the attorney-client privilege or work product doctrine, but instead is an exclusion of certain activity from the protection of the privileges. However, because most authorities use the term 'crime/fraud exception,' it will be used here too.")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 18.1
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 281 (E.D. Va. 2004)
("[A]though referred to as an 'exception' to the attorney-client and work product privileges, the crime/fraud exception is not truly an exception (footnote omitted). Rather, it is an exclusion of certain activity from the reach of the privileges. In re Grand Jury Subpoena, 731 F.2d at 1038.")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 18.2
Case Name: FTC v. Adept Management, Civ. No. 1:16-cv-00720-CL, 2018 U.S. Dist. LEXIS 111673 (D. Ore. July 3, 2018)
("The moving defendants are attempting to invoke the crime-fraud exception to the attorney client privilege. In the Ninth Circuit, '[a] party seeking to vitiate the attorney-client privilege under the crime-fraud exception must satisfy a two-part test.'. . . 'First, the party must show that 'the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme.' 'Second, it must demonstrate that the attorney-client communications for which production is sought are 'sufficiently related to' and were made ' in furtherance of [the] intended, or present, continuing illegality.' Id. (alterations in original) . . . . The burden of proof is preponderance of the evidence."; "The Court is not, in any event, persuaded that the Simpson Defendants have established a prima facie showing that the crime-fraud exception should apply in this case.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal OR

Chapter: 18.2
Case Name: Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, Adv. Pro. No. 08-01789 (SMB), Adv. Pro. No. 10-04216 (SMB), 2017 Bankr. LEXIS 519 (S.D.N.Y. Feb. 17, 2017)
("Notably, the crime-fraud exception does not rest on the principle that a client who seeks advice in furtherance of a planned or ongoing fraud thereby waives the right to rely on the attorney-client privilege. Instead, the crime-fraud exception arises out of the judiciary's recognition that the attorney-client privilege exists so that clients may confidentially seek 'sound legal advice.' In re Grand Jury Subpoena dated Sept. 15, 1983, 731 F.2d at 1038. As the Second Circuit has observed, 'advice in furtherance of a fraudulent or unlawful goal cannot be considered 'sound.' Id. Rather, such advice is 'socially perverse.' Id. It follows that courts should not extend the protections of the attorney-client privilege to such advice."; "Indeed, in Duttle, Magistrate Judge Francis went so far as to conclude, based upon the decision in In re Grand Jury Subpoena, that 'legal advice that furthers a fraudulent goal is not privileged, regardless of the innocence of the client seeking the advice.'"; "From the foregoing, is seems apparent that the issue in this proceeding is not one of waiver. There is, in fact, no suggestion that either Ms. Crupi or Ms. Bowen has been asked to waive her privilege with respect to the Guston & Guston documents. Nonetheless, because the Trustee has established that there is substantial reason to believe that Ms. Crupi was seeking advice from Guston & Guston in furtherance of actual or planned fraudulent activity, the Trustee is entitled to the production of the documents that would otherwise be privileged concerning the Defendants' purchase of the Mantoloking house. That Ms. Bowen may not have been involved in the fraudulent scheme does not alter this result.")

Case Date Jurisdiction State Cite Checked
2017-02-17 Federal NY

Chapter: 18.2
Case Name: In re Grand Jury Subpoena v. United States, No. 15-4080, 2016 U.S. App. LEXIS 5381 (4th Cir. App. March 23, 2016)
(analyzing the crime-fraud exception; "'This Circuit is not alone in holding that communications aimed at concealing a criminal or fraudulent scheme obliterate the privilege.'"; "With this framework in mind, we have reviewed the particulars of this case and determined that the district court did not clearly err in determining that the government successfully made a prima facie showing that the Traders engaged in a criminal or fraudulent scheme of misusing information about impending trades for personal gain. The district court's determination that the Traders intended to avoid detection and continue their scheme in communicating with Lawyer, not least by having Lawyer misrepresent their activities to the regulator, is likewise supported by the record."; "The Traders repeatedly argue that nothing 'in the record' supports the district court's determination here. . . . The Traders claim, for example, that 'the Government lacks evidence' to support the crime-fraud exception and thus attempts to 'fall[] back on the communications themselves' to make the necessary showing. But the Traders, who were, by definition, excluded from the grand jury proceedings and thus not privy to what evidence or theories the complete record contains, see Fed. R. Crim. P. 6, are tilting at windmills.")

Case Date Jurisdiction State Cite Checked
2016-03-23 Federal

Chapter: 18.2
Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *14 (E.D. Wis. July 10, 2013)
("Communications about past wrongdoing are not discoverable; only communications in furtherance of ongoing or future criminal conduct lose protection.")

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 18.2
Case Name: United States v. Pons, No. 11 CR 670, 2013 U.S. Dist. LEXIS 35903, at *10-11 (N.D. Ill. Mar. 15, 2013)
("The exception comes from the recognition that when legal advice relates 'not to prior wrongdoing, but to future wrongdoing,' the privilege goes beyond what is necessary to achieve its purpose." (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal IL B 3/14

Chapter: 18.2
Case Name: People v. Radojcic, 998 N.E.2d 1212, 1222 (Ill. 2013)
("A client, of course, may consult with his or her attorney about the legal implications of a proposed course of conduct, or how to defend against the legal consequences of past conduct, without triggering the crime-fraud exception. Such good-faith consultations are protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 5/14

Chapter: 18.2
Case Name: People v. Radojcic, 998 N.E.2d 1212, 1222 (Ill. 2013)
("The privilege does not extend, however, to a client who seeks or obtains the services of an attorney to further an 'ongoing or future crime or fraud.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 5/14

Chapter: 18.2
Case Name: People v. Radojcic, 998 N.E.2d 1212, 1222 (Ill. 2013)
(analyzing the crime-fraud exception in a criminal prosecution involving alleged mortgage fraud; "A client, of course, may consult with his or her attorney about the legal implications of a proposed course of conduct, or how to defend against the legal consequences of past conduct, without triggering the crime-fraud exception. Such good-faith consultations are protected by the attorney-client privilege. . . . The privilege does not extend, however, to a client who seeks or obtains the services of an attorney to further an 'ongoing or future crime or fraud.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 5/14

Chapter: 18.2
Case Name: In re Grand Jury, 705 F.3d 133, 152 (3d Cir. 2012)
(finding the crime fraud exception applicable; "Courts of appeals have articulated the proper measure of proof in different ways. Some require there to be probable cause or a reasonable basis to suspect or believe that the client was committing or intending to commit a crime or fraud and that the attorney-client communications were used in furtherance of the alleged crime or fraud. . . . Other courts call for evidence sufficient to compel the party asserting the privilege to come forward with an explanation for the evidence offered against the privilege. . . . Still other courts demand a showing of evidence that, if believed by a trier of fact, would establish that some violation was ongoing or about to be committed and that the attorney-client communications were used in furtherance of that scheme.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal B 8/13

Chapter: 18.2
Case Name: Webb v. Joiner, Case No. CL03-312, 2006 Va. Cir. LEXIS 241 (Roanoke Cty., Va. Cir. Ct. July 17, 2006)
(finding the crime-fraud exception applicable to documents which contradict earlier testimony; "A confidential communication made by a client to his attorney under any of these protections is privileged from disclosure provided it is not made in perpetration of a fraud."; "In this case, defendant physician's testimony at his deposition concerning matters surrounding the alleged malpractice was different from the actions he described in the handwritten memo to his insurance carrier. The obvious conclusion is that the defendant physician either made, or appeared to have made, a material misrepresentation of fact with intent to mislead. The making, or just the appearance of making, an intentional misrepresentation with intent to mislead, during or in contemplation of litigation, is not protected by the rules regarding privileged communications or the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2006-07-17 State VA

Chapter: 18.2
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 829-30 (E.D. Va. 2005)
("The crime-fraud exception applies only to communications about ongoing or future activities. Communications concerning past crimes or frauds are privileged unless the privilege has otherwise been waived. In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1041 (2nd Cir. 1984) (stating that communications with respect to past frauds are privileged); X Corp., 805 F.Supp. at 1307 (same)." (footnote omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal VA

Chapter: 18.2
Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1306 n.16 (E.D. Va. 1992)
(analyzing a lawsuit in which an in-house lawyer alleged wrongful termination; "The crime-fraud exception applies only to communications about ongoing or future activities. Communications concerning past crimes or frauds are privileged, unless the privilege has otherwise been waived."; ultimately concluding that the employee was entitled to a preliminary injunction preventing the in-house lawyer plaintiff from disclosing confidential information beyond his own lawyer, but refusing to order the plaintiff to return documents that he had taken when he left his employment; the Fourth Circuit ultimately upheld a permanent injunction prohibiting the in-house lawyer from disclosing confidential communication, Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143, 17 F.3d 1435 (4th Cir. Feb. 23, 1994) (unpublished opinion))

Case Date Jurisdiction State Cite Checked
1992-01-01 Federal VA N 3/10

Chapter: 18.2
Case Name: Cogdill v. Commonwealth, 219 Va. 272, 276, 247 S.E. 2d 392, 395 (1978)
("[W]e note that the attorney-client privilege does not extend to communications made in contemplation of a crime."; holding that the trial court properly admitted into evidence a tape recording of a lawyer and a secretary about the possibility of the secretary becoming a prostitute).

Case Date Jurisdiction State Cite Checked
1978-01-01 State VA

Chapter: 18.2
Case Name: Seventh Dist. Comm. of the Va. State Bar v. Gunter, 212 Va. 278, 287, 183 S.E.2d 713, 719 (Va. 1971)
("[T]here is a wide difference between doing, conspiring and contriving a wrong and in seeking counsel after the wrong is done. The protection which the law affords to communications between attorney and client has reference to those which are legitimately and properly within the scope of a lawful employment and does not extend to communications made in contemplation of a crime, or perpetration of a fraud. If the client does not frankly and freely reveal his object and intention as well as facts, there is not professional confidence and therefore no privilege. The rule of privilege is defensive, not offensive. If the communication between attorney and client relates to unlawful or fraudulent accomplishment, higher public policy, and the duty of an attorney to society as a whole, abrogates the privilege. If the client does not disclose his fraudulent purpose there is no confidential relationship established, and no attaching privilege." (citations omitted); finding that the attorney-client privilege did not protect communications between the defendant lawyer and his lawyers about how to defraud the disciplinary Committee)

Case Date Jurisdiction State Cite Checked
1971-01-01 State VA

Chapter: 18.7
Case Name: Drummond Company, Inc. v. Conrad & Scherer, LLP, Nos. 16-11090, 15-90031, 2018 WL (11th Cir. App. March 23, 2018)
(holding that the crime-fraud exception could apply even if the client was innocent of any wrongdoing; "After determining that the crime-fraud exception may apply, the district court ordered a special master to review in camera the documents that Collingsworth and C&S claimed were privileged or protected as attorney work product to determine whether each individual document was in furtherance of or closely related to a fraud on the court or crime and therefore should be produced to Drummond. The court also set forth a procedure for the special master to assess a witness's assertion or attorney-client privilege or attorney work product protection in a deposition. The court directed that when necessary a witness should give in camera testimony, potentially ex parte, so that the special master could appropriately assess any privilege issues while limiting disclosure only to information used or created in furtherance of the crime or fraud.")

Case Date Jurisdiction State Cite Checked
2018-03-23 Federal
Comment:

key case


Chapter: 18.7
Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "Through its ex parte production of evidence, the SCO has clearly met its burden of making a prima facie showing that the crime-fraud exception applies by showing that the Targets were 'engaged in or planning a criminal or fraudulent scheme when [they] sought the advice of counsel to further the scheme.'")

Case Date Jurisdiction State Cite Checked
2017-10-02 Federal DC

Chapter: 18.7
Case Name: Douberley v. Perlmutter, No. 4D16-2597, 2017 Fla. App. LEXIS 7542 (Fla. App. 4d May 24, 2017)
(analyzing crime-fraud exception questions that arose in connection with a defamation case filed by a businessman Peerenboom against Marvel CEO Perlmutter; noting that Peerenboom's lawyer Douberley secretly obtained Permutter's DNA during a deposition; remanding, because the magistrate judge had not properly conducted a hearing on the crime-fraud exception; "[T]he attorney scheduled their depositions in that action. During the deposition, the attorney arranged to show 'exhibits' to the deponents (now defendants). The paper used to create the exhibits was treated with chemicals to facilitate DNA collection and the deponents were to touch those items. The deponents' discarded water bottles were also to be collected following the deposition. Thereafter, DNA tests would be run to compare their DNA and fingerprints to those retrieved from the hate mail sent, which formed the basis of the instant defamation action."; "Florida courts have held that due process requires an evidentiary hearing to determine applicability of the crime-fraud exception."; "We therefore quash the order and remand the case to the trial court to conduct a hearing with notice to the attorney and an opportunity to be heard.")

Case Date Jurisdiction State Cite Checked
2017-05-24 Federal

Chapter: 18.7
Case Name: Meyer v. Kalanick, 15 Civ. 9796, 2016 U.S. Dist. LEXIS 74214 (S.D.N.Y. June 7, 2016)
("In sum, plaintiff has provided sufficient evidence to provide a 'prudent person' with 'a reasonable basis to suspect' that a fraud took place and that Uber communications 'were in furtherance thereof.'. . . Put differently, plaintiff has presented 'evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception's applicability.'. . . Of course, the Court has no way to know prior to reviewing the documents in question whether or not the crime-fraud exception does in fact apply to some or all of the documents. But plaintiff has made its threshold showing, and the determination whether privilege has been correctly asserted must now be made through in camera review, after which any materials judged not to be privileged will be disclosed to plaintiff. Such an incremental approach 'strikes the correct balance'. . . between the important values supporting the attorney-client privilege . . . and the need to ensure that the privilege does not extend so far that it shields communications made in furtherance of a fraud or a crime.")

Case Date Jurisdiction State Cite Checked
2016-06-07 Federal NY

Chapter: 18.7
Case Name: In re Animation Workers Antitrust Litigation, Case No. 5:14-cv-04062-LHK, 2016 U.S. Dist. LEXIS 44154 (N.D. Cal. March 30, 2016)
(finding the crime-fraud exception inapplicable, but noting that a civil antitrust violation could trigger the exception under different circumstances; "Last week, the court ordered Defendant Pixar to submit for in camera review various documents involving former Pixar Executive Vice President and General Counsel Lois Scali. Pixar has asserted that these documents are subject to the attorney-client privilege. Notwithstanding that assertion, and after considering evidence from Pixar supporting that assertion, the court held that Plaintiffs had shown there was 'a reasonable, good-faith belief that review of the privileged documents may reveal evidence to establish the claim that the crime fraud exception applies.' The exception applies where (1) the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme and (2) the attorney-client communications for which production is sought are 'sufficiently related to' and were made in furtherance of the intended, or present, continuing illegality."; "While Plaintiffs initially sought in camera review of the documents, what they ultimately seek is the documents' production. Production, as compared to mere in camera review, carries a higher burden of proof than merely a 'reasonable, good-faith belief.' In civil cases such as this one, that burden is preponderance of the evidence, or whether 'it is more likely than not that the party resisting the disclosures sought or used legal advice to commit or to try to commit a crime or fraud.' Having read each and every document submitted, the court holds that Plaintiffs' burden, at least as to the first part of the applicable test, is not yet met.")

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal CA

Chapter: 18.7
Case Name: In re Grand Jury Subpoena v. United States, No. 15-4080, 2016 U.S. App. LEXIS 5381 (4th Cir. App. March 23, 2016)
(analyzing the crime-fraud exception; "'This Circuit is not alone in holding that communications aimed at concealing a criminal or fraudulent scheme obliterate the privilege.'"; "With this framework in mind, we have reviewed the particulars of this case and determined that the district court did not clearly err in determining that the government successfully made a prima facie showing that the Traders engaged in a criminal or fraudulent scheme of misusing information about impending trades for personal gain. The district court's determination that the Traders intended to avoid detection and continue their scheme in communicating with Lawyer, not least by having Lawyer misrepresent their activities to the regulator, is likewise supported by the record."; "The Traders repeatedly argue that nothing 'in the record' supports the district court's determination here. . . . The Traders claim, for example, that 'the Government lacks evidence' to support the crime-fraud exception and thus attempts to 'fall[] back on the communications themselves' to make the necessary showing. But the Traders, who were, by definition, excluded from the grand jury proceedings and thus not privy to what evidence or theories the complete record contains, see Fed. R. Crim. P. 6, are tilting at windmills.")

Case Date Jurisdiction State Cite Checked
2016-03-23 Federal

Chapter: 18.7
Case Name: In re Grand Jury Subpoena v. United States, No. 15-4080, 2016 U.S. App. LEXIS 5381 (4th Cir. App. March 23, 2016)
(analyzing the crime-fraud exception; "[G]rand jury proceedings are closed and secret. Fed. R. Crim. P. 6. And we have long held that not only facts supporting the crime-fraud exception, but even the nature of the alleged crime or fraud itself, may be presented ex parte and held in confidence. . . . The party asserting privilege may thus be forced to make a best guess as to the crime and evidence it must counter.")

Case Date Jurisdiction State Cite Checked
2016-03-23 Federal

Chapter: 18.7
Case Name: In re Subpoena to Testify Before Grand Jury, Case No. 15-mc-80207-JSC, 2015 U.S. Dist. LEXIS 122305 (N.D. Cal. Sept. 14, 2015)
("A party seeking disclosure of attorney-client communications or attorney work product under the crime-fraud exception bears the burden of demonstrating that the privilege does not apply. Specifically, '[a] party seeking to vitiate the attorney-client privilege [or work product doctrine] under the crime-fraud exception must satisfy a two-part test.'. . . First, the party must show that 'the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme.'. . . 'Second, it must demonstrate that the attorney-client communications for which production is sought are 'sufficiently related to' and were made 'in furtherance of [the] intended, or present, continuing illegality.'").

Case Date Jurisdiction State Cite Checked
2015-09-14 Federal CA

Chapter: 18.7
Case Name: In re Subpoena to Testify Before Grand Jury, Case No. 15-mc-80207-JSC, 2015 U.S. Dist. LEXIS 122305 (N.D. Cal. Sept. 14, 2015)
("[I]n United States v. Christensen, F.3d, 2015 U.S. App. LEXIS 14961, Nos. 08-50531 et al., 2015 WL 5010591, at *23 (9th Cir. Aug. 25, 2015), the Ninth Circuit implied that the two-step Zolin analysis is always required, even if the government has met the higher 'reasonable cause' burden. See 2015 U.S. App. LEXIS 14961, [WL] at *24 ('Zolin requires a district court to follow a two-step ex parte process to determine whether the crime-fraud exception applies to potentially privileged materials.') (citing Zolin, 491 U.S. at 572). The Christensen court determined that the district court erred by not applying Zolin's two-step framework initially, but found the error harmless because the court 'recognized its own error and reconsidered its decision under the correct framework.' 2015 U.S. App. LEXIS 14961, [WL] at *23.").

Case Date Jurisdiction State Cite Checked
2015-09-14 Federal CA

Chapter: 18.7
Case Name: United States v. Under Seal (In re Grand Jury Investigation), 352 F. App'x 805, 808 (4th Cir. 2009)
("The invocation of the crime-fraud exception requires a prima facie showing that '(1) the client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme, and (2) the documents containing the privileged materials bear a close relationship to the client's existing or future scheme to commit a crime or fraud.' In re Grand Jury Proceedings # 5, 401 F.3d at 251 (citations omitted). A party invoking the crime-fraud exception can satisfy the first prong of this test by making a prima facie showing of evidence, which, if accepted by the trier of fact, establishes the elements of an ongoing or prospective violation of the law. . . . The second prong of this test is satisfied with a showing of a close relationship between the withheld communications and the alleged violation. . . . Once a sufficient showing has been made, the attorney-client privilege ceases to protect any of the communications related to the alleged violation. In re Grand Jury Subpoena, 419 F.3d 329, 345 (5th Cir. 2005) (citing In re Sealed Case, 676 F.2d 793, 812 n.74, 219 U.S. App. D.C. 195 (D.C. Cir. 1982)). . . . the district court could decide whether the crime-fraud exception applies in either of two ways. See In re Grand Jury Subpoena # 06-1, 274 F. App'x at 309. One approach permits the district court to examine the withheld documents in an in camera hearing after the Government makes a factual showing that would support a good faith belief by a reasonable person that an examination of the withheld documents would reveal evidence of a violation of the law. Id. at 310 (citations omitted). In the alternative, the district court could make a determination that the crime-fraud exception applied without examining the withheld documents by conducting an ex parte and in camera examination of evidence from the Government. Id. This second alternative does not require that the Government make a threshold factual showing of the basis for the application of the crime-fraud exception. Id. In determining whether the crime-fraud exception applies, courts may rely on evidence not ordinarily admissible at trial. In re Grand Jury Subpoena, 884 F.2d at 127.")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal

Chapter: 18.7
Case Name: United States v. Under Seal # 4 (In re Grand Jury Subpoena # 06-1), 274 F. App'x 306, 309-10, 309 (4th Cir. 2008) (unpublished opinion)
(assessing the crime-fraud exception; "The district court may determine whether the crime fraud exception applies in one of two ways. As the Supreme Court explained in Zolin, the court may examine the assertedly privileged documents themselves in an in camera hearing, provided that the party invoking the exception, here the Government, first makes a threshold 'showing of a factual basis adequate to support a good faith belief by a reasonable person' that the hearing would reveal evidence of crime or fraud. . . . Alternatively, the district court may 'examine[] evidence from the opponent of the privilege,' here the Government, 'ex parte and in camera without examining the allegedly privileged documents themselves.' . . . Under this approach, the Government would not be required to make a threshold showing regarding the factual basis for application of the exception prior to making the in camera submission. . . . In either case, however, on remand the Government bears the burden of establishing a prima facie case demonstrating that the crime fraud exception applies."; "[T]he Government has made a colorable argument that the crime fraud exception would apply to the withheld communications. We find it appropriate, therefore, to vacate the district court's order and remand the case to allow the court to consider the Government's contention that 'the client was engaged in or planning a criminal or fraudulent scheme when he sought the advise [sic] of counsel to further the scheme' and that those communications 'bear a close relationship to the client's existing or future scheme to commit a crime or fraud.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2008-01-01 Federal B 6/09; n

Chapter: 18.7
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 255 (4th Cir. 2005)
(holding that the district court could not have applied the crime-fraud exception because it did not review the documents in camera, and therefore could not have concluded that the privileged communications bore a "close relationship to their existing or future scheme to commit a crime or fraud"; remanding for the court to conduct an in camera review or otherwise analyze the crime-fraud exception properly)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 18.7
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 287 (E.D. Va. 2004)
("[W]ill conduct an in camera review of the privileged documents to determine whether the documents themselves give rise to a prima facie case of spoliation sufficient to support application of the crime/fraud exception. Zolin, 491 U.S. at 574-75; In re Grand Jury Proceedings, 33 F.3d 342, 350 (4th Cir. 1994).")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 18.7
Case Name: Union Camp Corp. v. Lewis, 385 F.2d 143, 144-45 (4th Cir. 1967)
("The attorney-client privilege is withdrawn upon a prima facie showing that the lawyer's advice was designed to serve his client in commission of a fraud or crime. . . The government met this burden. It was not at this stage of the proceedings required to prove the crime or fraud in order to secure the evidence. This leads us to add, perhaps unnecessarily, that in denying the writ, we express no opinion upon the facts or law touching upon the merits of the case. Nor do we foreclose Union Camp, or others, if an indictment be returned, from moving to suppress the evidence or otherwise objecting to its admission.")

Case Date Jurisdiction State Cite Checked
1967-01-01 Federal

Chapter: 18.302
Case Name: Guyton v. Exact Software North America, Case No. 2:14-cv-502, 2015 U.S. Dist. LEXIS 170241 (S.D. Ohio Dec. 21, 2015)
("Here, Ms. Guyton argues that the crime-fraud exception applies because '[p]roviding false statements to the EEOC violates federal criminal statutes in 18 U.S.C. 1001 (providing false statements to a federal agency) and for Ms. Pannkuk's [Defendant's human resources manager] affidavit, 18 U.S.C. 1621 prohibits perjury in an affidavit.'. . . While there appears to be no dispute that those statutes could trigger an application of the crime-fraud exception, the issue is whether those statutes are applicable to the facts of this case."; "Both of the statutes relied upon by Ms. Guyton have an intent element."; "Here, there is no evidence to demonstrate that Ms. Pannkuk had actual knowledge of the falsity of the statements in her affidavit.")

Case Date Jurisdiction State Cite Checked
2015-12-21 Federal OH

Chapter: 18.302
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015)
(finding the crime-fraud exception inapplicable because the ignition switch plaintiffs could not establish that the King & Spalding communications furthered any alleged General Motors wrongdoing; "Plaintiffs' first theory -- that New GM's communications with K&S were intended to (and did) conceal the existence of the ignition switch defect from the public and regulators -- gained some traction when New GM entered the DPA because it is now indisputable that there is probable cause to believe that New GM engaged in a scheme to conceal a deadly safety defect from its regulator, NHTSA, and committed wire fraud in doing so. . . . Plaintiffs' bid falls short, however, with respect to the second prong of the crime-fraud test. Put simply, Plaintiffs do not provide a factual basis for a good faith belief that the communications and work product they seek -- let alone any particular communications or work product they seek -- were made with the intent to further a crime or fraud."; "To be sure, the confidential settlements in the Chansuthus, Sullivan, and Melton matters may, in some respects, have contributed to the delay in notifying the public and New GM's regulators about the ignition switch defect. But there is an important distinction between effect and intent.")

Case Date Jurisdiction State Cite Checked
2015-11-25 Federal NY
Comment:

key case


Chapter: 18.302
Case Name: In re Chinese Manufactured Drywall Prods. Liability Litig., MDL No. 2047 Section L, 2015 U.S. Dist. LEXIS 153164 (E.D. La. Nov. 12, 2015)
(finding that the crime-fraud exception applied; "After reviewing the emails, the Court concludes that certain communications are subject to the crime-fraud exception to attorney-client privilege in that they revolve around Taishan's intent to commit criminal contempt.")

Case Date Jurisdiction State Cite Checked
2015-11-12 Federal LA

Chapter: 18.302
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *10 (E.D. Va. Dec. 3, 2012)
("The Fourth Circuit instructs that '[b]oth the attorney-client and work product privileges may be lost . . . when a client gives information to an attorney for the purpose of committing or furthering a crime or fraud.' In re Grand Jury Proceedings #5, 401 F.3d at 251 (citing In re Grand Jury Subpoena (Under Seal), 884 F.2d 124, 127 (4th Cir. 1989)).")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA

Chapter: 18.302
Case Name: United States v. Under Seal (In re Grand Jury Investigation), 352 F. App'x 805, 809-10 (4th Cir. 2009)
("In its ex parte submission, the Government has provided the court with prima facie evidence that the Corporation, its principals and the Isle of Man Entity had an agreement to defraud the United States Government in contravention of § 371. . . . The crime-fraud exception is limited to those communications and documents in furtherance of future or ongoing criminal or fraudulent conduct. In re Grand Jury Subpoena, 419 F.3d at 343. Therefore, a party seeking access to materials via the crime-fraud exception must demonstrate a close relationship between the desired materials and an alleged criminal or fraudulent conduct. In re Grand Jury Proceedings # 5, 401 F.3d at 251. However, in making the close relationship determination, courts must take into account that the party invoking the crime-fraud exception, here the Government, does not know exactly what the material will show. See In re Grand Jury Investigation, 842 F.2d 1223, 1227 (11th Cir. 1987). Courts can base a finding of the requisite close relationship on an examination of an in camera submission of evidence by the party invoking the exception so long as the court has some evidence of the contents of the withheld material. See In re Grand Jury Proceedings, 33 F.3d at 351; cf. In re Grand Jury Proceedings # 5, 401 F.3d at 255. In making this finding we review both the Government's ex parte submission of evidence and Counsel's privilege log, which references documents from as early as 1986. The Government's evidence indicates that the Corporation's scheme to defraud the United States dates back as far as 1984 and that the Corporation sought Counsel's legal advice for the sole purpose of facilitating its scheme to defraud the United States. Therefore, all of the withheld documents bear the requisite close relationship to the alleged violation of § 371 because they were in furtherance of the alleged scheme. We conclude that the Government has made a prima facie showing that there is a close relationship between the withheld documents and the alleged violation of § 371.")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal

Chapter: 18.302
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 831 (E.D. Va. 2005)
("[T]here can be little doubt that Lentz, in contacting Mr. Salvato, was seeking aid and information from his attorney to further his nascent murder-for-hire plot."), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal VA

Chapter: 18.302
Case Name: Rambus, Inc. v. Infineon Techs. AG, 222 F.R.D. 280, 287 (E.D. Va. 2004)
("The crime/fraud exception to the attorney-client and work product privileges provides that otherwise privileged communications or work product made for, or in furtherance of, the purpose of committing a crime or fraud will not be privileged or protected. Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999); In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994); see generally Developments in the Law--Privileged Communications, 98 Harv. L. Rev. 1450, 1509-14 (1985).")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 18.302
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 280 (E.D. Va. 2004)
("The crime/fraud exception to the attorney-client and work product privileges provides that otherwise privielged communications or work product made for, or in furtherance of, the purpose of committing a crime or fraud will not be privileged or protected. Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999); In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994); see generally Developments in the Law--Privileged Communications, 98 Harv. L. Rev. 1450, 1509-14 (1985).")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 18.303
Case Name: Adidas America, Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2018 U.S. Dist. LEXIS 164159 (D. Ore. Sept. 25, 2018)
(finding the crime-fraud exception applicable; inexplicably ordering production of a category of documents rather than analyzing the documents one at a time; "Plaintiffs argue that the Court should only consider the intent of the declarant (outside counsel), or possibly the person responsible for the filing and who directed outside counsel . . . the 'registrant' here is Reebok. Further, from a policy standpoint, it makes little sense to consider only the signatory's knowledge and intent. Under Plaintiffs' approach, a registrant could engage in fraudulent conduct but keep outside counsel in the dark, and would then be able to engage in fraud on the PTO with impunity. The Court thus considers Reebok's knowledge and intent, not just outside counsel's or Ms. Han's.")

Case Date Jurisdiction State Cite Checked
2018-09-25 Federal OR

Chapter: 18.303
Case Name: Hale v. Emporia State University, Case No. 16-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 56524 (D. Kansas April 3, 2018)
(analyzing the crime-fraud exception in connection with a University's racial discrimination internal investigation; affirming the Magistrate Judge's decision refusing to apply the crime-fraud exception to the attorney-client privilege; noting among other things that the Magistrate Judge properly applied Kansas law in analyzing the exception; "And she [Judge] applied federal common law to define the scope of the privilege and the crime-fraud exception. . . . Judge James then determined that plaintiff's allegations failed to make a prima facie showing of fraud to invoke the crime-fraud exception. Judge James cited Kansas law when she identified the elements of fraud. . . . This approach makes sense because, to determine whether the facts establish a prima facie showing that defendant had committed a crime or fraud sufficient to support the crime-fraud exception under federal common law, the court may apply the forum's law governing the alleged crime or fraud."; "Judge James had erred by using Kansas law as a point of reference, federal common law defines fraud using the same elements as Kansas law.")

Case Date Jurisdiction State Cite Checked
2018-04-03 Federal KS

Chapter: 18.303
Case Name: United States v. Buckingham, Case No. RWT 13-cv-3227, 2018 U.S. Dist. LEXIS 40659 (D. Md. March 13, 2018)
(finding it unnecessary to decide if a fraudulent conveyance claim can trigger the crime-fraud exception; finding that the plaintiff had not shown enough ill intent to apply the crime-fraud exception; "Although the transfers at issue here may include badges of fraud other than 'deception, dishonesty, misrepresentation, falsification, or forgery,' as United Bank claims, the presence of any particular indicia of fraud, or any particular combination of such, is not dispositive. . . . It is the court's duty to consider all of the circumstances in determining whether a sufficient showing of intent has been made. . . . Under the circumstances presented here, Judge Sullivan was well within reason to find that United Bank failed to make out a prima facie showing of wrongful intent in relation to the conveyances at issue in this case.")

Case Date Jurisdiction State Cite Checked
2018-03-13 Federal MD

Chapter: 18.303
Case Name: United States v. Gorski, Nos. 14-1963, 14-1964, 14-2074, 2015 U.S. App. LEXIS 21302 (1st Cir. App. Dec. 9, 2015)
(analyzing interlocutory appeals and the crime-fraud exception; concluding the individual defendant cannot pursue an interlocutory appeal, but that a non-party could rely on the Perlman doctrine; finding that the crime-fraud exception applied to communications to and from Mintz Levin, and remanding for the trial court's review of certain documents to determine if the exception applied to them; "[T]he district court recognized that Gorski's intent with regard to Schwartz was arguably the same as his intent with regard to Mintz Levin: to perpetuate an ongoing scheme to conceal the true ownership and control of Legion over a five-year time period. The fact that Schwartz was not actually involved in the submission of documents in the bid protest or otherwise has no necessary bearing on either of those two points. Further, Schwartz predated Mintz Levin as counsel advising Gorski on Legion. The government alleges there was an earlier part of an ongoing fraud. Gorski did indeed ask her for ideas on how to 'financially benefit from [his] efforts' despite the nominal restructuring and his concerns about no longer being the 'primary shareholder' despite shouldering the 'balance of responsibilities' after the restructuring.")

Case Date Jurisdiction State Cite Checked
2015-12-09 Federal MA

Chapter: 18.303
Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. No. 2:06-cv-1797, 2014 U.S. Dist. LEXIS 2344, at *18 (E.D. Pa. Jan. 9, 2014)
(analyzing the crime-fraud exception; "To satisfy the first element of the exception, the movant must show common law fraud. . . . This requires (1) misrepresentation or omission of a material fact, (2) an intent to deceive, (3) justifiable reliance by the party deceived, and (4) injury to the party deceived.")

Case Date Jurisdiction State Cite Checked
2014-01-09 Federal PA B 6/14

Chapter: 18.303
Case Name: Peerless Indus., Inc. v. Crimson AV LLC, Case No. 11 C 1768, 2013 U.S. Dist. LEXIS 162148, at *13, *17 (N.D. Ill. Nov. 14, 2013)
("Some courts have recognized that committing 'fraud on the court' is grounds to apply the crime-fraud exception."; "[I]t was reasonable for Judge Cox to conclude that there was insufficient evidence to find that a reasonable person would have a good faith belief that an in camera inspection might uncover evidence of a crime or fraud.")

Case Date Jurisdiction State Cite Checked
2013-11-14 Federal IL B 5/14

Chapter: 18.303
Case Name: Truck Ins. Exch. v. Superior Court, No. A137420, 2013 Cal App. Unpub. LEXIS 5487, at *17 18 (Cal. Ct. App. July 31, 2013)
(granting an interlocutory appeal in state court; "[I]n the absence of any showing that Golden State [defendant] was deceived by the filing of the recovery actions, it failed to meet its burden of demonstrating a prima facie showing of fraud sufficient to invoke the crime-fraud exception to the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-07-31 State CA B 4/14

Chapter: 18.303
Case Name: In the Matter of New York City Asbestos Litig.: Weitz & Luxenberg P.C. v. Georgia-Pacific LLC, 40000/88,9535, 109 A.D. 3d 7, 966 N.Y.S. 2d 420, 2013 N.Y. App. Div. LEXIS 4036 (N.Y. Sup. Ct. 1d June 6, 2013)
(concluding that plaintiffs could satisfy the first step of the crime-fraud standard, and therefore ordering in camera review of defendant Georgia-Pacific's communications expert involved in authoring favorable articles; "GP funded these studies in 2005 to aid in its defense of asbestos-related lawsuits. The studies were performed by experts from various organizations, who, among other things, recreated GP's historical joint compound product for the purpose of testing its biopersistence and pathogenicity. To facilitate the endeavor, GP entered into a special employment relationship with Stewart Holm, its Director of Toxicology and Chemical Management, to perform expert consulting services under the auspices of its in-house counsel, who also was significantly involved in the prepublication review process."; "Holm coauthored nearly all of the studies, which were intended to cast doubt on the capability of chrysotile asbestos to cause cancer. On the two articles that he did not coauthor, he and GP's counsel participated in lengthy 'WebEx conferences" in which they discussed the manuscripts and suggested revisions. Despite this extensive participation, none of the articles disclosed that GP's in-house counsel had reviewed the manuscripts before they were submitted for publication."; "The foregoing constitutes a sufficient factual basis for a find that the relevant communications could have been in furtherance of a fraud, and the motion court properly confirmed the recommendation directing in camera review of the internal documents.")

Case Date Jurisdiction State Cite Checked
2013-06-06 State NY

Chapter: 18.303
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *23 (E.D. Va. Dec. 3, 2012)
("The Government is not required to prove Moazzeni's alleged crimes beyond a reasonable doubt, by clear and convincing evidence, or even by a preponderance of the evidence. In re Grand Jury Proceedings #5, 401 F.3d at 251. Rather, it is sufficient that the Government makes a prima facie showing that a fraudulent scheme was afoot and that the otherwise privileged documents relate to the fraud. Id."; "Here, the criminal activity is a scheme to defraud creditors by hiding assets; the means of accomplishing this feat were non-disclosure of Moazzeni's interest in the subject assets. By Moazzeni's design, the bankruptcy schedules prepared by Mahmoud omitted these assets, thereby using The Jernigan Law Firm to perpetrate a fraud. Thus, each of the documents related to the preparation, filing, and consequences of those inaccurate schedules falls within the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA

Chapter: 18.303
Case Name: Confidential Informant 59-05071 v. United States, 108 Fed. Cl. 121, 130 (Fed. Cl. 2012)
(requiring the government to provide more details on the privilege log; "To make a prima facie showing of fraud, the party invoking the exception must allege facts sufficient to support a finding that it justifiably relied on a misrepresentation by the party asserting attorney-client privilege, that such misrepresentation was material and made with intent to deceive, and that the party invoking the exception suffered injury as a result of his actions in reliance on the misrepresentation.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal Other B 9/13

Chapter: 18.303
Case Name: Webb v. Joiner, Case No. CL03-312, 2006 Va. Cir. LEXIS 241 (Roanoke Cty., Va. Cir. Ct. July 17, 2006)
(finding the crime-fraud exception applicable to documents which contradict earlier testimony; "A confidential communication made by a client to his attorney under any of these protections is privileged from disclosure provided it is not made in perpetration of a fraud."; "In this case, defendant physician's testimony at his deposition concerning matters surrounding the alleged malpractice was different from the actions he described in the handwritten memo to his insurance carrier. The obvious conclusion is that the defendant physician either made, or appeared to have made, a material misrepresentation of fact with intent to mislead. The making, or just the appearance of making, an intentional misrepresentation with intent to mislead, during or in contemplation of litigation, is not protected by the rules regarding privileged communications or the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2006-07-17 State VA

Chapter: 18.303
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 279 (E.D. Va. 2004)
("[U]nder Virginia law, mere silence or the withholding of information does not constitute fraud in the absence of a duty to disclose. Id. (citing Bank of Montreal v. Signet Bank, 193 F.3d 818, 826 (4th Cir. 1999); ITT Hartford Group, Inc. v. Virginia Fin. Assocs., Inc., 258 Va. 193, 203, 520 S.E.2d 355, 361 (1999)).")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 18.303
Case Name: Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 141-42, 413 S.E.2d 630, 638-39 (Va. 1992)
(applying the crime-fraud exception based on fraud upon another court)

Case Date Jurisdiction State Cite Checked
1992-01-01 State VA

Chapter: 18.303
Case Name: Seventh Dist. Comm. of the Va. State Bar v. Gunter, 212 Va. 278, 287, 183 S.E.2d 713, 719 (Va. 1971)
("[T]here is a wide difference between doing, conspiring and contriving a wrong and in seeking counsel after the wrong is done. The protection which the law affords to communications between attorney and client has reference to those which are legitimately and properly within the scope of a lawful employment and does not extend to communications made in contemplation of a crime, or perpetration of a fraud. If the client does not frankly and freely reveal his object and intention as well as facts, there is not professional confidence and therefore no privilege. The rule of privilege is defensive, not offensive. If the communication between attorney and client relates to unlawful or fraudulent accomplishment, higher public policy, and the duty of an attorney to society as a whole, abrogates the privilege. If the client does not disclose his fraudulent purpose there is no confidential relationship established, and no attaching privilege." (citations omitted); finding that the attorney-client privilege did not protect communications between the defendant lawyer and his lawyers about how to defraud the disciplinary Committee)

Case Date Jurisdiction State Cite Checked
1971-01-01 State VA

Chapter: 18.304
Case Name: Kenyon & Kenyon LLP v. Sightsound Tech., LLC, 650795/2014, 2018 N.Y. Misc. LEXIS 2511 (N.Y. Sup. Ct. June 21, 2018)
("[T]he crime-fraud exception forces disclosure of communications involving fraudulent schemes, alleged breaches of fiduciary duty, or accusations of other wrongful conduct. . . . A party seeking to compel disclosure based on the crime-fraud exception must establish 'a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime' (id). The Firm has established neither."; "The facts alleged fail to establish probable cause that GE engaged in conversations to either commit or further a fraud on the Firm. . . . GE merely exercised its contractual discretion, as approved by the court.")

Case Date Jurisdiction State Cite Checked
2018-06-21 State NY
Comment:

key case


Chapter: 18.304
Case Name: United States v. Buckingham, Case No. RWT 13-cv-3227, 2018 U.S. Dist. LEXIS 40659 (D. Md. March 13, 2018)
(finding it unnecessary to decide if a fraudulent conveyance claim can trigger the crime-fraud exception; finding that the plaintiff had not shown enough ill intent to apply the crime-fraud exception; "The Court of Appeals of Maryland has not yet decided whether conveyances deemed to be fraudulent under the MUFCA constitute 'fraud' sufficient to trigger the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2018-03-13 Federal MD

Chapter: 18.304
Case Name: In re Bair Hugger Force Air Warming Devices Prods. Liability Litig., MDL No. 15-2666 (JNE/FLN), 2017 U.S. Dist. LEXIS 141023 (D. Minn. Aug. 30, 2017)
(finding the crime-fraud exception inapplicable; "The Memorandum finds that, at most, counsel paid an unreasonable amount to fact witnesses and that they should have known better. . . . The Memorandum does not cite binding authority that would have alerted counsel about an unreasonable-payment danger zone. . . . The analysis of reasonableness is unexpectedly narrow. The Memorandum considers only the witnesses' direct or monetary losses like 'loss of income,' 'unpaid salaries,' and time spent away from work. . . . Indirect or subjective losses could have also been applied, like loss of leisure time or distaste for testifying. No context is provided as to what a standard witness would have been paid, whether standard in the industry, for this kind of witness, or in this type of litigation."; "From these facts, the Court cannot infer that Defendants' then-counsel '[k]nowingly deliver[ed] grossly excessive payments' by writing the Documents. . . . Having not knowingly corrupted witnesses, Defendants' then-counsel could not have written the Documents to encourage it.'"; "Because Plaintiffs make no showing that Defendants' then-counsel wrote the documents to encourage a crime, the Court thus does not reach the issue of how much the requesting party must show to entitle it to in camera review for crime-fraud.")

Case Date Jurisdiction State Cite Checked
2017-08-30 Federal MN

Chapter: 18.304
Case Name: In re Animation Workers Antitrust Litigation, Case No. 5:14-cv-04062-LHK, 2016 U.S. Dist. LEXIS 44154 (N.D. Cal. March 30, 2016)
(finding the crime-fraud exception inapplicable, but noting that a civil antitrust violation could trigger the exception under different circumstances; "[W]hile the Ninth Circuit has yet to consider the question, every other circuit that has done so has concluded that the crime fraud exception can apply in the context of a civil antitrust suit. It also is true, as Plaintiffs note, that the Department of Justice investigated and sued Pixar for a Section 1 violation on these same facts. But that case was settled without any admission by Pixar or adjudication of any violation of law.")

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal CA

Chapter: 18.304
Case Name: In re Grand Jury Subpoena v. United States, No. 15-4080, 2016 U.S. App. LEXIS 5381 (4th Cir. App. March 23, 2016)
(analyzing the crime-fraud exception; "'This Circuit is not alone in holding that communications aimed at concealing a criminal or fraudulent scheme obliterate the privilege.'"; "With this framework in mind, we have reviewed the particulars of this case and determined that the district court did not clearly err in determining that the government successfully made a prima facie showing that the Traders engaged in a criminal or fraudulent scheme of misusing information about impending trades for personal gain. The district court's determination that the Traders intended to avoid detection and continue their scheme in communicating with Lawyer, not least by having Lawyer misrepresent their activities to the regulator, is likewise supported by the record."; "The Traders repeatedly argue that nothing 'in the record' supports the district court's determination here. . . . The Traders claim, for example, that 'the Government lacks evidence' to support the crime-fraud exception and thus attempts to 'fall[] back on the communications themselves' to make the necessary showing. But the Traders, who were, by definition, excluded from the grand jury proceedings and thus not privy to what evidence or theories the complete record contains, see Fed. R. Crim. P. 6, are tilting at windmills.")

Case Date Jurisdiction State Cite Checked
2016-03-23 Federal

Chapter: 18.304
Case Name: Lewis v. Delta Air Lines, Inc., Case No. 2:14-cv-01683-RFB-GWF, 2015 U.S. Dist. LEXIS 171797 (D. Nev. Dec. 23, 2015)
(analyzing the crime-fraud exception; "Other courts have followed Koch [Koch v. Specialized Care Services, Inc., 437 F.Supp.2d 362 (D.Md. 2005)] in holding that the crime-fraud exception is not strictly limited to cases alleging criminal violations or common law fraud.")

Case Date Jurisdiction State Cite Checked
2015-12-23 Federal NV

Chapter: 18.304
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015)
(finding the crime-fraud exception inapplicable because the ignition switch plaintiffs could not establish that the King & Spalding communications furthered any alleged General Motors wrongdoing; "At bottom, the record may well support a conclusion that New GM and K&S played it too close to the vest in the Melton [underlying ignition switch case] case -- by, for example, construing the concept of relevance too narrowly and thus withholding documents and materials that should have been turned over (or turned over earlier) to the Meltons. But that is the stuff that ordinary (albeit perhaps overly aggressive) litigation is made of, which can and should be addressed by sanctions in the same case, not the stuff that crimes and frauds are made of, which can and should result in the wholesale disclosure later of all attorney-client communications and attorney work product. . . . Not surprisingly, therefore, it falls far short of the sort of calculated and purposeful litigation misconduct that has led courts in other cases to apply the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2015-11-25 Federal NY
Comment:

key case


Chapter: 18.304
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015)
(finding the crime-fraud exception inapplicable because the ignition switch plaintiffs could not establish that the King & Spalding communications furthered any alleged General Motors wrongdoing; "[T]he Second Circuit has not addressed what kinds of 'crime' or 'fraud' are sufficient to trigger the exception or the level of detail with which the crime or fraud must be alleged. . . . District courts within the Circuit, however, have applied the exception beyond patently criminal or fraudulent activity to non-fraud intentional torts. . . . Additionally, some courts have held that 'misconduct fundamentally inconsistent with the basic premises of the adversary system,' such as 'bad faith litigation conduct,' falls within the scope of the exception.")

Case Date Jurisdiction State Cite Checked
2015-11-25 Federal NY

Chapter: 18.304
Case Name: In re Grand Jury Subpoenas Dated March 2, 2015, 15-1976, 2015 U.S. App. LEXIS 17633 (2nd Cir. App. Oct. 6, 2015)
("A party wishing to invoke the exception must prove (1) 'that the client communication or attorney work product in question was itself in furtherance of the crime or fraud' and (2) 'probable cause to believe that the particular communication with counsel or attorney work product was intended in some way to facilitate or to conceal the criminal activity.'. . . But '[w]here the very act of litigating is alleged as being in furtherance of a fraud,' we adopt a more stringent probable cause standard, that is, 'the party seeking disclosure . . . must show probable cause that the litigation or an aspect thereof had little or no legal or factual basis and was carried on substantially for the purpose of furthering the crime or fraud.'")

Case Date Jurisdiction State Cite Checked
2015-10-06 Federal

Chapter: 18.304
Case Name: Irving Oil Ltd. v. ACE INA Ins., BCD-CV-09-35, 2015 Me. Super. LEXIS 72 (Me. April 18, 2015)
("The court also declines to extend the crime/fraud exception to the attorney-client privilege to encompass violations of the Unfair Claims Settlement Practices Act where only probable cause of said violations exists."; "Even assuming for purposes of argument, that the tort of an unfair claims settlement practice during claim processing and/or effectuating settlements is sufficient to warrant applying the crime/fraud exception, the court finds that the Plaintiffs nevertheless fail to show that ACE sought the assistance or advice of counsel 'in furtherance of a crime or fraud.'. . . Under Maine law, the Plaintiffs must show, by a preponderance of the evidence, that ACE consulted counsel 'in furtherance of a crime or fraud.'")

Case Date Jurisdiction State Cite Checked
2015-04-18 State ME

Chapter: 18.304
Case Name: Apple Inc. v. Samsung Electronics Co., Ltd., Case No.: 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386 (N.D. Cal. April 3, 2015)
(analyzing the effect of Samsung's defense of admitted disclosure of confidential information about non-party Nokia; "'Apple also argues the crime-fraud exception applies to the seven offered documents it seeks to compel. The crime-fraud exception bars a party from maintaining privilege over attorney-client communications that are 'sufficiently related to' or 'in furtherance' of an unlawful act. . . . There is precedent, at least in other circuits, holding that violations of a protective order are akin to law breaking such that communications giving rise to protective order violations fall within the crime-fraud exception. . . . This court need not resolve that question here.'")

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal CA

Chapter: 18.304
Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. No. 2:06-cv-1797, 2014 U.S. Dist. LEXIS 2344, at *22 (E.D. Pa. Jan. 9, 2014)
(analyzing the crime-fraud exception; "[T]he Direct Purchasers' [plaintiffs] categorical approach offers no way of distinguishing between communications made in furtherance of future fraud (if they exist), and those that legitimately relate to the patent prosecution. Accordingly, we conclude that the Direct Purchasers have fallen far short of meeting their burden of demonstrating a reasonable basis to conclude that particular communications were made in furtherance of the fraud they allege.")

Case Date Jurisdiction State Cite Checked
2014-01-09 Federal PA B 6/14

Chapter: 18.304
Case Name: Safety Today, Inc. v. Roy, Case No. 2:12-cv-510, 2013 U.S. Dist. LEXIS 147765, at *15 (S.D. Ohio Oct. 11, 2013)
November 20, 2013 (PRIVILEGE POINT)

"Is the "Crime-Fraud Exception" Limited to Crimes and Frauds?"

Under what courts call the "crime-fraud exception" to the attorney-client privilege, the privilege does not protect communications between clients and their lawyers which further client wrongdoing. Courts agree that the exception applies to crimes and traditional common law intentional fraud.

Some courts apply the exception more broadly. In Safety Today, Inc. v. Roy, Case No. 2:12-cv-510, 2013 U.S. Dist. LEXIS 147765, at *15 (S.D. Ohio Oct. 11, 2013), the court acknowledged "that there is a split of authority on whether the exception should be expanded beyond actual crimes or frauds to other intentional tortious conduct." The court ultimately concluded that under Ohio law the exception could apply to "wrongful conduct not strictly falling into the category of either crimes or frauds," but which involve "similar elements of malicious or injurious intent and deliberate falsehood." Id. At *16. The court then specifically found that the exception could apply to "alleged tortious interference of a contract or business relations, which is a species of intentional tort under Ohio law." Id. At *17.

Given the uncertainty of some courts' application of the crime-fraud exception, lawyers should remember that a court might order disclosure of communications that otherwise satisfy all of the attorney-client privilege's elements. Significantly, the crime-fraud exception can strip away privilege protection despite the lawyer's innocence – because the exception rests on clients' rather than lawyers' wrongful intent.

Case Date Jurisdiction State Cite Checked
2013-10-11 Federal OH
Comment:

key case


Chapter: 18.304
Case Name: Safety Today, Inc. v. Roy, Case No. 2:12-cv-510, 2013 U.S. Dist. LEXIS 147765, at *15 16, *16 17, *17 18, *21 22 (S.D. Ohio Oct. 11, 2013)
(finding that tortious interference claims can fall under the crime-fraud exception; "The Koch [Koch v. Specialized Care Servs., Inc., 437 F. Supp. 2d 362 (D. Md. 2005)] decision, especially in its treatment of the Restatement (Third) Law Governing Law [sic] §82 cmt. d., candidly acknowledged that there is a split of authority on whether the exception should be expanded beyond actual crimes or frauds to other intentional tortious conduct, and that the Restatement points out that formulating a broad rule about what additional types of conduct should be included is a difficult task."; "For essentially the same reasons set forth in Koch, this Court concludes that Ohio courts have, and will continue to, analyze wrongful conduct not strictly falling into the category of either crimes or frauds on a case-by-case basis to determine if the conduct involves similar elements of malicious or injurious intent and deliberate falsehood. If it does, there is no reason why the law should prevent disclosure of the role an attorney may have played in assisting his or her client to commit that type of act, which itself has no social value."; "Here, defendants have alleged tortious interference with contract or business relations, which is a species of intentional tort under Ohio law. . . . The Court has little difficulty in concluding that the conduct alleged (which, of course, Safety Today disputes) is sufficiently akin to fraud to permit the Court to explore further the applicability of the crime-fraud exception."; "At this point, all the Court has decided is that a species of intentional tortious conduct involving intentional misrepresentations has been identified; that there is some credible evidence to support the claim; and that the communications at issue were made at a time and in such a manner as to permit an inference that they had the effect of furthering the conduct at issue. That is enough to allow for an in camera review of the documents, and that is what the Court orders.")

Case Date Jurisdiction State Cite Checked
2013-10-11 Federal OH B 5/14

Chapter: 18.304
Case Name: Safety Today, Inc. v. Roy, Case No. 2:12-cv-510, 2013 U.S. Dist. LEXIS 147765, at **19, *20 (S.D. Ohio Oct. 11, 2013)
(finding that tortious interference claims can fall under the crime-fraud exception; "Proof by even a preponderance of the evidence is not needed; rather, the requesting party's burden is satisfied by showing that there is a 'reasonable basis' for the privilege challenger's claim." (citation omitted); "[T]here is at least prima facie evidence to support their claim. The wording used in the letter can be read as a misstatement of Judge Watson's order, and the identity of the recipients, the letter's strong suggestion that the defendants were engaged in either illegal or unethical conduct, and Safety Today's tracking of the responses permits an inference that it was Safety Today's intent to make it harder for defendants to compete with Safety Today. That is a sufficient showing to justify at least an in camera review of the withheld documents.")

Case Date Jurisdiction State Cite Checked
2013-10-11 Federal OH B 5/14

Chapter: 18.304
Case Name: Truck Ins. Exch. v. Superior Court, No. A137420, 2013 Cal App. Unpub. LEXIS 5487, at *17 (Cal. Ct. App. July 31, 2013)
(granting an interlocutory appeal in state court; "Golden State [defendant] contends petitioners' prosecution of the recovery actions constituted 'criminal deceit.' We disagree. Standing alone, the prosecution of a lawsuit, malicious or not, is neither a crime nor deceit.")

Case Date Jurisdiction State Cite Checked
2013-07-31 State CA B 4/14

Chapter: 18.304
Case Name: Confidential Informant 59-05071 v. United States, 108 Fed. Cl. 121, 130 (Fed. Cl. 2012)
(requiring the government to provide more details on the privilege log; "The United States Court of Appeals for the Federal Circuit has indicated that the crime-fraud exception is broad enough to encompass documents that are 'incident' to alleged 'fundamental misconduct.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal Other B 9/13

Chapter: 18.304
Case Name: Flexible Benefits Council v. Feldman, No. 1:08cv371 (JCC), 2008 U.S. Dist. LEXIS 79226, at *13 (E.D. Va. Oct. 8, 2008)
("In the Fourth Circuit, this exception also applies to tortious conduct. United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).")

Case Date Jurisdiction State Cite Checked
2008-10-08 Federal VA B 3/16

Chapter: 18.304
Case Name: Webb v. Joiner, Case No. CL03-312, 2006 Va. Cir. LEXIS 241 (Roanoke Cty., Va. Cir. Ct. July 17, 2006)
(finding the crime-fraud exception applicable to documents which contradict earlier testimony; "A confidential communication made by a client to his attorney under any of these protections is privileged from disclosure provided it is not made in perpetration of a fraud."; "In this case, defendant physician's testimony at his deposition concerning matters surrounding the alleged malpractice was different from the actions he described in the handwritten memo to his insurance carrier. The obvious conclusion is that the defendant physician either made, or appeared to have made, a material misrepresentation of fact with intent to mislead. The making, or just the appearance of making, an intentional misrepresentation with intent to mislead, during or in contemplation of litigation, is not protected by the rules regarding privileged communications or the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2006-07-17 State VA

Chapter: 18.304
Case Name: Webb v. Joiner, 71 Va. Cir. 254, 255 (Va. Cir. Ct. 2006)
(assessing defendant doctor's motion seeking the return of a handwritten memorandum prepared by the doctor and included in the plaintiff's medical record, which was made available to the plaintiff; noting the doctor claimed that the attorney-client privilege protected the memorandum, that it was accidentally produced and should be returned; assuming without deciding that the attorney-client privilege covered the memorandum, and noting that the work product doctrine also covered the memorandum; nevertheless declining to order its return, because of the crime-fraud exception; "In this case, defendant physician's testimony at his deposition concerning matters surrounding the alleged malpractice was different from the actions he described in the handwritten memo to his insurance carrier. The obvious conclusion is that the defendant physician either made, or appeared to have made, a material misrepresentation of fact with intent to mislead. The making, or just the appearance of making, an intentional misrepresentation with intent to mislead, during or in contemplation of litigation, is not protected by the rules regarding privileged communications or the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2006-01-01 State VA B 3/08

Chapter: 18.304
Case Name: Galaxy CSI, LLC v. Galaxy Computer Servs., Inc. (In re Galaxy Computer Servs., Inc.), Civ. A. No. 04-07-A, 2004 U.S. Dist. LEXIS 28162, at *5-6 (E.D. Va. Mar. 31, 2004)
("The crime/fraud exception has been applied to reach both fraudulent transfers in the bankruptcy context and breaches of fiduciary duty. [In re] Andrews, 186 B.R. [219,] 222 [Bankr. E.D. Va. 1995)]; Fausek v. White, 965 F.2d 126, 133 (6th Cir. 1992). . . . [I]n the instant case, the allegations in the complaint are not just of isolated misrepresentations, but of an extensively planned course of dealing to collude with a competitor and clandestinely transfer assets from the parent company, through transactions structured with the advice of counsel. Such allegations of fraudulent transfer and fraud by the subsidiary's directors on the parent corporation are sufficient allegations of fraud in a bankruptcy case to invoke the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2004-03-31 Federal VA B3/16
Comment:

key case


Chapter: 18.304
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 283 (E.D. Va. 2004)
("[T]he crime/fraud exception extends to materials or communication, created for planning, or in furtherance of, spoliation. Cf. Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590-91 (4th Cir. 2001)")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA B 3/16

Chapter: 18.304
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 283 (E.D. Va. 2004)
("It is self-evident, however, that any communication between lawyer and client respecting spoliation is fundamentally inconsistent with the asserted principles behind the recognition of the attorney-client privilege, namely, 'observance of law' or the 'administration of justice.' Weintraub, 471 U.S. at 348.")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 18.304
Case Name: Rambus, Inc. v. Infineon Techs. AG, 222 F.R.D. 280, 288, 288-89, 289, 290 (E.D. Va. 2004)
("Although the United States Court of Appeals for the Fourth Circuit has not set forth a precise test for application of the crime/fraud exception in cases of spoliation, it is inconceivable that our Court of Appeals would find that a client's interest in confidential communications and work product respecting destruction of documents in anticipation of litigation would outweigh the societal need to assure the integrity of the process by which litigation is conducted which, of course, is the purpose of prohibiting spoliation of evidence. Silvestri, 271 F.3d at 590 (footnote omitted) . . . . other courts, when confronted with a variety of untoward conduct, have concluded that the exception is not confined to circumstances of crime or fraud. . . . construing the crime/fraud exception to encompass spoliation is fully consonant with the Fourth Circuit's instructions on how to apply the underlying privileges. . . . For the foregoing reasons, the crime/fraud exception extends to materials or communications created in planning, or in furtherance of, spoliation of evidence.")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA
Comment:

key case


Chapter: 18.304
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 283 (E.D. Va. 2004)
(applying what the court called the "crime/fraud/tort exception" to documents spoliation, even though it is "not a crime nor is it fraud"; holding that "the crime/fraud exception extends to materials or communication, created for planning or in furtherance of, spoliation")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA B 3/16

Chapter: 18.304
Case Name: Sevachko v. Commonwealth, 35 Va. App. 346, 356, 357-58 (2001)
(assessing a privilege claim for statements a criminal defendant made to his lawyer; holding "that Sevachko's disclosure to his attorney that he was driving on the date of the charged offense was made in relation to and during the course of the attorney's representation of her client and that the communication was confidential and privileged and not subject to disclosure. See [Commonwealth v.] Edwards, 235 Va. [499,] 508-09, 370 S.E.2d [296,] 301 [(Va. 1998)]. However, we hold that Sevachko's disclosure to his attorney that he was going to testify untruthfully that he was not driving was not privileged, and, thus, the statement was admissible under the crime-fraud exception to the privilege."; "Here, Sevachko's disclosure to his attorney regarding his intent to commit perjury was made prior to trial and in contemplation of committing perjury and a fraud upon the court. The privilege does not permit a litigant to commit a fraud upon a court and, therefore, to that end, the privilege does not apply to communications, which if not revealed would hamper the administration of justice. See [Seventh Dist. Comm. v.] Gunter, 212 Va. [278,] 287-88, 183 S.E.2d [713,] 719 [(Va. 1971)]. Accordingly, the attorney-client privilege did not attach to Sevachko's statement to his attorney pertaining to his intent to commit perjury; therefore, the statement was admissible in the perjury prosecution.")

Case Date Jurisdiction State Cite Checked
2001-01-01 State VA B 3/16
Comment:

key case


Chapter: 18.304
Case Name: Patel v. Allison, 54 Va. Cir. 155 (Va. Cir. Ct. 2000)
(applying crime-fraud exception to a disbarred lawyer's admittedly false discovery responses and deposition testimony, and ordering production of underlying information over the objection of the lawyer's former client)

Case Date Jurisdiction State Cite Checked
2000-01-01 State VA

Chapter: 18.304
Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1306 n.15 (E.D. Va. 1992)
(analyzing a lawsuit in which an in-house lawyer alleged wrongful termination; "Under the exception to the privilege commonly known as the 'crime-fraud exception,' communications made for an unlawful purpose or to further an illegal scheme are not privileged."; ultimately concluding that the employee was entitled to a preliminary injunction preventing the in-house lawyer plaintiff from disclosing confidential information beyond his own lawyer, but refusing to order the plaintiff to return documents that he had taken when he left his employment; the Fourth Circuit ultimately upheld a permanent injunction prohibiting the in-house lawyer from disclosing confidential communication, Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143, 17 F.3d 1435 (4th Cir. Feb. 23, 1994) (unpublished opinion))

Case Date Jurisdiction State Cite Checked
1992-01-01 Federal VA N 3/10; 4/10
Comment:

key case


Chapter: 18.306
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 831, 830 (E.D. Va. 2005)
(holding that the crime-fraud exception applied to communications between a jailed inmate and his lawyer, because "there can be little doubt that Lentz [jailed inmate], in contacting Mr. Salvato [lawyer], was seeking aid and information from his attorney to further his nascent murder-for-hire plot"; "[A]dvice in furtherance of such goals is anathema to our system of justice; hence, a client's communications seeking such advice are not worthy of protection. It is immaterial whether the attorney knew that the client was seeking his advice for illegal purposes or whether the attorney joined in, or, as here, counseled against the illegal activity. The attorney's knowledge and intent are not material to the operation of the crime fraud exception; only the client's knowledge and intent are material in this regard. It is similarly immaterial whether the defendant actually succeeded in completing the crime or fraud in question; rather, solicitation alone triggers the exception." (footnotes omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal VA

Chapter: 18.306
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 831, 830 (E.D. Va. 2005)
("[A]dvice in furtherance of such goals is anathema to our system of justice; hence, a client's communications seeking such advice are not worthy of protection. It is immaterial whether the attorney knew that the client was seeking his advice for illegal purposes or whether the attorney joined in, or, as here, counseled against the illegal activity. The attorney's knowledge and intent are not material to the operation of the crime fraud exception; only the client's knowledge and intent are material in this regard. It is similarly immaterial whether the defendant actually succeeded in completing the crime or fraud in question; rather, solicitation alone triggers the exception. In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1039 (2d Cir. 1984)" (footnotes omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal VA

Chapter: 18.306
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 279 (E.D. Va. 2004)
(finding application of the crime/fraud exception despite Rambus' argument that it did not consummate the alleged fraudulent conduct; "Actual success as to the fraudulent or criminal scheme, however, is immaterial to the application of the crime/fraud exception. In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1039 (2d. Cir. 1984)")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 18.306
Case Name: Sevachko v. Commonwealth, 35 Va. App. 346, 356, 357-58 (2001)
(assessing a privilege claim for statements a criminal defendant made to his lawyer; holding "that Sevachko's disclosure to his attorney that he was driving on the date of the charged offense was made in relation to and during the course of the attorney's representation of her client and that the communication was confidential and privileged and not subject to disclosure. See Edwards, 235 Va. at 508-09, 370 S.E.2d at 301. However, we hold that Sevachko's disclosure to his attorney that he was going to testify untruthfully that he was not driving was not privileged, and, thus, the statement was admissible under the crime-fraud exception to the privilege."; "Here, Sevachko's disclosure to his attorney regarding his intent to commit perjury was made prior to trial and in contemplation of committing perjury and a fraud upon the court. The privilege does not permit a litigant to commit a fraud upon a court and, therefore, to that end, the privilege does not apply to communications, which if not revealed would hamper the administration of justice. See Gunter, 212 Va. at 287-88, 183 S.E.2d at 719. Accordingly, the attorney-client privilege did not attach to Sevachko's statement to his attorney pertaining to his intent to commit perjury; therefore, the statement was admissible in the perjury prosecution.")

Case Date Jurisdiction State Cite Checked
2001-01-01 State VA

Chapter: 18.307
Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1307 (E.D. Va. 1992)
(analyzing a lawsuit in which an in-house lawyer alleged wrongful termination; "But the privilege may also be overcome even in circumstances where the attorney is not consulted for the purpose of furthering a crime or fraudulent scheme. Thus, the privilege cannot be used as a shield to preclude disclosure of information concerning an ongoing or future crime or fraud collaterally learned by a lawyer during the course of his representation."; ultimately concluding that the employee was entitled to a preliminary injunction preventing the in-house lawyer plaintiff from disclosing confidential information beyond his own lawyer, but refusing to order the plaintiff to return documents that he had taken when he left his employment; the Fourth Circuit ultimately upheld a permanent injunction prohibiting the in-house lawyer from disclosing confidential communication, Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143, 17 F.3d 1435 (4th Cir. Feb. 23, 1994) (unpublished opinion))

Case Date Jurisdiction State Cite Checked
1992-01-01 Federal VA N 3/10

Chapter: 18.401
Case Name: FTC v. Adept Management, Civ. No. 1:16-cv-00720-CL, 2018 U.S. Dist. LEXIS 111673 (D. Ore. July 3, 2018)
("The moving defendants are attempting to invoke the crime-fraud exception to the attorney client privilege. In the Ninth Circuit, '[a] party seeking to vitiate the attorney-client privilege under the crime-fraud exception must satisfy a two-part test.'. . . 'First, the party must show that 'the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme.' 'Second, it must demonstrate that the attorney-client communications for which production is sought are 'sufficiently related to' and were made ' in furtherance of [the] intended, or present, continuing illegality.' Id. (alterations in original) . . . . The burden of proof is preponderance of the evidence."; "The Court is not, in any event, persuaded that the Simpson Defendants have established a prima facie showing that the crime-fraud exception should apply in this case.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal OR

Chapter: 18.401
Case Name: In re Grand Jury Subpoena Dated March 20, 2013, 13-Mc189 (Part I) 2014 U.S. Dis. LEXIS 91901, *27 (S.D.N.Y. July 2, 2014)
("Neither the attorney-client privilege nor the work product doctrine will shield communications made in furtherance of a crime or fraud.")

Case Date Jurisdiction State Cite Checked
2014-07-02 Federal NY

Chapter: 18.402
Case Name: Adidas America, Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2018 U.S. Dist. LEXIS 164159 (D. Ore. Sept. 25, 2018)
(finding the crime-fraud exception applicable; inexplicably ordering production of a category of documents rather than analyzing the documents one at a time; "Plaintiffs argue that the Court should only consider the intent of the declarant (outside counsel), or possibly the person responsible for the filing and who directed outside counsel . . . the 'registrant' here is Reebok. Further, from a policy standpoint, it makes little sense to consider only the signatory's knowledge and intent. Under Plaintiffs' approach, a registrant could engage in fraudulent conduct but keep outside counsel in the dark, and would then be able to engage in fraud on the PTO with impunity. The Court thus considers Reebok's knowledge and intent, not just outside counsel's or Ms. Han's.")

Case Date Jurisdiction State Cite Checked
2018-09-25 Federal OR

Chapter: 18.402
Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 688, 689 (3d Cir. 2014)
(analyzing the crime-fraud exception; assessing whether the court could conduct an in camera review of the withheld documents; "[I]n camera examination of a witness implicates different concerns than examination of documents or recordings, so we must determine whether we should adopt the Zolin [United States v. Zolin, 481 U.S. 554 (1989)] standard where unmemorialized oral communications are at issue."; "If we were to apply a heightened standard to oral communications, would-be criminals could use the differing standards to avoid the proper application of the crime-fraud exception. A client could seek to take advantage of the higher showing necessary to delve into oral communications by instructing the attorney not to record the communications in any way. We do not want to incentivize circumventing the proper application of the crime-fraud exception. As for the due process implications, we believe that a district court can properly be entrusted to consider the due process interests and circumstances in each case, and use its discretion to fashion a proper procedure for the in camera examination."; "The risk of inaccuracies is mitigated by the fact that the attorney will be under oath and face questioning from a judge rather than an adversary."; "[W]e hold that district courts should use the Zolin standard to determine whether to examine a witness in camera. Before a district court can undertake an in camera examination of an attorney-witness to determine the applicability of the crime-fraud exception, the party seeking to overcome the privilege must make a 'showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 18.403
Case Name: Kenyon & Kenyon LLP v. Sightsound Tech., LLC, 650795/2014, 2018 N.Y. Misc. LEXIS 2511 (N.Y. Sup. Ct. June 21, 2018)
("[T]he crime-fraud exception forces disclosure of communications involving fraudulent schemes, alleged breaches of fiduciary duty, or accusations of other wrongful conduct. . . . A party seeking to compel disclosure based on the crime-fraud exception must establish 'a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime' (id). The Firm has established neither."; "The facts alleged fail to establish probable cause that GE engaged in conversations to either commit or further a fraud on the Firm. . . . GE merely exercised its contractual discretion, as approved by the court.")

Case Date Jurisdiction State Cite Checked
2018-06-21 State NY
Comment:

key case


Chapter: 18.403
Case Name: Drummond Company, Inc. v. Conrad & Scherer, LLP, Nos. 16-11090, 15-90031, 2018 WL (11th Cir. App. March 23, 2018)
(holding that the crime-fraud exception could apply even if the client was innocent of any wrongdoing; "After determining that the crime-fraud exception may apply, the district court ordered a special master to review in camera the documents that Collingsworth and C&S claimed were privileged or protected as attorney work product to determine whether each individual document was in furtherance of or closely related to a fraud on the court or crime and therefore should be produced to Drummond. The court also set forth a procedure for the special master to assess a witness's assertion or attorney-client privilege or attorney work product protection in a deposition. The court directed that when necessary a witness should give in camera testimony, potentially ex parte, so that the special master could appropriately assess any privilege issues while limiting disclosure only to information used or created in furtherance of the crime or fraud.")

Case Date Jurisdiction State Cite Checked
2018-03-23 Federal
Comment:

key case


Chapter: 18.403
Case Name: Drummond Company, Inc. v. Conrad & Scherer, LLP, Nos. 16-11090, 15-90031, 2018 WL (11th Cir. App. March 23, 2018)
(holding that the crime-fraud exception could apply even if the client was innocent of any wrongdoing; "'On remand, under the district court's order, the special master will perform an in camera review of certain categories of documents that C&S and Collingsworth contend are protected by the attorney client privilege or work product protection. To conclude that the crime-fraud exception applies to require disclosure of any specific document, the special master must find that the document either (1) reflects a communication used to further a crime or fraud or was closely related to it or (2) was created to further a crime or fraud or was closely related to it.'")

Case Date Jurisdiction State Cite Checked
2018-03-23 Federal

Chapter: 18.403
Case Name: Buttonwood Tree Value Partners, L.P. v. R.L. Polk & Co., Civ. A. No. 9250-VCG, 2018 Del. Ch. LEXIS 6 (Del. Ch. Ct. Jan. 10, 2018)
(analyzing the Garner doctrine and the client fraud exception; ultimately concluding that neither one applied in a lawsuit by the members of a family who sold their stock to self-tender; "To invoke the crime-fraud exception, 'a mere allegation of fraud is not sufficient.' Instead, the proponent of the exception must 'make[] a prima facie showing that the confidential communications were made in furtherance of a crime or fraud.' The client must intend the communications 'to be used as a basis for criminal or fraudulent activity, whether or not that criminal or fraudulent intent ever comes to fruition.' Put differently, 'the advice must advance, or the client must intend the advice to advance, the client's criminal or fraudulent purpose.' And it is not enough that the privileged communications 'would provide an adversary with evidence of a crime or fraud.' Nor can the exception be invoked simply because the advice relates to the crime or fraud.' Finally, the exception does not apply 'merely upon a showing that the client communicated with counsel while the client was engaged in criminal [or fraudulent] activity.'"; "The Plaintiffs' invocation of the crime-fraud exception suffers from a fatal flaw: the absence of any evidence that the Defendants sought the advice of their attorneys for the purpose of accomplishing their allegedly fraudulent scheme. The Plaintiffs aver that the 2011 self-tender was fraudulently induced via a failure to disclose several material facts, including that the Polk family was considering selling the company. And, as the privilege logs reveal, the Defendants consulted with attorneys about various restructuring options, including the self-tender. But there is no indication that the Defendants intended to use these consultations to further the purportedly fraudulent scheme, or that the advice received during these consultations helped them perpetrate the scheme. The Plaintiffs have shown only that, during the alleged fraud, the Defendants spoke with counsel about matters related to the transaction in connection with which they allegedly provided inadequate disclosures; the 2011 self-tender. That is not enough, to my mind, to invoke the crime-fraud exception."; "[T]he crime-fraud exception does not vitiate the privilege upon a showing that the privileged communications would provide the movant with evidence useful to demonstrating a crime or fraud. 'If it did, the privilege would be virtually worthless because a client could not freely give, or an attorney request, evidence that might support a finding of culpability.' A privileged communication may reveal that a fraudster knew the information he gave his victim was false. But the crime-fraud exception would not apply to that communication absent a showing that the fraudster consulted his attorney in order to further his fraudulent scheme. The Plaintiffs point to nothing indicating such is the case here. Because the Plaintiffs have failed to make a prima facie showing that the privileged communications at issue were made in furtherance of a fraudulent scheme, the crime-fraud exception does not apply.")

Case Date Jurisdiction State Cite Checked
2018-01-10 State DE

Chapter: 18.403
Case Name: United States v. Hallinan, Crim. A. No. 16-130-01,-02, 2017 U.S. Dist. LEXIS 199490 (E.D. Pa. Dec. 5, 2017)
("The crime-fraud exception to the attorney-client privilege and the attorney work product privilege applies where "there is a reasonable basis to suspect (1) that the privilege holder was committing or intending to commit a crime or fraud, and (2) that the attorney-client communications or attorney work product was used in furtherance of that alleged crime or fraud.")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal PA

Chapter: 18.403
Case Name: In re Bair Hugger Force Air Warming Devices Prods. Liability Litig., MDL No. 15-2666 (JNE/FLN), 2017 U.S. Dist. LEXIS 141023 (D. Minn. Aug. 30, 2017)
(finding the crime-fraud exception inapplicable; "Even if the Court uses the Memorandum's findings, the Documents are privileged. To pierce the attorney-client privilege here, the Plaintiffs must show that the Documents 'w[ere] written to encourage the alleged falsification.'. . . Plaintiffs have not done so.")

Case Date Jurisdiction State Cite Checked
2017-08-30 Federal MN

Chapter: 18.403
Case Name: In re Bair Hugger Force Air Warming Devices Prods. Liability Litig., MDL No. 15-2666 (JNE/FLN), 2017 U.S. Dist. LEXIS 141023 (D. Minn. Aug. 30, 2017)
(finding the crime-fraud exception inapplicable; "The crime-fraud exception doesn't apply here because the Memorandum does not include a showing that Defendants' then-counsel wrote the Documents 'to encourage' a crime.")

Case Date Jurisdiction State Cite Checked
2017-08-30 Federal MN

Chapter: 18.403
Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 17-cv-00939-WHA-(JSC), 2017 U.S. Dist. LEXIS 98604 (N.D. Cal. June 26, 2017)
(holding that the crime-fraud exception did not apply to communications between Uber and its acquired company Ottomotto; "Waymo contends (1) Uber was engaged in or planning the crime of receipt of Waymo's stolen property; and (2) that its communications with MoFo were in furtherance of that scheme. It cites the evidence that Levandowski took 14,000 of Waymo's files and that Uber knew that Levandowski took some material as evidence that satisfies its burden. The Court is not persuaded. That Uber knew Levandowski took some of Waymo's files is not a showing by a preponderance of the evidence that Uber retained MoFo in January/February 2016 to assist it with the crime of receiving stolen property. Further, based on the Court's review of the entire record in this case, including the in camera Stroz Report, the Court found that Uber retained MoFo to conduct an investigation into Levandowski and Otto and to create an evidentiary record that would govern Uber's obligation to indemnify Levandowski and Otto in any lawsuit brought by Waymo. The Court does not find that Uber retained MoFo to assist with obtaining Waymo's trade secrets. That in the course of that investigation MoFo received documents that may be Waymo's trade secrets, does not mean that Waymo has shown by a preponderance of the evidence that Uber's and MoFo's communications were made in furtherance of a criminal scheme. Evidence developed later may show otherwise, but that is the state of the record at this time. Further, Waymo has not established that the crime/fraud exception applies to an attorney's purported violation of an ethical rule.")

Case Date Jurisdiction State Cite Checked
2017-06-26 Federal CA
Comment:

key case


Chapter: 18.403
Case Name: In re Grand Jury Subpoena ABC Co., No. 16-3479, 2017 U.S. App. LEXIS 10690 (3rd Dis. App. June 16, 2017)
("'[A] party seeking to apply the crime-fraud exception must demonstrate that there is a reasonable basis to suspect (1) that the privilege holder was committing or intending to commit a crime or fraud, and (2) that the attorney-client communication or attorney work product was used in furtherance of that alleged crime or fraud.'. . . 'there must be 'prima facie evidence that [the application of the exception] has some foundation in fact.'. . . 'A 'prima facie showing' requires presentation of 'evidence which, if believed by the fact-finder, would be sufficient to support a finding that the elements of the crime-fraud exception were met.'")

Case Date Jurisdiction State Cite Checked
2017-06-16 Federal

Chapter: 18.403
Case Name: Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, Adv. Pro. No. 08-01789 (SMB), Adv. Pro. No. 10-04216 (SMB), 2017 Bankr. LEXIS 519 (S.D.N.Y. Feb. 17, 2017)
("Notably, the crime-fraud exception does not rest on the principle that a client who seeks advice in furtherance of a planned or ongoing fraud thereby waives the right to rely on the attorney-client privilege. Instead, the crime-fraud exception arises out of the judiciary's recognition that the attorney-client privilege exists so that clients may confidentially seek 'sound legal advice.' In re Grand Jury Subpoena dated Sept. 15, 1983, 731 F.2d at 1038. As the Second Circuit has observed, 'advice in furtherance of a fraudulent or unlawful goal cannot be considered 'sound.' Id. Rather, such advice is 'socially perverse.' Id. It follows that courts should not extend the protections of the attorney-client privilege to such advice."; "Indeed, in Duttle, Magistrate Judge Francis went so far as to conclude, based upon the decision in In re Grand Jury Subpoena, that 'legal advice that furthers a fraudulent goal is not privileged, regardless of the innocence of the client seeking the advice.'"; "From the foregoing, is seems apparent that the issue in this proceeding is not one of waiver. There is, in fact, no suggestion that either Ms. Crupi or Ms. Bowen has been asked to waive her privilege with respect to the Guston & Guston documents. Nonetheless, because the Trustee has established that there is substantial reason to believe that Ms. Crupi was seeking advice from Guston & Guston in furtherance of actual or planned fraudulent activity, the Trustee is entitled to the production of the documents that would otherwise be privileged concerning the Defendants' purchase of the Mantoloking house. That Ms. Bowen may not have been involved in the fraudulent scheme does not alter this result.")

Case Date Jurisdiction State Cite Checked
2017-02-17 Federal NY

Chapter: 18.403
Case Name: Fragin v. First Funds Holdings LLC, 652673/2014, 2016 N.Y. Misc. LEXIS 2970 (N.Y. Sup. Ct. Aug. 11, 2016)
(finding the crime-fraud exception applicable to communications to and from the law firm of Moses & Singer, despite that firm's lack of intent to commit wrongdoing; "A party seeking to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe: (1) that a fraud or crime has been committed and (2) that the communications in question were in furtherance of the fraud or crime. . . . Fragin has made this requisite two-part showing.")

Case Date Jurisdiction State Cite Checked
2016-08-11 Federal NY

Chapter: 18.403
Case Name: Martin v. Giordano, 11-CV-4507 (ARR), 2016 U.S. Dist. LEXIS 59940 (E.D.N.Y. May 4, 2016)
(analyzing the crime-fraud exception, and finding it inapplicable; "None of these claims, singly or jointly, warrants in camera inspection of the challenged information, much less outright application of the crime-fraud exception. First, the fact that plaintiff's lawyers exhibited dilatory and disobedient conduct in the course of the litigation does nothing to demonstrate that the communications on March 25 were in furtherance of a crime or fraud and intended to facilitate or conceal the criminal or fraudulent activity. Asserting otherwise is sheer speculation, particularly where there is no indication that plaintiff's lawyers undertook such conduct at plaintiff's behest. Second, the fact that alleged contradictions exist in the record does not constitute a substantial basis for believing that the communications furthered a crime and were intended to do so. Contradictions proliferated both sides of the underlying case, and although they may have provided fertile ground for cross-examination, they do not ipso facto render attorney-client communications by the party who caused them susceptible to this exception. Third, the fact that plaintiff filed his stipulation of voluntary dismissal abruptly and belatedly does not provide a reasonable basis for believing that the communications furthered a crime and were intended to do so. This court can easily imagine numerous benign reasons why a plaintiff might decide on the eve of trial to withdraw his or her suit. This decision is not inherently suspect, particularly in view of the vicissitudes that attend litigation at its final stages. . . . The conduct of plaintiff and his attorneys is equally consistent with a legitimate tactical decision, id., and second-guessing that decision is an insufficient basis to trigger the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2016-05-04 Federal NY

Chapter: 18.403
Case Name: In re Grand Jury Subpoena v. United States, No. 15-4080, 2016 U.S. App. LEXIS 5381 (4th Cir. App. March 23, 2016)
(analyzing the crime-fraud exception; "To overcome the attorney-client privilege and 'secure [sought] evidence,'. . . The government must convince the court: (1) that 'the client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel,' and (2) that the attorney's assistance was obtained in furtherance of the crime or fraud or was closely related to it.")

Case Date Jurisdiction State Cite Checked
2016-03-23 Federal

Chapter: 18.403
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015)
(finding the crime-fraud exception inapplicable because the ignition switch plaintiffs could not establish that the King & Spalding communications furthered any alleged General Motors wrongdoing; "Plaintiffs' first theory -- that New GM's communications with K&S were intended to (and did) conceal the existence of the ignition switch defect from the public and regulators -- gained some traction when New GM entered the DPA because it is now indisputable that there is probable cause to believe that New GM engaged in a scheme to conceal a deadly safety defect from its regulator, NHTSA, and committed wire fraud in doing so. . . . Plaintiffs' bid falls short, however, with respect to the second prong of the crime-fraud test. Put simply, Plaintiffs do not provide a factual basis for a good faith belief that the communications and work product they seek -- let alone any particular communications or work product they seek -- were made with the intent to further a crime or fraud."; "To be sure, the confidential settlements in the Chansuthus, Sullivan, and Melton matters may, in some respects, have contributed to the delay in notifying the public and New GM's regulators about the ignition switch defect. But there is an important distinction between effect and intent.")

Case Date Jurisdiction State Cite Checked
2015-11-25 Federal NY
Comment:

key case


Chapter: 18.403
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015)
(finding the crime-fraud exception inapplicable because the ignition switch plaintiffs could not establish that the King & Spalding communications furthered any alleged General Motors wrongdoing; "'Many of these cases are distinguishable for another reason. Some of the courts held that, to satisfy the second prong of the crime-fraud test, a 'communication or document need only reasonably relate to the subject matter of the purported fraud. . . . In the Court's judgment, the 'reasonably related' test is in some tension, if not conflict, with the Second Circuit's analysis . . . . In the former, the Court rejected a crime-fraud test that looked to whether documents were 'relevant evidence of activity in furtherance of a crime,' and held instead that 'the exception applies only when the court determines that the client communication or attorney work product in question was itself in furtherance of the crime or fraud.'. . . The Court reiterated its rejection of the 'relevant evidence' test . . . . In this Court's view, 'reasonably relate[d] to' feels perilously close to the rejected 'relevant evidence of" standard.'")

Case Date Jurisdiction State Cite Checked
2015-11-25 Federal NY
Comment:

key case


Chapter: 18.403
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015)
(finding the crime-fraud exception inapplicable because the ignition switch plaintiffs could not establish that the King & Spalding communications furthered any alleged General Motors wrongdoing; "New GM's and K&S's conduct may well have contributed to the delay in public disclosure of the ignition switch defect. And it may well be that Plaintiffs can ultimately prove (as the criminal charges against New GM certainly suggest) that there was an intentional scheme on the part of some at New GM to conceal the ignition switch defect from the public and NHTSA (and that the confidential settlements served to facilitate that scheme). But the Second Circuit has 'strong[ly] emphasi[zed]' that evidence of a crime or fraud alone is not enough to vitiate the attorney-client privilege and work product doctrine . . . And that the moving party must also show 'that the particular communication with counsel or attorney work product was intended in some way to facilitate or to conceal the criminal activity,'. . . Here, even though Plaintiffs are already privy to most of the communications between New GM and K&S, they have failed to make that showing with respect to their first theory, of concealment.")

Case Date Jurisdiction State Cite Checked
2015-11-25 Federal NY
Comment:

key case


Chapter: 18.403
Case Name: In re General Motors LLC Ignition Switch Litigation, Nos. 14-MD-2543 (JMF) & 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015)
January 20, 2016 (PRIVILEGE POINT)

"The Southern District of New York Addresses the Crime-Fraud Exception"

The "crime-fraud" exception can deny privilege protection for certain otherwise protected communications between lawyers and their clients. However, many litigants and even some lawyers misunderstand the doctrine's narrow reach.

In In re General Motors LLC Ignition Switch Litigation, Nos. 14-MD-2543 (JMF) & 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015), Judge Furman analyzed plaintiffs' attempt to strip away GM's privilege protection for communication with its ignition switch litigation lawyers at King & Spalding. Plaintiffs claimed that the communications involved GM's knowing concealment of ignition switch troubles — and sought production of the withheld communications or at least the court's in camera review of those documents. The court rejected plaintiffs' arguments. Although acknowledging that GM's deferred prosecution agreement provided evidence that GM may have engaged in criminal or fraudulent conduct, the court held that plaintiffs fell short of providing a "factual basis" for their argument that "any particular communications or work product they seek . . . Were made with the intent to further a crime or fraud." Id. At *128. The court correctly applied the crime-fraud exception. That doctrine does not destroy privilege protection for documents that might evidence the client's misconduct. Instead, the adversary must establish to some degree (courts disagree on the exact standard) that the withheld communications furthered the client's sufficiently egregious misconduct.

With the increasing criminalization of corporate wrongdoing, companies should be relieved that most courts continue to hold the line on an "exception" to the attorney-client privilege that could otherwise swallow the protection. Next week's Privilege Point will discuss another favorable ruling in the same case.

Case Date Jurisdiction State Cite Checked
2015-11-25 Federal NY
Comment:

key case


Chapter: 18.403
Case Name: In re Subpoena to Testify Before Grand Jury, Case No. 15-mc-80207-JSC, 2015 U.S. Dist. LEXIS 122305 (N.D. Cal. Sept. 14, 2015)
("Here, the Court's in camera review of the material the government submitted establishes reasonable cause to believe that there was an ongoing crime and that Bhatnagar's legal services were utilized by his client in furtherance of the ongoing unlawful scheme. The Court declines to disclose the basis of this belief in light of the sensitive nature of the government's ongoing investigation. . . . Out of an abundance of caution in light of the Ninth Circuit's recent decision in Christensen, the Court will instead review the documents sought in camera under the two-part Zolin test to confirm that the crime-fraud exception applies.").

Case Date Jurisdiction State Cite Checked
2015-09-14 Federal CA

Chapter: 18.403
Case Name: In re Grand Jury Proceedings, No. 15-1555, 2015 U.S. App. LEXIS 15911 (1st. Cir. App. Sept. 4, 2015)
(assessing the crime-fraud exception; "In camera review can perform two separate functions in the crime-fraud exception context. First, in camera review may be used to determine whether there is sufficient evidence to apply the crime-fraud exception to a claim of attorney-client privilege."; "Second, in camera review may be sought for a different purpose -- to determine whether specific documents evidence communications with attorneys in furtherance of the crime or fraud. This is because the crime-fraud exception requires 'that the communications were intended by the client to facilitate or conceal the criminal or fraudulent activity.'").

Case Date Jurisdiction State Cite Checked
2015-09-04 Federal
Comment:

key case


Chapter: 18.403
Case Name: United States ex rel. Landis v. Tailwind Sports Corp., Case No. 1:10-cv-00976 (CRC) (D.D.C. July 13, 2015)
(finding the crime-fraud exception inapplicable, because bicyclist Floyd Landis could not establish that Williams & Connelly provided advice to Lance Armstrong that furthered Armstrong's fraud).

Case Date Jurisdiction State Cite Checked
2015-07-13 Federal DC

Chapter: 18.403
Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015)
(holding that an executive of a corporate affiliate was within the privilege, so his presence did not destroy the privilege protection, and disclosing privileged communications that did not waive the privilege; "The Court agrees with Plaintiff that there does appear to be a basis for the crime-fraud exception to apply to the 2005 documents. Plaintiff must make a prima facie showing that the client was committing or intending to commit a fraud or crime, and that the attorney-client communications were in furtherance of that alleged crime or fraud.")

Case Date Jurisdiction State Cite Checked
2015-06-09 Federal CA

Chapter: 18.403
Case Name: In re Grand Jury Subpoenas Dated March 2, 2015, 15-1976, 2015 U.S. App. LEXIS 17633 (2nd Cir. App. Oct. 6, 2015)
("A party wishing to invoke the exception must prove (1) 'that the client communication or attorney work product in question was itself in furtherance of the crime or fraud' and (2) 'probable cause to believe that the particular communication with counsel or attorney work product was intended in some way to facilitate or to conceal the criminal activity.'. . . But '[w]here the very act of litigating is alleged as being in furtherance of a fraud,' we adopt a more stringent probable cause standard, that is, 'the party seeking disclosure . . . Must show probable cause that the litigation or an aspect thereof had little or no legal or factual basis and was carried on substantially for the purpose of furthering the crime or fraud.'")

Case Date Jurisdiction State Cite Checked
2015-06-06 Federal

Chapter: 18.403
Case Name: United States v. Weed, Crim. No. 14-cr-10348-DPW, 2015 U.S. Dist. LEXIS 52538 (D. Mass. April 14, 2015)
(finding the crime-fraud exception applicable; "For the crime-fraud exception to apply, the party invoking it must make a prima facie showing first, that the client was engaged in (or was planning) criminal or fraudulent activity at the time of the attorney-client communications, and, second, that the client intended that the communications would facilitate or conceal the wrongful activity.")

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal MA

Chapter: 18.403
Case Name: In re Application Pursuant to 28 U.S.C. § 1782 of Okean B.V., 12 Misc. 104 (PAE), 2014 U.S. Dist. LEXIS 145548 (S.D.N.Y. Oct. 10, 2014)
(analyzing discovery issues in connection with 28 U.S.C. § 1782, which governs discovery for use in a foreign proceeding; ultimately refusing to apply the crime-fraud exception to Russian documents; finding after an in camera review that the crime-fraud exception would not have applied anyway; "Having reviewed those documents carefully in camera, the Court rejects this claim. Simply put, the documents fall far, far short of establishing the crime-fraud exception. They do not reveal a fraudulent scheme, or anything close. They reflect attorneys working with clients to arrange a complex business transaction on a tight timetable. To be sure, if one starts off with the premise, as Okean does, that there was a fraudulent scheme afoot, the documents contain stray turns of phrase or factual particulars that can be woven into a broader tale of fraud. But if one starts off with the correct assumption, which is that the burden of proving the crime-fraud exception is on the entity seeking to defeat privilege, the documents are manifestly insufficient to show any such fraud. Therefore, the Court holds, emphatically, that the documents in question remain privileged, even if a U.S.-style crime-fraud exception could be said to exist.")

Case Date Jurisdiction State Cite Checked
2014-10-10 Federal NY

Chapter: 18.403
Case Name: United States v. Harris, Crim. No. 2:14cr76, 2014 U.S. LEXIS 140333 (E.D. Va. Oct. 1, 2014)
(analyzing the crime-fraud exception; pointing to In re Grand Jury Proceedings #5, 401 F.3d at 251; "In determining whether the crime-fraud exception to the attorney-client privilege applies in a given case, 'it is the client's knowledge and intentions that are of paramount concern,' and the exception can apply even if the attorney is unaware of the client's ongoing crime or fraud. . . . The operative question, therefore, is whether 'the communication furthered, or was intended by the client to further' the client's fraudulent or illegal purpose.")

Case Date Jurisdiction State Cite Checked
2014-10-01 Federal VA

Chapter: 18.403
Case Name: Williams v. Duke Energy Corp., Civ. A. 1:08-cv-00046, 2014 U.S. Dist. LEXIS 109835 (S.D. Ohio Aug. 8, 2014)
("There is a difference between going to a lawyer and asking the lawyer to tell you whether the course of action you want to pursue is arguably within the limits of what the law permits and going to a lawyer and asking the lawyer to assist you in violating the law or to show you how to violate the law. Here plaintiffs have offered no evidence, direct or circumstantial, that suggests defendants took the latter course when they consulted with in-house counsel about the options agreements.")

Case Date Jurisdiction State Cite Checked
2014-08-08 Federal OH

Chapter: 18.403
Case Name: Freedman v. Weatherford International Ltd., 12 Civ. 2121 (LAK) (JCF), 2014 U.S. Dist. LEXIS 102248 (S.D.N.Y. July 25, 2014)
("[I]n order for the exception to apply, the moving party must also establish probable cause that the disputed communications 'were intended in some way to facilitate or to conceal the [fraudulent] activity.'. . . The communications must have been in furtherance of illegitimate conduct at issue.")

Case Date Jurisdiction State Cite Checked
2014-07-25 Federal NY

Chapter: 18.403
Case Name: Freedman v. Weatherford International Ltd., 12 Civ. 2121 (LAK) (JCF), 2014 U.S. Dist. LEXIS 102248 (S.D.N.Y. July 25, 2014)
("The plaintiffs have failed to point to any particular communications that could reasonably be said to be in furtherance of any fraud. They seek 'all factual materials that were the basis of the Latham Investigation,' including documents related to 'detailed interview debriefs' provided to E&Y. . . . As an example, they seek summaries from interviews with the Weatherford employee who made the intentional manipulations to achieve a certain tax rate. . . . However, such documents are not the type that facilitate or further fraudulent conduct; at most, they would potentially provide evidence of a fraud. This is insufficient to trigger the crime-fraud waiver.")

Case Date Jurisdiction State Cite Checked
2014-07-25 Federal NY

Chapter: 18.403
Case Name: Transcontinental Refrigerated Lines, Inc. v. New Prime, Inc., Civ. No. 1:13-CV-2163, 2014 U.S. Dist. LEXIS 75320, at *43 (M.D. Pa. June 3, 2014)
("A communication is made in furtherance of crime or fraud, and thus falls within the crime-fraud exception, if it advances, or the client intends it to advance, the client's criminal or fraudulent purpose.")

Case Date Jurisdiction State Cite Checked
2014-06-03 Federal PA

Chapter: 18.403
Case Name: Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *20 (D. Conn. Feb. 20, 2014)
(finding the crime-fraud exception inapplicable; "[E]ven if defendant had made the requisite showing, defendant also failed to demonstrate that the communications it seeks were in furtherance of the purported fraud. In that vein, defendant failed to submit any evidence demonstrating probable cause to believe that the assistance of Attorney Beebe was sought by plaintiff in furtherance of alleged insurance fraud.")

Case Date Jurisdiction State Cite Checked
2014-02-20 Federal CT B 7/14

Chapter: 18.403
Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. No. 2:06-cv-1797, 2014 U.S. Dist. LEXIS 2344, at *20 (E.D. Pa. Jan. 9, 2014)
(analyzing the crime-fraud exception; "The 'in furtherance' element requires the movant to show that a given communication was 'meant to facilitate future wrongdoing by the client.' . . . It is only those communications that the exception renders discoverable.")

Case Date Jurisdiction State Cite Checked
2014-01-09 Federal PA B 6/14

Chapter: 18.403
Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 691 (3d Cir. 2014)
(concluding that the crime-fraud exception did not apply if the client formed a criminal intent after obtaining advice; "In this circuit, the crime-fraud exception to the attorney-client privilege applies '[w]here there is a reasonable basis to suspect that the privilege holder was committing or intending to commit a crime or fraud and that the attorney-client communications or attorney work product were used in furtherance of the alleged crime or fraud.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 18.403
Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 691, 692, 693, 694 (3d Cir. 2014)
(concluding that the crime-fraud exception did not apply if the client formed a criminal intent after obtaining advice; "In delineating the connection required between the advice sought and the crime or fraud, we have repeatedly stated that the legal advice must be used 'in furtherance' of the alleged crime or fraud. We have rejected a more relaxed 'related to' standard." (citation omitted); "If the attorney merely informs the client of the criminality of a proposed action, the crime-fraud exception does not apply. For example, consider the situation where a client, intending to undertake an illegal course of action, consults a first attorney, tells the attorney the proposed course of action, and the attorney advises that the course of action is illegal. The client, dissatisfied with the first attorney's answer, then consults a second attorney. The client tells the attorney the same proposed course of action, but this attorney says yes, that course of action is legal. Both of these consultations would remain privileged, because the attorneys merely opined on the lawfulness of a particular course of conduct, and this advice cannot be used 'in furtherance' of the crime."; "A crime-fraud finding overcomes the work product privilege.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 7/14 B 7/14

Chapter: 18.403
Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 691, 691-92, 692 (3d Cir. 2014)
(concluding that the crime-fraud exception did not apply if the client formed a criminal intent after obtaining advice; "We review the District Court's determination that there is sufficient evidence for the crime-fraud exception to apply for an abuse of discretion."; "The exception does not apply where the client forms the intent to engage in criminal or fraudulent activity after the consultation."; "A hypothetical question posed by Judge Ambro at oral argument highlights the importance of the timing of intent. A client consults with an attorney, intending at the time to go as close to the line of illegality as possible but to remain within the realm of legal conduct. The client tells the attorney of a possible course of conduct and asks for advice on the applicable law. The attorney gives advice, explaining which actions would be legal and which actions would be illegal. A year later, the client decides that he or she will cross the line from legal to illegal. Here, the crime-fraud exception would not apply, because the client was not committing a crime or fraud or intending to commit a crime or fraud at the time he or she consulted the attorney. Even if the client clearly used the advice obtained a year earlier in furtherance of the crime or fraud, the exception would not apply because the client did not have the requisite intent at the time of the consultation.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 18.403
Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 691, 691-92, 692 (3d Cir. 2014)
(analyzing the crime-fraud exception; assessing whether the court should strip away the attorney-client privilege; "In this circuit, the crime-fraud exception to the attorney-client privilege applies '[w]here there is a reasonable basis to suspect that the privilege holder was committing or intending to commit a crime or fraud and that the attorney-client communications or attorney work product were used in furtherance of the alleged crime or fraud.'" (citation omitted); "For the crime-fraud exception to apply, the client must be 'committing or intending to commit a crime or fraud' at the time he or she consults the attorney. . . . This requirement is stated in the present tense, and does not by its terms apply to a situation where a client consults an attorney about a possible course of action and later forms the intent to undertake that action. We have also observed that the attorney-client privilege 'is not lost if the client innocently proposes an illegal course of conduct to explore with his counsel what he may or may not do.'. . . The exception does not apply where the client forms the intent to engage in criminal or fraudulent activity after the consultation."; "A hypothetical question posed by Judge Ambro at oral argument highlights the importance of the timing of intent. A client consults with an attorney, intending at the time to go as close to the line of illegality as possible but to remain within the realm of legal conduct. The client tells the attorney of a possible course of conduct and asks for advice on the applicable law. The attorney gives advice, explaining which actions would be legal and which actions would be illegal. A year later, the client decides that he or she will cross the line from legal to illegal. Here, the crime-fraud exception would not apply, because the client was not committing a crime or fraud or intending to commit a crime or fraud at the time he or she consulted the attorney. Even if the client clearly used the advice obtained a year earlier in furtherance of the crime or fraud, the exception would not apply because the client did not have the requisite intent at the time of the consultation.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 18.403
Case Name: Truck Ins. Exch. v. Superior Court, No. A137420, 2013 Cal App. Unpub. LEXIS 5487, at *15 16 (Cal. Ct. App. July 31, 2013)
(granting an interlocutory appeal in state court; "As explained by our Supreme Court, the crime-fraud exception is invoked 'only when a client seeks or obtains legal assistance "to enable or aid" one to commit a crime or fraud.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-07-31 State CA B 4/14

Chapter: 18.403
Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *13-14, *14 (E.D. Wis. July 10, 2013)
("[F]or the crime-fraud exception to apply there must be prima facie evidence regarding the charge, and prima facie evidence generally means probable cause to believe that a crime has been attempted or committed and that the communications at issue were in furtherance of the crime. As an indictment must be based on probable cause . . ., the government has established that the crime-fraud exception may apply to some communications. . . . Defendants Balsiger and Currey concede that the Superseding Indictment constitutes a prima facie showing for purposes of this privilege dispute."; "However, '[a]lthough an indictment may provide probable cause to believe that the crime charged was committed, an indictment, standing alone, does not provide probable cause to believe that [an individual's] communications with [his] lawyers were in furtherance of the conduct charged in the Indictment.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 18.403
Case Name: In re Oil Spill, Case 2:10-md-02179-CJB-SS, slip op. at 26, 41 (E.D. La. Apr. 30, 2013)
("Doc. Nos. 014.1, 015.4 and 018.1 are the draft letter prepared by attorneys reflecting legal advice regarding responses to questions from Congressman Markey on May 14, 2010. These communications and documents are not in furtherance of contemplated or ongoing criminal or fraudulent conduct. They are not subject to the crime-fraud exception."; "After conducting the review, the Court finds that the U.S. and Transocean have not carried their burden of establishing a prima facie case that the attorney-client relationship was intended to further criminal or fraudulent activity. In re Grand Jury, 419 F.3d [329,] 335 [(5th Cir. 2005)] Assuming that the prima facie case was established, the Court finds the attorney-client communications do not reasonably relate to the activity at issue nor is there probable cause to believe that these attorney-client communications were intended in some way to facilitate or to conceal the activity at issue.")

Case Date Jurisdiction State Cite Checked
2013-04-30 Federal LA B 9/13

Chapter: 18.403
Case Name: In re 650 Fifth Ave. & Related Props., No. 08 Civ. 10934 (KBF), 2013 U.S. Dist. LEXIS 64150, at *7 (S.D.N.Y. Apr. 24, 2013)
("To overcome that privilege, a party must show probable cause that a crime or fraud has been committed and that the communications were in furtherance thereof." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-04-24 Federal NY B 7/13

Chapter: 18.403
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 36353, at *96-97 (S.D.N.Y. Mar. 15, 2013)
(ordering the law firm of Patton Boggs to produce documents to Chevron based on the crime-fraud exception; "In order successfully to invoke the crime-fraud exception, a party seeking disclosure must demonstrate that there is 'probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud.' Probable cause exists where 'a prudent person ha[s] a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud, and that the communications were in furtherance thereof.' Moreover, 'a finding of probable cause is not negated by "an innocent explanation which may be consistent with the facts alleged."' Thus, in order to obtain disclosure of otherwise privileged or protected evidence by means of the crime-fraud exception, the party seeking disclosure must show a factual basis to support a conclusion that there is probable cause to believe that (1) a crime or fraud was or is being committed, and (2) the communication in question was or is in furtherance of the crime or fraud." (citations omitted))

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal NY B 3/14

Chapter: 18.403
Case Name: Weitz & Luxenberg P.C. v. Georgia-Pacific LLC (In re N.Y.C. Abestos Litig.), 966 N.Y.S.2d 420, 423 (N.Y. App. Div. 2013)
(analyzing the crime-fraud exception, and ordering Georgia-Pacific to produce otherwise protected internal documents about studies it intended to use to support its assertions about the health effects of a Georgia-Pacific product; "The foregoing constitutes a sufficient factual basis for a finding that the relevant communications could have been in furtherance of a fraud, and the motion court properly confirmed the recommendation directing in camera review of the internal documents. As the court remarked, it is of concern that GP's in-house counsel would be so intimately involved in supposedly objective scientific studies, especially in light of GP's disclosures denying such participation.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State NY B 4/14

Chapter: 18.403
Case Name: Amusement Indus., Inc. v. Stern, 203 F.R.D. 420, 426 (S.D.N.Y. 2013)
(finding the crime-fraud exception applicable; "A party seeking 'to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed' -- or has been attempted -- 'and that the communications in question were in furtherance of the fraud or crime.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NY B 2/14

Chapter: 18.403
Case Name: Am. Municipal Power, Inc. v. Bechtel Power Corp., Civ. A. 2:11 cv 131, 2012 U.S. Dist. LEXIS 173082, at *10 (S.D. Ohio Dec. 6, 2012)
(finding the crime-fraud exception inapplicable; "[T]he subject exchange did not involve Bechtel employees seeking assistance or legal advice from Daw [lawyer] for purposes of planning the alleged fraud. Because the second prong of the Sixth Circuit's test is not satisfied, the crime-fraud exception cannot apply.")

Case Date Jurisdiction State Cite Checked
2012-12-06 Federal OH B 9/13

Chapter: 18.403
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *21 (E.D. Va. Dec. 3, 2012)
("Because communications between Leffler and Moazzeni do not 'bear a close relationship' to the subject crimes, those documents do not fall within the crime-fraud exception." (citation omitted))

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA B 5/12

Chapter: 18.403
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *21 (E.D. Va. Dec. 3, 2012)
("Because communications between Leffler and Moazzeni do not 'bear a close relationship' to the subject crimes, those documents do not fall within the crime-fraud exception. In re Grand Jury Proceedings #5, 401 F.3d at 251.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA
Comment:

key case


Chapter: 18.403
Case Name: In re West, Case No. 11 15594 BFK, Ch. 7 2012 Bankr. LEXIS 1673, at *22-23 (Bankr. E.D. Va. Apr. 17, 2012)
(holding that the crime fraud exception did not apply; "At bottom, though, assuming that there was some sort of impropriety, be it a crime or a fraud, the Court cannot see how Ms. West sought the advice of the Sands Anderson firm in furtherance of the scheme, nor can the Court conclude that the advice rendered bore a 'close relationship' to the scheme. Mr. Ebel's e mail cannot be said to have been in furtherance of a fraud or a crime."; "Nor can Sands Anderson's advice be said to constitute the kind of direct, pre-fraudulent transfer advice from the law firm at issue in the In re Andrews [In re Andrews, 80 F.3d 906 (4th Cir.1996)] case. Any advice that Sands Anderson gave cannot be said to be 'closely connected' to the alleged crime or fraud.")

Case Date Jurisdiction State Cite Checked
2012-04-17 Federal VA

Chapter: 18.403
Case Name: In re Alexandria Priftis West, Case No. 11-15594-BFK, Ch. 7, 2012 Bankr. LEXIS 1673 (E.D. Va. April 17, 2012)
("At bottom, though, assuming that there was some sort of impropriety, be it a crime or a fraud, the Court cannot see how Ms. West sought the advice of the Sands Anderson firm in furtherance of the scheme, nor can the Court conclude that the advice rendered bore a 'close relationship' to the scheme. Mr. Ebel's e-mail cannot be said to have been in furtherance of a fraud or a crime. In fact, it represents sound bankruptcy advice, the kind that any good lawyer might be expected to provide a client when a client learns that her counterparty to an important business transaction has just filed for bankruptcy. This is hardly 'an extensively planned course of dealing to collude with a competitor and clandestinely transfer assets from the parent company, through transactions structured with the advice of counsel.'. . . Nor can Sands Anderson's advice be said to constitute the kind of direct, pre-fraudulent transfer advice from the law firm at issue in the In re Andrews case. Any advice that Sands Anderson gave cannot be said to be 'closely connected' to the alleged crime or fraud."; "For the foregoing reasons, the Court concludes that the Movants have not met their burden with respect to establishing the crime-fraud exception to the attorney-client privilege in this case.")

Case Date Jurisdiction State Cite Checked
2012-04-17 Federal VA

Chapter: 18.403
Case Name: In re USA Waste Mgmt. Res., L.L.C., 387 S.W.3d 92, 98 (Tex. Ct. App. 2012)
("The crime/fraud exception applies only when communications at issue or the legal services were sought or obtained in order to aid a person to commit or plan to commit a crime or fraud.")

Case Date Jurisdiction State Cite Checked
2012-01-01 State TX B 5/13

Chapter: 18.403
Case Name: Confidential Informant 59-05071 v. United States, 108 Fed. Cl. 121, 130 (Fed. Cl. 2012)
(requiring the government to provide more details on the privilege log; "However, for the crime-fraud exception to apply in the context of misconduct, the communication or document sought must have been created in furtherance of the misconduct alleged; it is not enough that it is relevant to showing the misconduct.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal Other B 9/13

Chapter: 18.403
Case Name: In re Grand Jury, 705 F.3d 133, 153 (3d Cir. 2012)
(finding the crime fraud exception applicable; "Where there is a reasonable basis to suspect that the privilege holder was committing or intending to commit a crime or fraud and that the attorney-client communications or attorney work product were used in furtherance of the alleged crime or fraud, this is enough to break the privilege.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal B 8/13

Chapter: 18.403
Case Name: In re Grand Jury, 705 F.3d 133, 151 (3d Cir. 2012)
(finding the crime fraud exception applicable; "To circumvent these privileges under the crime-fraud exception, the party seeking to overcome the privilege -- in this case, the Government -- 'must make a prima facie showing that (1) the client was committing or intending to commit a fraud or crime, and (2) the attorney-client communications were in furtherance of that alleged crime or fraud.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal B 8/13

Chapter: 18.403
Case Name: United States ex rel. Frascella v. Oracle Corp., Civ. A. No. 1:07cv529 (LMB/TRJ), 2011 U.S. Dist. LEXIS 72377, at *3 (E.D. Va. July 6, 2011)
("Under Fourth Circuit precedent, and as stated in the April 21, 2011 memorandum opinion in this case, the crime/fraud exception to the attorney-client privilege applies upon a prima facie showing '1) that defendant was engaged in or planning a criminal or fraudulent scheme and used his counsel to further the scheme, and 2) that the privileged information bears a close relationship to the criminal or fraudulent scheme.' United States ex rel. Frascella v. Oracle Corp., No. 1:07-cv-00529, 2011 U.S. Dist. LEXIS 43322 (E.D. Va. April 21, 2011) (quoting In re Galaxy Computer Servs., Inc., No. 1:04-cv-00007, 2004 U.S. Dist. LEXIS 28162, 2004 WL 3661433, at *3 (E.D. Va. March 31, 2004) (Brinkema, J.)) (internal quotation marks omitted).")

Case Date Jurisdiction State Cite Checked
2011-07-06 Federal VA B 3/16

Chapter: 18.403
Case Name: United States v. Oracle Corp., Civ. A. No. 1:07cv529 (LMB/TRJ), 2011 U.S. Dist. LEXIS 72377, at *7 (E.D. Va. July 6, 2011)
("Defendants and Reed Smith further argued at the June 21, 2011 hearing that they should be given an opportunity to demonstrate how the fact work product contained in the documents presented for in camera review did not 'further the fraud.' As detailed supra, however, the Fourth Circuit test requires a 'close relationship,' not that the fact work product 'further the fraud.' The argument is therefore inapplicable.")

Case Date Jurisdiction State Cite Checked
2011-07-06 Federal VA

Chapter: 18.403
Case Name: United States v. Oracle Corp., Civ. A. No. 1:07cv529 (LMB/TRJ), 2011 U.S. Dist. LEXIS 72377, at *5-6 (E.D. Va. July 6, 2011)
("Defendants and Reed Smith urge that a second in camera review would be required, on the ground that some documents contain and/or reflect attorney-client communications, fact work product, and opinion work product in the same document. Defendants and Reed Smith argue that the magistrate judge's review occurred in the context of attorney-client privilege, and that the magistrate judge therefore did not examine the work product contained in the documents for the 'close relationship' required by the Fourth Circuit test for crime/fraud. As the April 21, 2011 memorandum opinion indicates, however, that the magistrate judge reviewed 'documents,' not simply communications. See United States ex rel. Frascella v. Oracle Corp., No. 1:07-cv-00529, 2011 U.S. Dist. LEXIS 43322 (E.D. Va. April 21, 2011) ('Many of the documents just reviewed . . . .'; '[T]he magistrate judge refers the district judge to the documents logged with the numbers listed in the footnote.'; 'The documents reviewed in camera . . . .'; '[T]hese documents are responsive . . . . The magistrate judge finds that they likewise bear a "close relationship" to the scheme alleged.') (emphasis added). The review that has been conducted is thus sufficient to support the application of the crime/fraud exception to fact work product.")

Case Date Jurisdiction State Cite Checked
2011-07-06 Federal VA

Chapter: 18.403
Case Name: United States v. Under Seal (In re Grand Jury Investigation), 352 F. App'x 805, 809-10 (4th Cir. 2009)
("In its ex parte submission, the Government has provided the court with prima facie evidence that the Corporation, its principals and the Isle of Man Entity had an agreement to defraud the United States Government in contravention of § 371. . . . The crime-fraud exception is limited to those communications and documents in furtherance of future or ongoing criminal or fraudulent conduct. In re Grand Jury Subpoena, 419 F.3d at 343. Therefore, a party seeking access to materials via the crime-fraud exception must demonstrate a close relationship between the desired materials and an alleged criminal or fraudulent conduct. In re Grand Jury Proceedings # 5, 401 F.3d at 251. However, in making the close relationship determination, courts must take into account that the party invoking the crime-fraud exception, here the Government, does not know exactly what the material will show. See In re Grand Jury Investigation, 842 F.2d 1223, 1227 (11th Cir. 1987). Courts can base a finding of the requisite close relationship on an examination of an in camera submission of evidence by the party invoking the exception so long as the court has some evidence of the contents of the withheld material. See In re Grand Jury Proceedings, 33 F.3d at 351; cf. In re Grand Jury Proceedings # 5, 401 F.3d at 255. In making this finding we review both the Government's ex parte submission of evidence and Counsel's privilege log, which references documents from as early as 1986. The Government's evidence indicates that the Corporation's scheme to defraud the United States dates back as far as 1984 and that the Corporation sought Counsel's legal advice for the sole purpose of facilitating its scheme to defraud the United States. Therefore, all of the withheld documents bear the requisite close relationship to the alleged violation of § 371 because they were in furtherance of the alleged scheme. We conclude that the Government has made a prima facie showing that there is a close relationship between the withheld documents and the alleged violation of § 371.")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal

Chapter: 18.403
Case Name: United States v. Under Seal (In re Grand Jury Investigation), 352 F. App'x 805, 808 (4th Cir. 2009)
("For the crime-fraud exception to apply, 'it is enough that the communication furthered, or was intended by the client to further . . . illegality.' In re Grand Jury Proceedings # 5, 401 F.3d at 251.")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal

Chapter: 18.403
Case Name: Flexible Benefits Council v. Feldman, No. 1:08cv371 (JCC), 2008 U.S. Dist. LEXIS 79226, at *13 (E.D. Va. Oct. 8, 2008)
("The crime-fraud exception excludes communications from the attorney client privilege where a client 'sought the advice of counsel' to commit or further a crime or fraud, and the privileged materials are closely related to the client's existing or future criminal or fraudulent scheme." (citation omitted))

Case Date Jurisdiction State Cite Checked
2008-10-08 Federal VA
Comment:

key case


Chapter: 18.403
Case Name: The Flexible Benefits Council v. Feldman, 1:08cv371 (JCC), 2008 U.S. Dist. LEXIS 79226, at *13 (E.D. Va. Oct. 8, 2008)
("The crime-fraud exception excludes communications from the attorney-client privilege where a client 'sought the advice of counsel' to commit or further a crime or fraud, and the privileged materials are closely related to the client's existing or future criminal or fraudulent scheme. Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999).")

Case Date Jurisdiction State Cite Checked
2008-10-08 Federal VA

Chapter: 18.403
Case Name: United States v. Smith, Crim. A. No. 3:07CR433, 2008 U.S. Dist. LEXIS 64174, at *11 (E.D. Va. Aug. 21, 2008)
(finding that the crime-fraud exception does not apply to a criminal defendant's lawyer's showing to the defendant of a video that disclosed the identity of an informant who was later killed; finding that the crime-fraud exception did not apply; "No evidence exists that the Defendant was engaged in or planning the offense for which he currently stands indicted at the time he retained Mr. Said or when Mr. Said showed him the video. Moreover, the government does not contend that the Defendant sought legal advice to further the federal offense for which he was subsequently indicted. Accordingly, the Court will deny the Government's Motion and grant the Motion to Quash as they relate to testimony concerning any confidential communications made by the Defendant to Mr. Said during their attorney client relationship.")

Case Date Jurisdiction State Cite Checked
2008-08-21 Federal VA B 6/09

Chapter: 18.403
Case Name: United States v. Under Seal # 4 (In re Grand Jury Subpoena # 06-1), 274 F. App'x 306, 309-10, 309 (4th Cir. 2008) (unpublished opinion)
(assessing the crime-fraud exception; "The district court may determine whether the crime fraud exception applies in one of two ways. As the Supreme Court explained in Zolin, the court may examine the assertedly privileged documents themselves in an in camera hearing, provided that the party invoking the exception, here the Government, first makes a threshold 'showing of a factual basis adequate to support a good faith belief by a reasonable person' that the hearing would reveal evidence of crime or fraud. . . . Alternatively, the district court may 'examine[] evidence from the opponent of the privilege,' here the Government, 'ex parte and in camera without examining the allegedly privileged documents themselves.' . . . Under this approach, the Government would not be required to make a threshold showing regarding the factual basis for application of the exception prior to making the in camera submission. . . . In either case, however, on remand the Government bears the burden of establishing a prima facie case demonstrating that the crime fraud exception applies."; "[T]he Government has made a colorable argument that the crime fraud exception would apply to the withheld communications. We find it appropriate, therefore, to vacate the district court's order and remand the case to allow the court to consider the Government's contention that 'the client was engaged in or planning a criminal or fraudulent scheme when he sought the advise [sic] of counsel to further the scheme' and that those communications 'bear a close relationship to the client's existing or future scheme to commit a crime or fraud.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2008-01-01 Federal B 6/09; n

Chapter: 18.403
Case Name: United States v. Lentz, 524 F.3d 501, 525 (4th Cir. 2008)
(finding that the crime-fraud exception applied; "Because the telephone calls were made for the purpose of furthering, advancing, or promoting Lentz's plan to commit criminal activity and not, as asserted by Lentz, to seek legitimate legal advice on how to extricate himself from a murder for hire plot hatched by Jackmon or obtain assistance and assurance that he should cease contact with the latter, they are not protected by the privilege. To his credit, Salvato did advise Lentz to extricate himself from the situation and cease contact with Jackmon, but that advice was anything but what Lentz was seeking or hoping to get from him.")

Case Date Jurisdiction State Cite Checked
2008-01-01 Federal B 6/09

Chapter: 18.403
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 255 (4th Cir. 2005)
("Despite this finding, under prong two of the exception, Intervenors' privileged communications must bear a close relationship to their existing or future scheme to commit a crime or fraud. The communications subpoenaed in this case consist of both documents and testimony. As to the documents, we find that under the 'close relationship' standard, the district court abused its discretion. The district court simply could not have concluded that any sort of relationship exists between the allegedly privileged documents and the alleged crime because it was presented with no evidence of the contents of these documents.")

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal

Chapter: 18.403
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251 (4th Cir. 2005)
("Specifically, we have held that the party invoking the crime-fraud exception must make a prima facie showing that (1) the client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme, and (2) the documents containing the privileged materials bear a close relationship to the client's existing or future scheme to commit a crime or fraud. . . . Prong one of this test is satisfied by a prima facie showing of evidence that, if believed by a trier of fact, would establish the elements of some violation that was ongoing or about to be committed. . . . Prong two may be satisfied with a showing of a close relationship between the attorney-client communications and the possible criminal or fraudulent activity.")

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 18.403
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 255 (4th Cir. 2005)
(holding that the district court could not have applied the crime-fraud exception because it did not review the documents in camera, and therefore could not have concluded that the privileged communications bore a "close relationship to their existing or future scheme to commit a crime or fraud"; remanding for the court to conduct an in camera review or otherwise analyze the crime-fraud exception properly)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 18.403
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 287 (E.D. Va. 2004)
(after finding that the crime/fraud exception applied, announcing that the court would review documents in camera to determine if "the sought-after documents bear a close relationship to Rambus' spoliation scheme"; finding that the court "will conduct an in camera review of the privileged documents to determine whether the documents themselves give rise to a prima facie case of spoliation sufficient to support application of the crime/fraud exception")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 18.403
Case Name: Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999)
("Appellants, as the party asserting the crime/fraud exception, must make a prima facie showing that the privileged communications fall within the exception. Appellants must prove that '(1) the client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme and (2) the documents containing [the privileged materials] . . . bear a close relationship to the client's existing or future scheme to commit a crime or fraud.'"), cert. denied, 120 S. Ct. 215 (1999)

Case Date Jurisdiction State Cite Checked
1999-01-01 Federal

Chapter: 18.404
Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "The first six questions call for answers regarding communications that have, at the very least, 'some relationship' with the 'prima facie violation' of law.")

Case Date Jurisdiction State Cite Checked
2017-10-02 Federal DC

Chapter: 18.404
Case Name: In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liability Litig., Master File No. 1:00-1898, MDL 1358 (SAS), 2016 U.S. Dist. LEXIS 46294, at *18-19, *20 (S.D.N.Y. Apr. 4, 2016)
("I find sufficient factual support for the allegation that the GPMI restructuring was a fraudulent scheme to deprive creditors of GPMI's [wholly owned subsidiary of LAC] profitable assets. The very nature of the asset transfer from GPMI to LNA [LUKOIL North America] is suspicious. LAC [defendant] transferred all of the GPMI stock to LNA, then GPMI sold its profitable assets to LNA, and finally LNA transferred all of GPMI's stock back to LAC. This all occurred in seventeen days from November 13, 2009 to November 30, 2009, and LAC does not provide any explanation for the structure of the transaction. An expert testified at the bankruptcy proceedings that GPMI was insolvent after the asset transfer, contrary to LAC's assertion that the arbitration award drove GPMI into bankruptcy." (footnotes omitted); "LAC argues that the legal advice provided by Lewis is not 'in furtherance' of the alleged wrongdoing because the email chain does not concern the 'restructuring itself.' This argument also fails. Lewis' advice, understood in the context of fraudulent asset stripping, is advice on how to prevent others from learning of that fraud by controlling who holds the attorney-client privilege. Indeed, the issue of which entity held the privilege would only be relevant in the event of the contemplated sale of GPMI which is explicitly referenced in the emails. Lewis' advice encourages, enables, and is in furtherance of the alleged wrongdoing." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2016-04-04 Federal NY B 8/16

Chapter: 18.404
Case Name: In re Subpoena to Testify Before Grand Jury, Case No. 15-mc-80207-JSC, 2015 U.S. Dist. LEXIS 122305 (N.D. Cal. Sept. 14, 2015)
("A party seeking disclosure of attorney-client communications or attorney work product under the crime-fraud exception bears the burden of demonstrating that the privilege does not apply. Specifically, '[a] party seeking to vitiate the attorney-client privilege [or work product doctrine] under the crime-fraud exception must satisfy a two-part test.'. . . First, the party must show that 'the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme.'. . . 'Second, it must demonstrate that the attorney-client communications for which production is sought are 'sufficiently related to' and were made 'in furtherance of [the] intended, or present, continuing illegality.'").

Case Date Jurisdiction State Cite Checked
2015-09-14 Federal CA

Chapter: 18.404
Case Name: Apple Inc. v. Samsung Electronics Co., Ltd., Case No.: 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386 (N.D. Cal. April 3, 2015)
(analyzing the effect of Samsung's defense of admitted disclosure of confidential information about non-party Nokia; "'Apple also argues the crime-fraud exception applies to the seven offered documents it seeks to compel. The crime-fraud exception bars a party from maintaining privilege over attorney-client communications that are 'sufficiently related to' or 'in furtherance' of an unlawful act. . . . There is precedent, at least in other circuits, holding that violations of a protective order are akin to law breaking such that communications giving rise to protective order violations fall within the crime-fraud exception. . . . This court need not resolve that question here.'")

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal CA

Chapter: 18.404
Case Name: United States v. Ceglia, Case No. 1:12-cr-00876-VSB, Doc. 166 (S.D.N.Y. March 30, 2015)
(finding the crime-fraud exception applicable to communications to and from the law firms of DLA Piper and Kasowitz Benson a plaintiff who created a false document in claiming that Mark Zuckerberg promised him joint ownership of Facebook; "[A] part wishing to invoke the crime-fraud exception to the attorney-client privilege must demonstrate that there is a factual basis for a showing of probable cause to believe that a crime or fraud has been committed and that the communications at issue were in furtherance of the crime or fraud. However, a special prima facie showing is required where 'the very act of litigating is alleged as being in furtherance of a fraud.'. . . I have already concluded, as did Judge Carter, that the Government has made a prima facie showing of probable cause that Ceglia's lawsuit had little or no factual or legal basis and was carried on substantially to further a fraud."; "The prima facie showing having been made, I then can exercise my discretion to conduct an in camera review of the materials subject to the claim of privilege. See Jacobs, 117 F.3d at 87. Next, I must make a factual finding whether the specific documents I review actually fall within the crime-fraud exception. . . . The crime-fraud exception strips the privilege from only those communications or work product 'that relate to client communications in furtherance of contemplated or ongoing criminal or fraudulent conduct.'. . . There must be a 'purposeful nexus' between the communication or document and the fraudulent activity. . . . The communication or document 'need only reasonably relate' to the subject matter of the purported fraud. . . . Attorney communications and work product may be in furtherance of a crime or fraud even if the attorney is unaware of the client's ill intent.")

Case Date Jurisdiction State Cite Checked
2015-03-30 Federal NY

Chapter: 18.404
Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *24 (N.D. Ohio Aug. 8, 2013)
("The Sixth Circuit applies a two-part test to determine whether the crime-fraud exception should be invoked. First, the party seeking disclosure must make a prima facie showing that a serious crime or fraud occurred. . . . Second, the party must also establish a relationship between the communication at issue and the prima facie violation.")

Case Date Jurisdiction State Cite Checked
2013-08-08 Federal OH B 4/14

Chapter: 18.404
Case Name: In re Grand Jury Subpoena, G.J. No. 10-127-02, 2013 U.S. Dist. LEXIS 8127 (E.D. Pa. Jan. 18, 2013)
March 13, 2013 (PRIVILEGE POINT)

"Courts Apply the Crime-Fraud Exception"

Every court recognizes that neither the attorney-client privilege nor the work product doctrine should protect communications that further the client's criminal or fraudulent conduct. Although courts differ on some of the elements of the "crime-fraud" exception, they agree on some basic concepts.

In Everflow Technology Corp. v. Millennium Electronics, Inc., the court pointed to a California evidence rule stripping privilege and work product protection from communications if the moving party establishes "a prima facie case of crime or fraud," and "a reasonable relationship between the crime or fraud and the attorney-client communication." No. C07-05795 HRL, 2013 U.S. Dist. LEXIS 4810, at *5 (N.D. Cal. Jan. 11, 2013) (not for citation). The court found that plaintiff had carried this burden. At nearly the same time, the District of Nebraska declined to apply the crime-fraud exception, concluding that plaintiffs "have not offered sufficient evidence to show a factual basis adequate to support a good faith belief by a reasonable person that the crime-fraud exception applies." Davis v. Hugo Enters., LLC, No. 8:11CV221, 2013 U.S. Dist. LEXIS 3357, at *11 (D. Neb. Jan. 9, 2013). A week later, the Eastern District of Pennsylvania found that the government had satisfied its burden, and ordered grand jury targets' lawyer to testify about his conversations with his clients. In re Grand Jury Subpoena, G.J. No. 10-127-02, 2013 U.S. Dist. LEXIS 8127 (E.D. Pa. Jan. 18, 2013). As in Everflow Technology, the Grand Jury court articulated another universally applied rule: "The crime-fraud exception applies whether or not the attorney was actually aware that his or her advice was being used for nefarious purposes." Id. At *10.

Litigants should remember that merely alleging an adversary's crime or fraud does not result in forfeiture of privilege or work product protection. On the other hand, no court requires a litigant to actually prove the adversary's criminal guilt or fraud liability.

Case Date Jurisdiction State Cite Checked
2013-01-18 Federal PA
Comment:

key case


Chapter: 18.404
Case Name: Everflow Technology Corp. v. Millennium Electronics, Inc., No. C07-05795 HRL, 2013 U.S. Dist. LEXIS 4810, at *5 (N.D. Cal. Jan. 11, 2013)
March 13, 2013 (PRIVILEGE POINT)

"Courts Apply the Crime-Fraud Exception"

Every court recognizes that neither the attorney-client privilege nor the work product doctrine should protect communications that further the client's criminal or fraudulent conduct. Although courts differ on some of the elements of the "crime-fraud" exception, they agree on some basic concepts.

In Everflow Technology Corp. v. Millennium Electronics, Inc., the court pointed to a California evidence rule stripping privilege and work product protection from communications if the moving party establishes "a prima facie case of crime or fraud," and "a reasonable relationship between the crime or fraud and the attorney-client communication." No. C07-05795 HRL, 2013 U.S. Dist. LEXIS 4810, at *5 (N.D. Cal. Jan. 11, 2013) (not for citation). The court found that plaintiff had carried this burden. At nearly the same time, the District of Nebraska declined to apply the crime-fraud exception, concluding that plaintiffs "have not offered sufficient evidence to show a factual basis adequate to support a good faith belief by a reasonable person that the crime-fraud exception applies." Davis v. Hugo Enters., LLC, No. 8:11CV221, 2013 U.S. Dist. LEXIS 3357, at *11 (D. Neb. Jan. 9, 2013). A week later, the Eastern District of Pennsylvania found that the government had satisfied its burden, and ordered grand jury targets' lawyer to testify about his conversations with his clients. In re Grand Jury Subpoena, G.J. No. 10-127-02, 2013 U.S. Dist. LEXIS 8127 (E.D. Pa. Jan. 18, 2013). As in Everflow Technology, the Grand Jury court articulated another universally applied rule: "The crime-fraud exception applies whether or not the attorney was actually aware that his or her advice was being used for nefarious purposes." Id. At *10.

Litigants should remember that merely alleging an adversary's crime or fraud does not result in forfeiture of privilege or work product protection. On the other hand, no court requires a litigant to actually prove the adversary's criminal guilt or fraud liability.

Case Date Jurisdiction State Cite Checked
2013-01-11 Federal CA
Comment:

key case


Chapter: 18.404
Case Name: Everflow Tech. Corp. v. Millennium Elecs., Inc., No. C07 05795 HRL, 2013 U.S. Dist. LEXIS 4810, at *4-5 (N.D. Cal. Jan. 11, 2013)
("The crime-fraud exception is 'very limited,' and its proponent must make two showings. . . . First, it must establish a prima facie case of crime or fraud. . . . Second, it must establish a reasonable relationship between the crime or fraud and the attorney-client communication.")

Case Date Jurisdiction State Cite Checked
2013-01-11 Federal CA B 7/13

Chapter: 18.404
Case Name: Davis v. Hugo Enters., LLC, No. 8:11CV221, 2013 U.S. Dist. LEXIS 3357, at *11 (D. Neb. Jan. 9, 2013)
March 13, 2013 (PRIVILEGE POINT)

"Courts Apply the Crime-Fraud Exception"

Every court recognizes that neither the attorney-client privilege nor the work product doctrine should protect communications that further the client's criminal or fraudulent conduct. Although courts differ on some of the elements of the "crime-fraud" exception, they agree on some basic concepts.

In Everflow Technology Corp. v. Millennium Electronics, Inc., the court pointed to a California evidence rule stripping privilege and work product protection from communications if the moving party establishes "a prima facie case of crime or fraud," and "a reasonable relationship between the crime or fraud and the attorney-client communication." No. C07-05795 HRL, 2013 U.S. Dist. LEXIS 4810, at *5 (N.D. Cal. Jan. 11, 2013) (not for citation). The court found that plaintiff had carried this burden. At nearly the same time, the District of Nebraska declined to apply the crime-fraud exception, concluding that plaintiffs "have not offered sufficient evidence to show a factual basis adequate to support a good faith belief by a reasonable person that the crime-fraud exception applies." Davis v. Hugo Enters., LLC, No. 8:11CV221, 2013 U.S. Dist. LEXIS 3357, at *11 (D. Neb. Jan. 9, 2013). A week later, the Eastern District of Pennsylvania found that the government had satisfied its burden, and ordered grand jury targets' lawyer to testify about his conversations with his clients. In re Grand Jury Subpoena, G.J. No. 10-127-02, 2013 U.S. Dist. LEXIS 8127 (E.D. Pa. Jan. 18, 2013). As in Everflow Technology, the Grand Jury court articulated another universally applied rule: "The crime-fraud exception applies whether or not the attorney was actually aware that his or her advice was being used for nefarious purposes." Id. At *10.

Litigants should remember that merely alleging an adversary's crime or fraud does not result in forfeiture of privilege or work product protection. On the other hand, no court requires a litigant to actually prove the adversary's criminal guilt or fraud liability.

Case Date Jurisdiction State Cite Checked
2013-01-09 Federal NE
Comment:

key case


Chapter: 18.404
Case Name: In re USA Waste Mgmt. Res., L.L.C., 387 S.W.3d 92, 98 (Tex. Ct. App. 2012)
("A party who asserts the crime/fraud exception must show: (1) a prima facie case of the contemplated crime or fraud; and (2) a nexus between the communications at issue and the crime or fraud.")

Case Date Jurisdiction State Cite Checked
2012-01-01 State TX B 5/13

Chapter: 18.404
Case Name: Confidential Informant 59-05071 v. United States, 108 Fed. Cl. 121, 130 (Fed. Cl. 2012)
(requiring the government to provide more details on the privilege log; "The United States Court of Appeals for the Federal Circuit has indicated that the crime-fraud exception is broad enough to encompass documents that are 'incident' to alleged 'fundamental misconduct.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal Other B 9/13

Chapter: 18.404
Case Name: Webb v. Joiner, Case No. CL03-312, 2006 Va. Cir. LEXIS 241 (Roanoke Cty., Va. Cir. Ct. July 17, 2006)
(finding the crime-fraud exception applicable to documents which contradict earlier testimony; "A confidential communication made by a client to his attorney under any of these protections is privileged from disclosure provided it is not made in perpetration of a fraud."; "In this case, defendant physician's testimony at his deposition concerning matters surrounding the alleged malpractice was different from the actions he described in the handwritten memo to his insurance carrier. The obvious conclusion is that the defendant physician either made, or appeared to have made, a material misrepresentation of fact with intent to mislead. The making, or just the appearance of making, an intentional misrepresentation with intent to mislead, during or in contemplation of litigation, is not protected by the rules regarding privileged communications or the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2006-07-17 State VA

Chapter: 18.404
Case Name: Sevachko v. Commonwealth, 35 Va. App. 346, 356, 357-58 (2001)
(assessing a privilege claim for statements a criminal defendant made to his lawyer; holding "that Sevachko's disclosure to his attorney that he was driving on the date of the charged offense was made in relation to and during the course of the attorney's representation of her client and that the communication was confidential and privileged and not subject to disclosure. See Edwards, 235 Va. at 508-09, 370 S.E.2d at 301. However, we hold that Sevachko's disclosure to his attorney that he was going to testify untruthfully that he was not driving was not privileged, and, thus, the statement was admissible under the crime-fraud exception to the privilege."; "Here, Sevachko's disclosure to his attorney regarding his intent to commit perjury was made prior to trial and in contemplation of committing perjury and a fraud upon the court. The privilege does not permit a litigant to commit a fraud upon a court and, therefore, to that end, the privilege does not apply to communications, which if not revealed would hamper the administration of justice. See Gunter, 212 Va. at 287-88, 183 S.E.2d at 719. Accordingly, the attorney-client privilege did not attach to Sevachko's statement to his attorney pertaining to his intent to commit perjury; therefore, the statement was admissible in the perjury prosecution.")

Case Date Jurisdiction State Cite Checked
2001-01-01 State VA

Chapter: 18.501
Case Name: Adidas America, Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2018 U.S. Dist. LEXIS 164159 (D. Ore. Sept. 25, 2018)
(finding the crime-fraud exception applicable; inexplicably ordering production of a category of documents rather than analyzing the documents one at a time; "Plaintiffs argue that the Court should only consider the intent of the declarant (outside counsel), or possibly the person responsible for the filing and who directed outside counsel . . . the 'registrant' here is Reebok. Further, from a policy standpoint, it makes little sense to consider only the signatory's knowledge and intent. Under Plaintiffs' approach, a registrant could engage in fraudulent conduct but keep outside counsel in the dark, and would then be able to engage in fraud on the PTO with impunity. The Court thus considers Reebok's knowledge and intent, not just outside counsel's or Ms. Han's.")

Case Date Jurisdiction State Cite Checked
2018-09-25 Federal OR

Chapter: 18.501
Case Name: Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, Adv. Pro. No. 08-01789 (SMB), Adv. Pro. No. 10-04216 (SMB), 2017 Bankr. LEXIS 519 (S.D.N.Y. Feb. 17, 2017)
("Notably, the crime-fraud exception does not rest on the principle that a client who seeks advice in furtherance of a planned or ongoing fraud thereby waives the right to rely on the attorney-client privilege. Instead, the crime-fraud exception arises out of the judiciary's recognition that the attorney-client privilege exists so that clients may confidentially seek 'sound legal advice.' In re Grand Jury Subpoena dated Sept. 15, 1983, 731 F.2d at 1038. As the Second Circuit has observed, 'advice in furtherance of a fraudulent or unlawful goal cannot be considered 'sound.' Id. Rather, such advice is 'socially perverse.' Id. It follows that courts should not extend the protections of the attorney-client privilege to such advice."; "Indeed, in Duttle, Magistrate Judge Francis went so far as to conclude, based upon the decision in In re Grand Jury Subpoena, that 'legal advice that furthers a fraudulent goal is not privileged, regardless of the innocence of the client seeking the advice.'"; "From the foregoing, is seems apparent that the issue in this proceeding is not one of waiver. There is, in fact, no suggestion that either Ms. Crupi or Ms. Bowen has been asked to waive her privilege with respect to the Guston & Guston documents. Nonetheless, because the Trustee has established that there is substantial reason to believe that Ms. Crupi was seeking advice from Guston & Guston in furtherance of actual or planned fraudulent activity, the Trustee is entitled to the production of the documents that would otherwise be privileged concerning the Defendants' purchase of the Mantoloking house. That Ms. Bowen may not have been involved in the fraudulent scheme does not alter this result.")

Case Date Jurisdiction State Cite Checked
2017-02-17 Federal NY

Chapter: 18.501
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251 (4th Cir. 2005)
("When applying the crime-fraud exception to the attorney-client privilege, we have held that it is the client's knowledge and intentions that are of paramount concern because the client is the holder of the privilege. . . . Therefore, for the exception to apply, the attorney need not be aware of the illegality involved. . . . Rather, 'it is enough that the communication furthered, or was intended by the client to further, that illegality.' . . . (internal citations omitted).")

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 18.502
Case Name: Fragin v. First Funds Holdings LLC, 652673/2014, 2016 N.Y. Misc. LEXIS 2970 (N.Y. Sup. Ct. Aug. 11, 2016)
(finding the crime-fraud exception applicable to communications to and from the law firm of Moses & Singer, despite that firm's lack of intent to commit wrongdoing; "The seventeen documents produced in camera for the Court's review likewise contain communications made in furtherance of the alleged fraudulent conveyance and fraud. By this, the Court does not find for the purpose of this motion that Moses & Singer attorneys knowingly participated in Mezei's allegedly fraudulent conduct. Such a showing is not required. . . . Instead, the documents demonstrate work by Moses & Singer attorneys at Mezei and Cohen's behest, and on Mezei and Cohen's behalf, in furtherance of the asset transfer, which as addressed above, satisfies the first prong of the crime-fraud exception test. These documents include drafts of the asset purchase agreement, related emails and handwritten notes, as well as communications related to the name swap that occurred as a result of the asset transfer. Accordingly, Fragin has satisfied the second requisite element of the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2016-08-11 Federal NY
Comment:

key case


Chapter: 18.502
Case Name: Fragin v. First Funds Holdings LLC, No. 652673/2014, 2016 N.Y. Slip Op. 31537(U) (N.Y. Sup. Ct. Aug. 11, 2016)
October 26, 2016 (PRIVILEGE POINT)

"The Crime-Fraud Exception Can Apply to Innocent Lawyers' Communications"

The crime-fraud exception can strip away privilege protection from communications in which lawyers further their clients' future wrongful conduct. Under the majority approach, the adversary must (1) first meet a fairly low threshold justifying courts' in camera review of the pertinent documents, and (2) then meet a higher standard to overcome the otherwise applicable privilege. What role does lawyers' knowledge play in this analysis?

In Fragin v. First Funds Holdings LLC, No. 652673/2014, 2016 N.Y. Slip Op. 31537(U) (N.Y. Sup. Ct. Aug. 11, 2016), plaintiff sued defendant investment advisor and its law firm (Moses & Singer) for fraud and breach of contract. Moses & Singer asserted privilege and work product protection in withholding documents and refusing to allow two of its attorneys to answer certain deposition questions. Plaintiff invoked "the crime-fraud exception." Id. at *1. The court found that plaintiff established probable cause that he had been defrauded, and then reviewed seventeen withheld documents in camera. The court concluded that the documents "contain communications made in furtherance of the alleged fraudulent conveyance and fraud." Id. at *10. The court ordered Moses & Singer to produce the withheld documents and its two lawyers to answer the deposition questions. Significantly, "the Court does not find . . . that Moses & Singer attorneys knowingly participated in [defendant's] allegedly fraudulent conduct" — emphasizing that "[s]uch a showing is not required." Id.

Although nonlawyers might think less of a law firm if its communications were found to have furthered clients' criminal or fraudulent conduct, innocent lawyers may find their communications stripped of privilege or work product protection. This highlights yet another reason for lawyers to watch what they write.

Case Date Jurisdiction State Cite Checked
2016-08-11 Federal NY B 10/16
Comment:

key case


Chapter: 18.502
Case Name: United States v. Gorski, Nos. 14-1963, 14-1964, 14-2074, 2015 U.S. App. LEXIS 21302 (1st Cir. App. Dec. 9, 2015)
(analyzing interlocutory appeals and the crime-fraud exception; concluding the individual defendant cannot pursue an interlocutory appeal, but that a non-party could rely on the Perlman doctrine; finding that the crime-fraud exception applied to communications to and from Mintz Levin, and remanding for the trial court's review of certain documents to determine if the exception applied to them; "Legion argues that even if the above were true, the production order was overbroad because the district court did not conduct a document-by-document review to determine specifically which communications and documents were in furtherance of the criminal or fraudulent conduct. However, the district court made it clear in a status conference following the order that its decision was the result of 'a document-by-document review.' We too have reviewed the documents. The district court could have done a document-by-document analysis and still readily concluded that all of the documents from Mintz Levin fell within the crime-fraud exception based on a reasonable inference that the entire scope of the representation was intended by Gorski to further the crime or fraud. Gorski's ongoing scheme required Legion to be structured to maintain the appearance of compliance with SDVOSB regulations, and the entire scope of Mintz Levin's representation was related to the 2010 restructuring. As such, there was a reasonable basis to conclude that there was a complete congruence between everything Mintz Levin did and the fraudulent purpose by Gorski that triggers the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2015-12-09 Federal MA
Comment:

key case


Chapter: 18.502
Case Name: United States v. Gorski, Nos. 14-1963, 14-1964, 14-2074, 2015 U.S. App. LEXIS 21302 (1st Cir. App. Dec. 9, 2015)
(analyzing interlocutory appeals and the crime-fraud exception; concluding the individual defendant cannot pursue an interlocutory appeal, but that a non-party could rely on the Perlman doctrine; finding that the crime-fraud exception applied to communications to and from Mintz Levin, and remanding for the trial court's review of certain documents to determine if the exception applied to them; "Our decision that a prima facie case for the crime-fraud exception has been made does not reflect a finding on the ultimate question of whether Gorski acted wrongfully. . . . Nor does it bear on the conduct or intent of the lawyers involved, because the crime-fraud exception is triggered by the intent of the client.")

Case Date Jurisdiction State Cite Checked
2015-12-09 Federal MA

Chapter: 18.502
Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015)
(analyzing the crime-fraud exception; "The intent requirement does not apply to the attorney; the attorney need not have any knowledge of the crime or fraud.")

Case Date Jurisdiction State Cite Checked
2015-06-09 Federal CA

Chapter: 18.502
Case Name: Plaza Insurance Company v. Lester, Civ. A. No. 14-cv-01162-LTB-CBS, 2015 U.S. Dist. LEXIS 72438, 2015 U.S. Dist. LEXIS 72438 (D.D.C. June 4, 2015)
(finding the crime-fraud exception applicable; "It is not necessary to show that the attorney from whom the client received advice was a knowing participant in the fraudulent conduct or was otherwise culpable.")

Case Date Jurisdiction State Cite Checked
2015-06-04 Federal DC

Chapter: 18.502
Case Name: United States v. Weed, Crim. No. 14-cr-10348-DPW, 2015 U.S. Dist. LEXIS 52538 (D. Mass. April 14, 2015)
(finding the crime-fraud exception applicable; "The exception is not dependent on the intent of the attorney.")

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal MA

Chapter: 18.502
Case Name: United States v. Ceglia, Case No. 1:12-cr-00876-VSB, Doc. 166 (S.D.N.Y. March 30, 2015)
(finding the crime-fraud exception applicable to communications to and from the law firms of DLA Piper and Kasowitz Benson a plaintiff who created a false document in claiming that Mark Zuckerberg promised him joint ownership of Facebook; "[A] part wishing to invoke the crime-fraud exception to the attorney-client privilege must demonstrate that there is a factual basis for a showing of probable cause to believe that a crime or fraud has been committed and that the communications at issue were in furtherance of the crime or fraud. However, a special prima facie showing is required where 'the very act of litigating is alleged as being in furtherance of a fraud.'. . . I have already concluded, as did Judge Carter, that the Government has made a prima facie showing of probable cause that Ceglia's lawsuit had little or no factual or legal basis and was carried on substantially to further a fraud."; "The prima facie showing having been made, I then can exercise my discretion to conduct an in camera review of the materials subject to the claim of privilege. See Jacobs, 117 F.3d at 87. Next, I must make a factual finding whether the specific documents I review actually fall within the crime-fraud exception. . . . The crime-fraud exception strips the privilege from only those communications or work product 'that relate to client communications in furtherance of contemplated or ongoing criminal or fraudulent conduct.'. . . There must be a 'purposeful nexus' between the communication or document and the fraudulent activity. . . . The communication or document 'need only reasonably relate' to the subject matter of the purported fraud. . . . Attorney communications and work product may be in furtherance of a crime or fraud even if the attorney is unaware of the client's ill intent.")

Case Date Jurisdiction State Cite Checked
2015-03-30 Federal NY

Chapter: 18.502
Case Name: United States v. Ceglia, Case No. 1:12-cr-876 (VSB), 2015 U.S. Dist. LEXIS 45027 (S.D.N.Y. Mar. 8, 2015)
May 27, 2015 (PRIVILEGE POINT)

“The Crime-Fraud Exception Does Not Depend on Lawyers' Misconduct”

The so-called "crime-fraud exception" can strip away privilege protection from otherwise privileged communications that further clients' future criminal or fraudulent conduct.

In United States v. Ceglia, Case No. 1:12-cr-876 (VSB), 2015 U.S. Dist. LEXIS 45027 (S.D.N.Y. Mar. 8, 2015), the court addressed the government's crime-fraud exception argument in its prosecution of Paul Ceglia — who allegedly forged a contract supporting his claim that Mark Zuckerberg promised him fifty percent ownership of Facebook. The government sought communications between defendant Ceglia and his law firms DLA Piper and Kasowitz Benson. The court ultimately found the crime-fraud exception applicable — after deliberately noting that "[a]ttorney communications and work product may be in furtherance of a crime or fraud even if the attorney is unaware of the client's ill intent." Id. at *12.

A nonlawyer reading headlines in such a highly-publicized criminal action might jump to the wrong conclusion upon learning that communications with DLA Piper and Kasowitz Benson lost their privilege protection under the crime-fraud exception. However, even innocent lawyers might find that clients have used their services for nefarious purposes.

Case Date Jurisdiction State Cite Checked
2015-03-08 Federal NY
Comment:

key case


Chapter: 18.502
Case Name: United States v. Harris, Crim. No. 2:14cr76, 2014 U.S. LEXIS 140333 (E.D. Va. Oct. 1, 2014)
(analyzing the crime-fraud exception; pointing to In re Grand Jury Proceedings #5, 401 F.3d at 251; "In determining whether the crime-fraud exception to the attorney-client privilege applies in a given case, 'it is the client's knowledge and intentions that are of paramount concern,' and the exception can apply even if the attorney is unaware of the client's ongoing crime or fraud. . . . The operative question, therefore, is whether 'the communication furthered, or was intended by the client to further' the client's fraudulent or illegal purpose.")

Case Date Jurisdiction State Cite Checked
2014-10-01 Federal VA

Chapter: 18.502
Case Name: In re Cutuli, Ch. 7 Case No. 11-35256-BKC-AJC, 2013 Bankr. LEXIS 3843, at *12, *16 (S.D. Fla. Sept. 13, 2013)
(holding that a trustee for a bankrupt individual could obtain the files of a lawyer who jointly represented the now-bankrupt individual and her husband; "[T]he Trustee has demonstrated that the Debtor and Greg Cutuli attempted to defraud creditors by transferring and hiding assets at or before the time The Andersen Law Firm was consulted, and that they may very well have used the services of The Andersen Firm to further a scheme to defraud."; "Whether The Andersen Firm was aware of the reasons the Debtor and Greg Cutuli used their services is not relevant to the application of the crime-fraud exception and this Court makes no finding on that issue.")

Case Date Jurisdiction State Cite Checked
2013-09-13 Federal FL B 4/14

Chapter: 18.502
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 36353, at *9-10 (S.D.N.Y. Mar. 15, 2013)
(ordering the law firm of Patton Boggs to produce documents to Chevron based on the crime-fraud exception; "It is important to recognize that the crime-fraud exception to work product protection and the attorney-client privilege is established where there is 'probable cause to believe that a fraud or crime has been committed [by someone] and that the communications in question were in furtherance of the fraud or crime.' If probable cause exists as to the commission of a fraud or crime, it is not necessary to show also that a lawyer from whom otherwise privileged or protected documents may be sought was a culpable or knowing participant in the fraud or crime. It therefore is unnecessary to determine for present purposes whether there is probable cause to suspect that PB or any of its personnel was a culpable or knowing participant in any alleged fraud or crime." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal NY B 3/14

Chapter: 18.502
Case Name: In re Grand Jury Subpoena, G.J. No. 10-127-02, 2013 U.S. Dist. LEXIS 8127, at *10 (E.D. Pa. Jan. 18, 2013)
analyzing the crime-fraud exception; "The crime-fraud exception applies whether or not the attorney was actually aware that his or her advice was being used for nefarious purposes.")

Case Date Jurisdiction State Cite Checked
2013-01-18 Federal PA B 7/13

Chapter: 18.502
Case Name: In re Grand Jury Subpoena, G.J. No. 10-127-02, 2013 U.S. Dist. LEXIS 8127 (E.D. Pa. Jan. 18, 2013)
March 13, 2013 (PRIVILEGE POINT)

"Courts Apply the Crime-Fraud Exception"

Every court recognizes that neither the attorney-client privilege nor the work product doctrine should protect communications that further the client's criminal or fraudulent conduct. Although courts differ on some of the elements of the "crime-fraud" exception, they agree on some basic concepts.

In Everflow Technology Corp. v. Millennium Electronics, Inc., the court pointed to a California evidence rule stripping privilege and work product protection from communications if the moving party establishes "a prima facie case of crime or fraud," and "a reasonable relationship between the crime or fraud and the attorney-client communication." No. C07-05795 HRL, 2013 U.S. Dist. LEXIS 4810, at *5 (N.D. Cal. Jan. 11, 2013) (not for citation). The court found that plaintiff had carried this burden. At nearly the same time, the District of Nebraska declined to apply the crime-fraud exception, concluding that plaintiffs "have not offered sufficient evidence to show a factual basis adequate to support a good faith belief by a reasonable person that the crime-fraud exception applies." Davis v. Hugo Enters., LLC, No. 8:11CV221, 2013 U.S. Dist. LEXIS 3357, at *11 (D. Neb. Jan. 9, 2013). A week later, the Eastern District of Pennsylvania found that the government had satisfied its burden, and ordered grand jury targets' lawyer to testify about his conversations with his clients. In re Grand Jury Subpoena, G.J. No. 10-127-02, 2013 U.S. Dist. LEXIS 8127 (E.D. Pa. Jan. 18, 2013). As in Everflow Technology, the Grand Jury court articulated another universally applied rule: "The crime-fraud exception applies whether or not the attorney was actually aware that his or her advice was being used for nefarious purposes." Id. At *10.

Litigants should remember that merely alleging an adversary's crime or fraud does not result in forfeiture of privilege or work product protection. On the other hand, no court requires a litigant to actually prove the adversary's criminal guilt or fraud liability.

Case Date Jurisdiction State Cite Checked
2013-01-18 Federal PA
Comment:

key case


Chapter: 18.502
Case Name: Everflow Technology Corp. v. Millennium Electronics, Inc., No. C07-05795 HRL, 2013 U.S. Dist. LEXIS 4810, at *5 (N.D. Cal. Jan. 11, 2013)
March 13, 2013 (PRIVILEGE POINT)

"Courts Apply the Crime-Fraud Exception"

Every court recognizes that neither the attorney-client privilege nor the work product doctrine should protect communications that further the client's criminal or fraudulent conduct. Although courts differ on some of the elements of the "crime-fraud" exception, they agree on some basic concepts.

In Everflow Technology Corp. v. Millennium Electronics, Inc., the court pointed to a California evidence rule stripping privilege and work product protection from communications if the moving party establishes "a prima facie case of crime or fraud," and "a reasonable relationship between the crime or fraud and the attorney-client communication." No. C07-05795 HRL, 2013 U.S. Dist. LEXIS 4810, at *5 (N.D. Cal. Jan. 11, 2013) (not for citation). The court found that plaintiff had carried this burden. At nearly the same time, the District of Nebraska declined to apply the crime-fraud exception, concluding that plaintiffs "have not offered sufficient evidence to show a factual basis adequate to support a good faith belief by a reasonable person that the crime-fraud exception applies." Davis v. Hugo Enters., LLC, No. 8:11CV221, 2013 U.S. Dist. LEXIS 3357, at *11 (D. Neb. Jan. 9, 2013). A week later, the Eastern District of Pennsylvania found that the government had satisfied its burden, and ordered grand jury targets' lawyer to testify about his conversations with his clients. In re Grand Jury Subpoena, G.J. No. 10-127-02, 2013 U.S. Dist. LEXIS 8127 (E.D. Pa. Jan. 18, 2013). As in Everflow Technology, the Grand Jury court articulated another universally applied rule: "The crime-fraud exception applies whether or not the attorney was actually aware that his or her advice was being used for nefarious purposes." Id. At *10.

Litigants should remember that merely alleging an adversary's crime or fraud does not result in forfeiture of privilege or work product protection. On the other hand, no court requires a litigant to actually prove the adversary's criminal guilt or fraud liability.

Case Date Jurisdiction State Cite Checked
2013-01-11 Federal CA
Comment:

key case


Chapter: 18.502
Case Name: Everflow Tech. Corp. v. Millennium Elecs., Inc., No. C07 05795 HRL, 2013 U.S. Dist. LEXIS 4810, at *4 (N.D. Cal. Jan. 11, 2013)
("Under Evidence Code § 956, the lawyer does not have to be aware of the fraud for the crime-fraud exception to apply. Instead, the application of the exception turns on the client's intent.")

Case Date Jurisdiction State Cite Checked
2013-01-11 Federal CA B 7/13

Chapter: 18.502
Case Name: Davis v. Hugo Enters., LLC, No. 8:11CV221, 2013 U.S. Dist. LEXIS 3357, at *11 (D. Neb. Jan. 9, 2013)
March 13, 2013 (PRIVILEGE POINT)

"Courts Apply the Crime-Fraud Exception"

Every court recognizes that neither the attorney-client privilege nor the work product doctrine should protect communications that further the client's criminal or fraudulent conduct. Although courts differ on some of the elements of the "crime-fraud" exception, they agree on some basic concepts.

In Everflow Technology Corp. v. Millennium Electronics, Inc., the court pointed to a California evidence rule stripping privilege and work product protection from communications if the moving party establishes "a prima facie case of crime or fraud," and "a reasonable relationship between the crime or fraud and the attorney-client communication." No. C07-05795 HRL, 2013 U.S. Dist. LEXIS 4810, at *5 (N.D. Cal. Jan. 11, 2013) (not for citation). The court found that plaintiff had carried this burden. At nearly the same time, the District of Nebraska declined to apply the crime-fraud exception, concluding that plaintiffs "have not offered sufficient evidence to show a factual basis adequate to support a good faith belief by a reasonable person that the crime-fraud exception applies." Davis v. Hugo Enters., LLC, No. 8:11CV221, 2013 U.S. Dist. LEXIS 3357, at *11 (D. Neb. Jan. 9, 2013). A week later, the Eastern District of Pennsylvania found that the government had satisfied its burden, and ordered grand jury targets' lawyer to testify about his conversations with his clients. In re Grand Jury Subpoena, G.J. No. 10-127-02, 2013 U.S. Dist. LEXIS 8127 (E.D. Pa. Jan. 18, 2013). As in Everflow Technology, the Grand Jury court articulated another universally applied rule: "The crime-fraud exception applies whether or not the attorney was actually aware that his or her advice was being used for nefarious purposes." Id. At *10.

Litigants should remember that merely alleging an adversary's crime or fraud does not result in forfeiture of privilege or work product protection. On the other hand, no court requires a litigant to actually prove the adversary's criminal guilt or fraud liability.

Case Date Jurisdiction State Cite Checked
2013-01-09 Federal NE
Comment:

key case


Chapter: 18.502
Case Name: Amusement Indus., Inc. v. Stern, 203 F.R.D. 420, 426 (S.D.N.Y. 2013)
(finding the crime-fraud exception applicable; "It is sufficient to come within the exception that the client intended to use the attorney's services in furtherance of a crime or fraud even if the attorney was unaware of this purpose.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NY B 2/14

Chapter: 18.502
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *10 (E.D. Va. Dec. 3, 2012)
("It is incumbent upon the Government to make a prima facie showing that privileged communications fall within the exception. . . . To do so, the Government need not prove the existence of a crime beyond a reasonable doubt or even by a preponderance of the evidence -- it is sufficient if the prima facie showing establishes that . . . [t]he client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme."; "When applying the crime-fraud exception to the attorney-client privilege, the attorney need not be aware that illegal or fraudulent conduct is afoot.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA B 5/13

Chapter: 18.502
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *23, *24-25 (E.D. Va. Dec. 3, 2012)
("The Government is not required to prove Moazzeni's alleged crimes beyond a reasonable doubt, by clear and convincing evidence, or even by a preponderance of the evidence. . . . Rather, it is sufficient that the Government makes a prima facie showing that a fraudulent scheme was afoot and that the otherwise privileged documents relate to the fraud. . . ."; "Here, the criminal activity is a scheme to defraud creditors by hiding assets; the means of accomplishing this feat were non-disclosure of Moazzeni's interest in the subject assets. By Moazzeni's design, the bankruptcy schedules prepared by Mahmoud omitted these assets, thereby using The Jernigan Law Firm to perpetrate a fraud. Thus, each of the documents related to the preparation, filing, and consequences of those inaccurate schedules falls within the crime-fraud exception."; "[T]he Government has sufficiently shown that Krumbein [lawyer] was unwittingly used as a sword to cast blame on Mahmoud, thereby perpetrating a further fraud on the Bankruptcy Court. Although the parties agree that Krumbein was unaware of any misconduct, Moazzeni directed Krumbein to accuse Mahmoud of mistakes or misconduct in preparing the schedules. In effect, Moazzeni attempted to hide his first fraud by effecting a new fraud -- that several members of the bankruptcy bar were responsible for his apparent scheme. Any communications with Krumbein in furtherance of this effort to blame Mahmoud and Jernigan fall within the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA B 5/13

Chapter: 18.502
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *11 (E.D. Va. Dec. 3, 2012)
("[W]hen applying the doctrine to opinion work product, 'a prima facie case of crime or fraud must also be made out against the attorney.' Id. at 252 (citation omitted) [In re Grand Jury Proceedings #5, 401 F.3d 247, 252 (4th Cir. 2005)]. 'Thus, while the attorney-client privilege may be vitiated without showing that the attorney knew of the fraud or crime, those seeking to overcome the opinion work product privilege must make a prima facie showing that the attorney in question was aware of or a knowing participant in the criminal conduct.'")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA

Chapter: 18.502
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *10, *11 (E.D. Va. Dec. 3, 2012)
("It is incumbent upon the Government to make a prima facie showing that privileged communications fall within the exception. . . . To do so, the Government need not prove the existence of a crime beyond a reasonable doubt or even by a preponderance of the evidence it is sufficient if the prima facie showing establishes that . . . [t]he client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme."; "When applying the crime-fraud exception to the attorney-client privilege, the attorney need not be aware that illegal or fraudulent conduct is afoot.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA B 5/13

Chapter: 18.502
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *24-25 (E.D. Va. Dec. 3, 2012)
("[T]he Government has sufficiently shown that Krumbein [lawyer] was unwittingly used as a sword to cast blame on Mahmoud, thereby perpetrating a further fraud on the Bankruptcy Court. Although the parties agree that Krumbein was unaware of any misconduct, Moazzeni directed Krumbein to accuse Mahmoud of mistakes or misconduct in preparing the schedules. In effect, Moazzeni attempted to hide his first fraud by effecting a new fraud that several members of the bankruptcy bar were responsible for his apparent scheme. Any communications with Krumbein in furtherance of this effort to blame Mahmoud and Jernigan fall within the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA

Chapter: 18.502
Case Name: In re Grand Jury, 705 F.3d 133, 157 (3d Cir. 2012)
(finding the crime-fraud exception applicable; "For the crime-fraud exception to apply, the attorney does not have to be implicated in the crime or fraud or even have knowledge of the alleged criminal or fraudulent scheme. . . . All that is necessary is that the client misuse or intend to misuse the attorney's advice in furtherance of an improper purpose. . . . When this occurs, the purpose of the privilege, to promote the fair administration of justice, has been undermined and the privilege no longer applies.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal B 8/13

Chapter: 18.502
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 831, 830 (E.D. Va. 2005)
(holding that the crime-fraud exception applied to communications between a jailed inmate and his lawyer, because "there can be little doubt that Lentz [jailed inmate], in contacting Mr. Salvato [lawyer], was seeking aid and information from his attorney to further his nascent murder-for-hire plot"; "[A]dvice in furtherance of such goals is anathema to our system of justice; hence, a client's communications seeking such advice are not worthy of protection. It is immaterial whether the attorney knew that the client was seeking his advice for illegal purposes or whether the attorney joined in, or, as here, counseled against the illegal activity. The attorney's knowledge and intent are not material to the operation of the crime fraud exception; only the client's knowledge and intent are material in this regard. It is similarly immaterial whether the defendant actually succeeded in completing the crime or fraud in question; rather, solicitation alone triggers the exception." (footnotes omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal VA

Chapter: 18.502
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251 (4th Cir. 2005)
("When applying the crime-fraud exception to the attorney-client privilege, we have held that it is the client's knowledge and intentions that are of paramount concern because the client is the holder of the privilege. . . . Therefore, for the exception to apply, the attorney need not be aware of the illegality involved. . . . Rather, 'it is enough that the communication furthered, or was intended by the client to further, that illegality.' . . . (internal citations omitted).")

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 18.502
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 831, 830 (E.D. Va. 2005)
("[A]dvice in furtherance of such goals is anathema to our system of justice; hence, a client's communications seeking such advice are not worthy of protection. It is immaterial whether the attorney knew that the client was seeking his advice for illegal purposes or whether the attorney joined in, or, as here, counseled against the illegal activity. The attorney's knowledge and intent are not material to the operation of the crime fraud exception; only the client's knowledge and intent are material in this regard. It is similarly immaterial whether the defendant actually succeeded in completing the crime or fraud in question; rather, solicitation alone triggers the exception. In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1039 (2d Cir. 1984)" (footnotes omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal VA

Chapter: 18.502
Case Name: United States v. Ruhbayan, 201 F. Supp. 2d 682, 685 (E.D. Va. 2002)
(holding that "the work product privilege applies to information sought in criminal trials"; finding the crime-fraud exception applicable because the government established a prima facie case that defendant "tricked" its former lawyer into providing perjured testimony through a witness at a jury trial)

Case Date Jurisdiction State Cite Checked
2002-01-01 Federal

Chapter: 18.502
Case Name: United States v. Ruhbayan, 201 F. Supp. 2d 682, 685 (E.D. Va. 2002)
(finding the crime-fraud exception applicable because the government established a prima facie case that defendant "tricked" its former lawyer into providing perjured testimony through a witness at a jury trial)

Case Date Jurisdiction State Cite Checked
2002-01-01 Federal VA

Chapter: 18.502
Case Name: United States v. Under Seal (In re Grand Jury Proceedings), 102 F.3d 748, 751 (4th Cir. 1996)
("the concealment or cover-up of its criminal or fraudulent activities by the client, the holder of the privilege, rather than the attorney's lack of knowledge of the criminal or fraudulent activity or activities of the client, controls the court's analysis of whether the attorney-client privilege may be successfully invoked" (citation omitted))

Case Date Jurisdiction State Cite Checked
1996-01-01 Federal

Chapter: 18.502
Case Name: In re Andrews, 186 B.R. 219, 222 (Bankr. E.D. Va. 1995)
("an attorney's knowledge of the client's wrongful intent is irrelevant"; applying the crime/fraud exception)

Case Date Jurisdiction State Cite Checked
1995-01-01 Federal VA

Chapter: 18.502
Case Name: Petter v. Acevedo, 31 Va. Cir. 7, 8 (Va. Cir. Ct. 1993)
(finding that the crime-fraud exception applied to overcome the privilege; rejecting the argument that "the attorney must be an 'active' participant in the fraud to vitiate the privilege")

Case Date Jurisdiction State Cite Checked
1993-01-01 State VA

Chapter: 18.502
Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1306 n.16 (E.D. Va. 1992)
(analyzing a lawsuit in which an in-house lawyer alleged wrongful termination; "Moreover, the crime-fraud exception applies without regard to the attorney's actual or constructive knowledge of the crime or fraud."; ultimately concluding that the employee was entitled to a preliminary injunction preventing the in-house lawyer plaintiff from disclosing confidential information beyond his own lawyer, but refusing to order the plaintiff to return documents that he had taken when he left his employment; the Fourth Circuit ultimately upheld a permanent injunction prohibiting the in-house lawyer from disclosing confidential communication, Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143, 17 F.3d 1435 (4th Cir. Feb. 23, 1994) (unpublished opinion))

Case Date Jurisdiction State Cite Checked
1992-01-01 Federal VA N 3/10

Chapter: 18.502
Case Name: In re Grand Jury Proceedings, 674 F.2d 309, 310 (4th Cir. 1982)
(finding the crime-fraud exception applicable even though it was unclear "whether the attorney knew of the criminal activity")

Case Date Jurisdiction State Cite Checked
1982-01-01 Federal

Chapter: 18.601
Case Name: Columbia Sportswear Co. v. 3MD, Inc., Civ. No. 03:17-CV-0342-AC, 2017 U.S. Dist. LEXIS 210777 (D. Ore. Dec. 21, 2017)
("The joint-defense privilege, as an extension of attorney-client privilege, is likewise subject to the crime-fraud exception under the above analytical framework.")

Case Date Jurisdiction State Cite Checked
2017-12-21 Federal OR

Chapter: 18.602
Case Name: Adidas America, Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2018 U.S. Dist. LEXIS 164159 (D. Ore. Sept. 25, 2018)
(finding the crime-fraud exception applicable; inexplicably ordering production of a category of documents rather than analyzing the documents one at a time; "Plaintiffs argue that the Court should only consider the intent of the declarant (outside counsel), or possibly the person responsible for the filing and who directed outside counsel . . . the 'registrant' here is Reebok. Further, from a policy standpoint, it makes little sense to consider only the signatory's knowledge and intent. Under Plaintiffs' approach, a registrant could engage in fraudulent conduct but keep outside counsel in the dark, and would then be able to engage in fraud on the PTO with impunity. The Court thus considers Reebok's knowledge and intent, not just outside counsel's or Ms. Han's.")

Case Date Jurisdiction State Cite Checked
2018-09-25 Federal OR

Chapter: 18.602
Case Name: Adidas America, Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2018 U.S. Dist. LEXIS 164159 (D. Ore. Sept. 25, 2018)
(finding the crime-fraud exception applicable; inexplicably ordering production of a category of documents rather than analyzing the documents one at a time; "The Court finds the crime-fraud exception applies to documents concerning the 2012 Section 8 filing relating to the RBK mark. All documents relating to that filing, including documents relating to whether Reebok could file at the sixth-year anniversary, the sticker program, the e-commerce backup plan, and the ultimate filing at the close of the six-month grace period are not privileged and must be promptly produced.")

Case Date Jurisdiction State Cite Checked
2018-09-25 Federal OR

Chapter: 18.602
Case Name: Drummond Company, Inc. v. Conrad & Scherer, LLP, Nos. 16-11090, 15-90031, 2018 WL (11th Cir. App. March 23, 2018)
(holding that the crime-fraud exception could apply even if the client was innocent of any wrongdoing; "After determining that the crime-fraud exception may apply, the district court ordered a special master to review in camera the documents that Collingsworth and C&S claimed were privileged or protected as attorney work product to determine whether each individual document was in furtherance of or closely related to a fraud on the court or crime and therefore should be produced to Drummond. The court also set forth a procedure for the special master to assess a witness's assertion or attorney-client privilege or attorney work product protection in a deposition. The court directed that when necessary a witness should give in camera testimony, potentially ex parte, so that the special master could appropriately assess any privilege issues while limiting disclosure only to information used or created in furtherance of the crime or fraud.")

Case Date Jurisdiction State Cite Checked
2018-03-23 Federal
Comment:

key case


Chapter: 18.602
Case Name: Kiossovski v. Forest Labs., Inc., MDL No. 09-02067-NMG, Civ. A. No. 14-13848-NMG, 2018 U.S. Dist. LEXIS 348 (D. Mass. Jan. 2, 2018)
(analyzing the crime-fraud exception, and finding it inapplicable)

Case Date Jurisdiction State Cite Checked
2018-01-02 Federal MA

Chapter: 18.602
Case Name: United States v. Gorski, Nos. 14-1963, 14-1964, 14-2074, 2015 U.S. App. LEXIS 21302 (1st Cir. App. Dec. 9, 2015)
(analyzing interlocutory appeals and the crime-fraud exception; concluding the individual defendant cannot pursue an interlocutory appeal, but that a non-party could rely on the Perlman doctrine; finding that the crime-fraud exception applied to communications to and from Mintz Levin, and remanding for the trial court's review of certain documents to determine if the exception applied to them; "Legion argues that even if the above were true, the production order was overbroad because the district court did not conduct a document-by-document review to determine specifically which communications and documents were in furtherance of the criminal or fraudulent conduct. However, the district court made it clear in a status conference following the order that its decision was the result of 'a document-by-document review.' We too have reviewed the documents. The district court could have done a document-by-document analysis and still readily concluded that all of the documents from Mintz Levin fell within the crime-fraud exception based on a reasonable inference that the entire scope of the representation was intended by Gorski to further the crime or fraud. Gorski's ongoing scheme required Legion to be structured to maintain the appearance of compliance with SDVOSB regulations, and the entire scope of Mintz Levin's representation was related to the 2010 restructuring. As such, there was a reasonable basis to conclude that there was a complete congruence between everything Mintz Levin did and the fraudulent purpose by Gorski that triggers the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2015-12-09 Federal MA
Comment:

key case


Chapter: 18.602
Case Name: United States v. Gorski, Nos. 14-1963, 14-1964, 14-2074, 2015 U.S. App. LEXIS 21302 (1st Cir. App. Dec. 9, 2015)
(analyzing interlocutory appeals and the crime-fraud exception; concluding the individual defendant cannot pursue an interlocutory appeal, but that a non-party could rely on the Perlman doctrine; finding that the crime-fraud exception applied to communications to and from Mintz Levin, and remanding for the trial court's review of certain documents to determine if the exception applied to them; "There is also a reasonable basis to believe that, with the intent of continuing this scheme, Gorski and/or Legion sought out the services of Mintz Levin to restructure Legion and maintain Legion's outward compliance with SDVOSB regulations.")

Case Date Jurisdiction State Cite Checked
2015-12-09 Federal MA

Chapter: 18.602
Case Name: In re Chinese Manufactured Drywall Prods. Liability Litig., MDL No. 2047 Section L, 2015 U.S. Dist. LEXIS 153164 (E.D. La. Nov. 12, 2015)
(finding that the crime-fraud exception applied; "After reviewing the emails, the Court concludes that certain communications are subject to the crime-fraud exception to attorney-client privilege in that they revolve around Taishan's intent to commit criminal contempt.")

Case Date Jurisdiction State Cite Checked
2015-11-12 Federal LA

Chapter: 18.602
Case Name: In re Application Pursuant to 28 U.S.C. § 1782 of Okean B.V., 12 Misc. 104 (PAE), 2014 U.S. Dist. LEXIS 145548 (S.D.N.Y. Oct. 10, 2014)
(analyzing discovery issues in connection with 28 U.S.C. § 1782, which governs discovery for use in a foreign proceeding; ultimately refusing to apply the crime-fraud exception to Russian documents; finding after an in camera review that the crime-fraud exception would not have applied anyway; "Having reviewed those documents carefully in camera, the Court rejects this claim. Simply put, the documents fall far, far short of establishing the crime-fraud exception. They do not reveal a fraudulent scheme, or anything close. They reflect attorneys working with clients to arrange a complex business transaction on a tight timetable. To be sure, if one starts off with the premise, as Okean does, that there was a fraudulent scheme afoot, the documents contain stray turns of phrase or factual particulars that can be woven into a broader tale of fraud. But if one starts off with the correct assumption, which is that the burden of proving the crime-fraud exception is on the entity seeking to defeat privilege, the documents are manifestly insufficient to show any such fraud. Therefore, the Court holds, emphatically, that the documents in question remain privileged, even if a U.S.-style crime-fraud exception could be said to exist.")

Case Date Jurisdiction State Cite Checked
2014-10-10 Federal NY

Chapter: 18.602
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *21 (E.D. Va. Dec. 3, 2012)
("In the summer of 2003, Moazzeni met with Leffler to discuss filing for Chapter 7 bankruptcy protection. Leffler declined the representation and advised Moazzeni to seek another lawyer if he wanted to proceed. Considering the context of the communications between Leffler and Moazzeni, the Government has failed to establish a prima facie case that any communications with him fall within the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA

Chapter: 18.803
Case Name: Buxbaum v. St. Vincent's Health Servs., Inc., Civ. No. 3:12CV117 (WWE), 2013 U.S. Dist. LEXIS 2246, at *18 (D. Conn. Jan. 7, 2013)
("The presence of Struzik [an employee of non-party CSC acting as St. Vincent's Medical Center Site Manager] does not destroy the privilege of this communication, as his assistance was indispensable to Miller in gathering information during the course of the investigation regarding plaintiff.")

Case Date Jurisdiction State Cite Checked
2013-01-07 Federal CT B 7/13

Chapter: 18.902
Case Name: United States v. Joyce, Crim A. No. 17-10378-NMG, 2018 U.S. Dist. LEXIS 75513 (D. Mass. May 4, 2018)
(analyzing the crime-fraud exception; ultimately ordering an in camera review; "Upon a proper showing by the government, judges have discretion to review privileged materials in camera to determine whether the crime-fraud exception applies."; "'[T]o support a good-faith belief by a reasonable person [that] in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'"; "The Court finds that the indictment provides a good faith reason to believe that Joyce retained and instructed Cooper [Lawyer] with the intent of committing or fostering the commission of a crime."; "The grand jury indictment supports a good-faith belief that in camera review may reveal evidence that the crime-fraud exception applies.")

Case Date Jurisdiction State Cite Checked
2018-05-04 Federal MA

Chapter: 18.902
Case Name: United States v. Buckingham, Case No. RWT 13-cv-3227, 2018 U.S. Dist. LEXIS 40659 (D. Md. March 13, 2018)
(finding it unnecessary to decide if a fraudulent conveyance claim can trigger the crime-fraud exception; finding that the plaintiff had not shown enough ill intent to apply the crime-fraud exception; "Although the transfers at issue here may include badges of fraud other than 'deception, dishonesty, misrepresentation, falsification, or forgery,' as United Bank claims, the presence of any particular indicia of fraud, or any particular combination of such, is not dispositive. . . . It is the court's duty to consider all of the circumstances in determining whether a sufficient showing of intent has been made. . . . Under the circumstances presented here, Judge Sullivan was well within reason to find that United Bank failed to make out a prima facie showing of wrongful intent in relation to the conveyances at issue in this case.")

Case Date Jurisdiction State Cite Checked
2018-03-13 Federal MD

Chapter: 18.902
Case Name: Hale v. Emporia State Univ., Case No. 16-cv-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 26562 (D. Kansas Feb. 20, 2018)
(analyzing protection for a defendant's human resource representative's interview notes of a plaintiff, taken as part of an investigation into racial discrimination; "At the August 28, 2017 scheduling conference with the Court, Plaintiff requested that ESU produce a copy of its internal investigation report referred to as the '350-plus page' investigative report disclosed during a press conference held by ESU. Counsel for ESU agreed to early production of the report, subject to redactions for attorney work product and privilege."; "Under the crime-fraud exception, '[t]he attorney-client privilege does not apply where the client consults an attorney to further a crime or fraud.' The crime-fraud exception also applies to documents claimed to be protected from discovery as work product. The purpose of the crime-fraud exception is to assure that the seal of secrecy between the attorney and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime. The crime-fraud exception has not been extended to torts generally. The party claiming that the crime-fraud exception applies must present prima facie evidence that the allegation of attorney participation in a crime or fraud has some foundation in fact. The determination of whether such a prima facie showing has been made is left to the sound discretion of the district court."; "Having found Plaintiff has not made a prima facie showing ESU's actions constituted fraud, the Court considers whether it must conduct an in camera review of the documents withheld by ESU to determine the applicability of the crime-fraud exception."; "The decision whether to conduct an in camera review is left to the sound discretion of the district court."; "In cases where the crime-fraud exception is at issue, the court may conduct an in camera review to determine the applicability of the crime-fraud exception, but only if the party requesting such a review makes a 'showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish that the crime-fraud exception applies.' This evidentiary standard requires less than what is required ultimately to overcome the privilege. In making this decision, the court should consider the facts and circumstances of the particular case including, among other things, the volume of materials to be reviewed, the relative importance of the alleged privileged information to the case, and the likelihood that the evidence produced through in camera review, together with other available evidence then before the court, will establish that the crime-fraud exception does apply. In contrast to the Zolin standard for determining whether to conduct an in camera review, the Court notes that Kansas law prohibits review of the actual communications in determining whether the fraud-crime exception applies. Plaintiff's claims in this case arise under federal statute, therefore federal law (instead of state law) governs any claim of privilege. The Court will therefore apply the standard set out in Zolin."; "In light of the deficiencies noted above in establishing all the elements required to show fraud, the Court finds the evidence presented by Plaintiff in her motion and briefing does not establish a 'factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish that the crime-fraud exception applies.' Accordingly, the Court declines to conduct an in camera review of the withheld documents for purposes of the crime-fraud exception to attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2018-02-20 Federal KS
Comment:

key case


Chapter: 18.902
Case Name: United States v. Hallinan, Crim. A. No. 16-130-01,-02, 2017 U.S. Dist. LEXIS 199490 (E.D. Pa. Dec. 5, 2017)
("To obtain an in camera hearing, the party seeking disclosure must first demonstrate that there is 'a factual basis adequate to support a good faith belief by a reasonable person' that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal PA

Chapter: 18.902
Case Name: Meyer v. Kalanick, 15 Civ. 9796, 2016 U.S. Dist. LEXIS 74214 (S.D.N.Y. June 7, 2016)
("In sum, plaintiff has provided sufficient evidence to provide a 'prudent person' with 'a reasonable basis to suspect' that a fraud took place and that Uber communications 'were in furtherance thereof.'. . . Put differently, plaintiff has presented 'evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception's applicability.'. . . Of course, the Court has no way to know prior to reviewing the documents in question whether or not the crime-fraud exception does in fact apply to some or all of the documents. But plaintiff has made its threshold showing, and the determination whether privilege has been correctly asserted must now be made through in camera review, after which any materials judged not to be privileged will be disclosed to plaintiff. Such an incremental approach 'strikes the correct balance'. . . between the important values supporting the attorney-client privilege . . . and the need to ensure that the privilege does not extend so far that it shields communications made in furtherance of a fraud or a crime.")

Case Date Jurisdiction State Cite Checked
2016-06-07 Federal NY

Chapter: 18.902
Case Name: Martin v. Giordano, 11-CV-4507 (ARR), 2016 U.S. Dist. LEXIS 59940 (E.D.N.Y. May 4, 2016)
(analyzing the crime-fraud exception, and finding it inapplicable; "A more lenient standard applies to defendants' request for in camera inspection of the communications at issue.")

Case Date Jurisdiction State Cite Checked
2016-05-04 Federal NY

Chapter: 18.902
Case Name: In re Animation Workers Antitrust Litigation, Case No. 5:14-cv-04062-LHK, 2016 U.S. Dist. LEXIS 44154 (N.D. Cal. March 30, 2016)
(finding the crime-fraud exception inapplicable, but noting that a civil antitrust violation could trigger the exception under different circumstances; "Last week, the court ordered Defendant Pixar to submit for in camera review various documents involving former Pixar Executive Vice President and General Counsel Lois Scali. Pixar has asserted that these documents are subject to the attorney-client privilege. Notwithstanding that assertion, and after considering evidence from Pixar supporting that assertion, the court held that Plaintiffs had shown there was 'a reasonable, good-faith belief that review of the privileged documents may reveal evidence to establish the claim that the crime fraud exception applies.' The exception applies where (1) the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme and (2) the attorney-client communications for which production is sought are 'sufficiently related to' and were made in furtherance of the intended, or present, continuing illegality."; "While Plaintiffs initially sought in camera review of the documents, what they ultimately seek is the documents' production. Production, as compared to mere in camera review, carries a higher burden of proof than merely a 'reasonable, good-faith belief.' In civil cases such as this one, that burden is preponderance of the evidence, or whether 'it is more likely than not that the party resisting the disclosures sought or used legal advice to commit or to try to commit a crime or fraud.' Having read each and every document submitted, the court holds that Plaintiffs' burden, at least as to the first part of the applicable test, is not yet met.")

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal CA

Chapter: 18.902
Case Name: Lewis v. Delta Air Lines, Inc., Case No. 2:14-cv-01683-RFB-GWF, 2015 U.S. Dist. LEXIS 171797 (D. Nev. Dec. 23, 2015)
(analyzing the crime-fraud exception; "Although in camera review of attorney-client communications should not be triggered by the mere allegation that the employer's proffered reason was pretextual, the threshold showing required under Zolin is relatively low. In camera review of the subject attorney-client communications is appropriate where the factual circumstances reasonably indicate that the attorney's advice may have been obtained or used to present a false explanation for the employer's adverse employment action.")

Case Date Jurisdiction State Cite Checked
2015-12-23 Federal NV

Chapter: 18.902
Case Name: Lewis v. Delta Air Lines, Inc., Case No. 2:14-cv-01683-RFB-GWF, 2015 U.S. Dist. LEXIS 171797 (D. Nev. Dec. 23, 2015)
(analyzing the crime-fraud exception; "The Court finds that Plaintiff has raised a sufficient factual issue regarding whether the Defendant's announced reason for terminating Plaintiff's employment was false such as to justify in camera review of the communications between Defendant's employees and Defendant's in-house counsel between August 28 and September 11, 2012.")

Case Date Jurisdiction State Cite Checked
2015-12-23 Federal NV

Chapter: 18.902
Case Name: United States v. Gorski, Nos. 14-1963, 14-1964, 14-2074, 2015 U.S. App. LEXIS 21302 (1st Cir. App. Dec. 9, 2015)
(analyzing interlocutory appeals and the crime-fraud exception; concluding the individual defendant cannot pursue an interlocutory appeal, but that a non-party could rely on the Perlman doctrine; finding that the crime-fraud exception applied to communications to and from Mintz Levin, and remanding for the trial court's review of certain documents to determine if the exception applied to them; "Our decision that a prima facie case for the crime-fraud exception has been made does not reflect a finding on the ultimate question of whether Gorski acted wrongfully. . . . Nor does it bear on the conduct or intent of the lawyers involved, because the crime-fraud exception is triggered by the intent of the client.")

Case Date Jurisdiction State Cite Checked
2015-12-09 Federal MA

Chapter: 18.902
Case Name: Tracy v. Telemetrix, Inc., 8:12CV359, 2015 U.S. Dist. LEXIS 153852 (D. Neb. Nov. 13, 2015)
("Before any documents are either produced or reviewed in camera, the party seeking disclosure must make 'a threshold showing 'of a factual basis adequate to support a good faith belief by a reasonable person' that the crime-fraud exception applies.'")

Case Date Jurisdiction State Cite Checked
2015-11-13 Federal NE

Chapter: 18.902
Case Name: In re Grand Jury Subpoenas Dated March 2, 2015, 15-1976, 2015 U.S. App. LEXIS 17633 (2nd Cir. App. Oct. 6, 2015)
("Based on the facts before it, the district court did not clearly err in finding that there was probable cause to conclude that the tax protest was based on a false, undocumented transaction and that the Owner engaged in the tax protest as part of a strategy to further conceal that tax fraud and shirk his tax liabilities. The district court conducted an in camera review of the privileged communications at issue and concluded that those communications supported its determination that the crime-fraud exception applied. We have examined those privileged communications, the facts in the record, and the parties' ex parte submissions, and hold that the district court did not clearly err.")

Case Date Jurisdiction State Cite Checked
2015-10-06 Federal

Chapter: 18.902
Case Name: United States v. Levin, 15 Cr. 101 (KBF), 2015 U.S. Dist. LEXIS 137615 (S.D.N.Y. Oct. 5, 2015)
("To order an in camera review of documents for which the attorney-client privilege has been claimed, the Court must find that the Government makes a 'showing of a factual basis adequate to support a good faith belief by a reasonable person . . . That in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'. . . Once such a showing has been made, the Court has the discretion to engage in an in camera review.")

Case Date Jurisdiction State Cite Checked
2015-10-05 Federal NY

Chapter: 18.902
Case Name: In re Subpoena to Testify Before Grand Jury, Case No. 15-mc-80207-JSC, 2015 U.S. Dist. LEXIS 122305 (N.D. Cal. Sept. 14, 2015)
("Here, the Court's in camera review of the material the government submitted establishes reasonable cause to believe that there was an ongoing crime and that Bhatnagar's legal services were utilized by his client in furtherance of the ongoing unlawful scheme. The Court declines to disclose the basis of this belief in light of the sensitive nature of the government's ongoing investigation. . . . Out of an abundance of caution in light of the Ninth Circuit's recent decision in Christensen, the Court will instead review the documents sought in camera under the two-part Zolin test to confirm that the crime-fraud exception applies.").

Case Date Jurisdiction State Cite Checked
2015-09-14 Federal CA

Chapter: 18.902
Case Name: In re Subpoena to Testify Before Grand Jury, Case No. 15-mc-80207-JSC, 2015 U.S. Dist. LEXIS 122305 (N.D. Cal. Sept. 14, 2015)
("Where the party challenging the privilege lacks sufficient evidence to establish reasonable cause to believe the crime-fraud exception applies, the court may instead review the actual documents sought in camera if the moving party can meet a lower threshold. Specifically, the moving party need only demonstrate a 'factual basis adequate to support a good faith belief by a reasonable person' that in camera review of the documents will reveal evidence showing that the crime-fraud exception applies. . . . Once that initial showing has been made, 'the decision whether to engage in in camera review rests in the sound discretion of the district court.'").

Case Date Jurisdiction State Cite Checked
2015-09-14 Federal CA

Chapter: 18.902
Case Name: In re Grand Jury Proceedings, No. 15-1555, 2015 U.S. App. LEXIS 15911 (1st Cir. App. Sept. 4, 2015)
("Under those circumstances, there was no need for a privilege log to address that general question, and appellant's failure to provide a privilege log in opposition to the motion to compel did not deprive appellant of the right to contest the government's overall crime-fraud theory."; "The failure to produce a privilege log (or otherwise identify particular documents subject to the privilege) to support the need for in camera inspection waived appellant's right to seek in camera inspection."; "Neither appellant nor appellant's attorneys ever produced a privilege log in response to the motion to compel nor otherwise complied with the requirements of Rule 45. Under this court's cases, that constitutes a waiver of the request for in camera review.").

Case Date Jurisdiction State Cite Checked
2015-09-04 Federal

Chapter: 18.902
Case Name: In re Grand Jury Proceedings, No. 15-1555, 2015 U.S. App. LEXIS 15911 (1st. Cir. App. Sept. 4, 2015)
(assessing the crime-fraud exception; "In camera review can perform two separate functions in the crime-fraud exception context. First, in camera review may be used to determine whether there is sufficient evidence to apply the crime-fraud exception to a claim of attorney-client privilege."; "Second, in camera review may be sought for a different purpose -- to determine whether specific documents evidence communications with attorneys in furtherance of the crime or fraud. This is because the crime-fraud exception requires 'that the communications were intended by the client to facilitate or conceal the criminal or fraudulent activity.'").

Case Date Jurisdiction State Cite Checked
2015-09-04 Federal
Comment:

key case


Chapter: 18.902
Case Name: United States v. Christensen, No. 08-50531, No. 08-50570, No. 09-50115, No. 09-50125, No. 09-50128, No. 09-50159, No. 10-50434, No. 10-50462, No. 10-50464, No. 10-50472, 2015 U.S. App. LEXIS 14961 (9th Cir. Aug. 25, 2015)
(analyzing the crime-fraud exception; "'Whether an evidentiary showing is sufficient to allow in camera review under the Zolin test is a mixed question of law and fact subject to de novo review.". . . Once an adequate showing under Zolin's first step has been made, 'the decision whether to engage in in camera review rests in the sound discretion of the district court.' Zolin, 491 U.S. at 572. Under Zolin's second step, 'rulings on the scope of the privilege,' including the crime-fraud exception, 'involve mixed questions of law and fact and are reviewable de novo, unless the scope of the privilege is clear and the decision made by the district court is essentially factual; in that case only clear error justifies reversal.'"; "Zolin requires a district court to follow a two-step ex parte process to determine whether the crime-fraud exception applies to potentially privileged materials, such as the Pellicano-Christensen recordings. 491 U.S. at 572. First, 'the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'. . . Second, if the government makes such a preliminary showing based on evidence other than the potentially privileged materials themselves, the court may conduct an in camera review to determine whether the materials are privileged and, if so, whether the crime-fraud exception applies."; assessing what it called "Zolin's first step"; "The district court did not err in holding that the government met its minimal burden under Zolin's first step."; "Zolin's first step requires 'a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'. . . The government must make only 'a minimal showing that the crime-fraud exception could apply'. . . . Some speculation is required under the Zolin threshold.'. . . The threshold is 'not . . . a stringent one' because 'in camera review of documents is a much smaller intrusion on the attorney-client privilege than full disclosure.'. . . The first step is meant only 'to prevent 'groundless fishing expeditions.'"; also analyzing what the court called "Zolin's second step"; "Under Zolin's second step, the district court conducts an in camera review to determine whether the materials are privileged and, if so, whether the government has made a prima facie showing that the crime-fraud exception applies.")

Case Date Jurisdiction State Cite Checked
2015-08-25 Federal
Comment:

key case


Chapter: 18.902
Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015)
(holding that an executive of a corporate affiliate was within the privilege, so his presence did not destroy the privilege protection, and disclosing privileged communications that did not waive the privilege; "The Court agrees with Plaintiff that there does appear to be a basis for the crime-fraud exception to apply to the 2005 documents. Plaintiff must make a prima facie showing that the client was committing or intending to commit a fraud or crime, and that the attorney-client communications were in furtherance of that alleged crime or fraud.")

Case Date Jurisdiction State Cite Checked
2015-06-09 Federal CA

Chapter: 18.902
Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015)
(analyzing the crime-fraud exception; finding the crime-fraud exception applicable; "The Court agrees with Plaintiff that there does appear to be a basis for the crime-fraud exception to apply to the 2005 documents. Plaintiff must make a prima facie showing that the client was committing or intending to commit a fraud or crime, and that the attorney-client communications were in furtherance of that alleged crime or fraud.")

Case Date Jurisdiction State Cite Checked
2015-06-09 Federal CA

Chapter: 18.902
Case Name: Malbco Holdings, LLC v. Patel, 6:14-cv-00947-PK, 2015 U.S. Dist. LEXIS 62501 (D. Ore. May 13, 2015)
("Oregon courts and the United States Supreme Court require parties seeking in camera review to present sufficient evidence to 'support a reasonable belief that in camera review may yield evidence that establishes the exception's applicability.'")

Case Date Jurisdiction State Cite Checked
2015-05-13 Federal OR

Chapter: 18.902
Case Name: United States v. Weed, Crim. No. 14-cr-10348-DPW, 2015 U.S. Dist. LEXIS 52538 (D. Mass. April 14, 2015)
(finding the crime-fraud exception applicable; "To meet the first prong of this test, the party challenging the privilege must present 'a prima facie showing of evidence that, if believed by the trier of fact, would establish the elements of some violation that was ongoing or about to be committed. Prong two may be satisfied with a showing of a close relationship between the attorney-client communications and the possible criminal or fraudulent activity.'")

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal MA

Chapter: 18.902
Case Name: United States v. Ceglia, Case No. 1:12-cr-00876-VSB, Doc. 166 (S.D.N.Y. March 30, 2015)
(finding the crime-fraud exception applicable to communications to and from the law firms of DLA Piper and Kasowitz Benson a plaintiff who created a false document in claiming that Mark Zuckerberg promised him joint ownership of Facebook; "[A] part wishing to invoke the crime-fraud exception to the attorney-client privilege must demonstrate that there is a factual basis for a showing of probable cause to believe that a crime or fraud has been committed and that the communications at issue were in furtherance of the crime or fraud. However, a special prima facie showing is required where 'the very act of litigating is alleged as being in furtherance of a fraud.'. . . I have already concluded, as did Judge Carter, that the Government has made a prima facie showing of probable cause that Ceglia's lawsuit had little or no factual or legal basis and was carried on substantially to further a fraud."; "The prima facie showing having been made, I then can exercise my discretion to conduct an in camera review of the materials subject to the claim of privilege. See Jacobs, 117 F.3d at 87. Next, I must make a factual finding whether the specific documents I review actually fall within the crime-fraud exception. . . . The crime-fraud exception strips the privilege from only those communications or work product 'that relate to client communications in furtherance of contemplated or ongoing criminal or fraudulent conduct.'. . . There must be a 'purposeful nexus' between the communication or document and the fraudulent activity. . . . The communication or document 'need only reasonably relate' to the subject matter of the purported fraud. . . . Attorney communications and work product may be in furtherance of a crime or fraud even if the attorney is unaware of the client's ill intent.")

Case Date Jurisdiction State Cite Checked
2015-03-30 Federal NY

Chapter: 18.902
Case Name: In re PWK Timberland, LLC, Case No. 13-20242, 2015 Bankr. LEXIS 248 (W.D. La. Jan. 27, 2015)
("This showing requires more than mere conclusory allegations that a crime or fraud has occurred. . . . The record does not support a prima facie case that a crime or fraud has occurred. In their pleadings, Movants concede that they cannot allege fraud without access to the privileged documents, but instead contend that PWK and the non-withdrawing members have violated their duties by seeking to frustrate the Movants' rights under the Put Option. The court finds that these allegations, standing alone, do not support a prima facie case of a crime or fraud. Moreover, courts have generally held that an in camera review of the documents should not be used to 'bootstrap' a prima facie showing of a crime or fraud.")

Case Date Jurisdiction State Cite Checked
2015-01-27 Federal LA

Chapter: 18.902
Case Name: Transcontinental Refrigerated Lines, Inc. v. New Prime, Inc., Civ. No. 1:13-CV-2163, 2014 U.S. Dist. LEXIS 75320, at *34 (M.D. Pa. June 3, 2014)
("Given the obvious difficulties in determining whether a particular document contains material in furtherance of a crime or fraud in absentia, district courts frequently review challenged documents in camera to determine whether the exception applies.")

Case Date Jurisdiction State Cite Checked
2014-06-03 Federal PA

Chapter: 18.902
Case Name: Transcontinental Refrigerated Lines, Inc. v. New Prime, Inc., Civ. No. 1:13-CV-2163, 2014 U.S. Dist. LEXIS 75320, at *32 (M.D. Pa. June 3, 2014)
("Courts have long endeavored to delineate the specific parameters of the crime-fraud exception and the burden that a movant must satisfy in order to gain its application. . . . Although courts of appeals routinely articulate the same two-pronged test, it is the precise quantum of proof requisite to satisfy those elements which divides the various courts.")

Case Date Jurisdiction State Cite Checked
2014-06-03 Federal PA

Chapter: 18.902
Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. No. 2:06-cv-1797, 2014 U.S. Dist. LEXIS 2344, at *17 (E.D. Pa. Jan. 9, 2014)
(analyzing the crime-fraud exception; "In recognition of the reality that many abuses of the privilege would be impossible to prove without examination of the communications at issue, a 'lesser evidentiary showing is needed' to permit a judge to exercise his discretion to review the documents in camera. . . . To make in camera review permissible, the movant must produce sufficient evidence to 'support a reasonable belief that in camera review may yield evidence that establishes the exception's applicability.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2014-01-09 Federal PA B 6/14

Chapter: 18.902
Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 692, 687 (3d Cir. 2014)
(concluding that the crime-fraud exception did not apply if the client formed a criminal intent after obtaining advice; "Because it is often difficult or impossible to prove that the exception applies without delving into the communications themselves, the Supreme Court has held that courts may use in camera review to establish the applicability of the exception.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 18.902
Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 688, 689 (3d Cir. 2014)
(analyzing the crime-fraud exception; assessing whether the court could conduct an in camera review of the withheld documents; "[I]n camera examination of a witness implicates different concerns than examination of documents or recordings, so we must determine whether we should adopt the Zolin [United States v. Zolin, 481 U.S. 554 (1989)] standard where unmemorialized oral communications are at issue."; "If we were to apply a heightened standard to oral communications, would-be criminals could use the differing standards to avoid the proper application of the crime-fraud exception. A client could seek to take advantage of the higher showing necessary to delve into oral communications by instructing the attorney not to record the communications in any way. We do not want to incentivize circumventing the proper application of the crime-fraud exception. As for the due process implications, we believe that a district court can properly be entrusted to consider the due process interests and circumstances in each case, and use its discretion to fashion a proper procedure for the in camera examination."; "The risk of inaccuracies is mitigated by the fact that the attorney will be under oath and face questioning from a judge rather than an adversary."; "[W]e hold that district courts should use the Zolin standard to determine whether to examine a witness in camera. Before a district court can undertake an in camera examination of an attorney-witness to determine the applicability of the crime-fraud exception, the party seeking to overcome the privilege must make a 'showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 18.902
Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 687, 689, 690 (3d Cir. 2014)
(concluding that the crime-fraud exception did not apply if the client formed a criminal intent after obtaining advice; "Because it is often difficult or impossible to prove that the exception applies without delving into the communications themselves, the Supreme Court has held that courts may use in camera review to establish the applicability of the exception."; "For these reasons, we hold that district courts should use the Zolin [United States v. Zolin, 491 U.S. 554 (1989)] standard to determine whether to examine a witness in camera. Before a district court can undertake an in camera examination of an attorney-witness to determine the applicability of the crime-fraud exception, the party seeking to overcome the privilege must make a 'showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'" (citation omitted); "Intervenors contest the District Court's decision to exclude them from the in camera examination of Attorney and its refusal to release a transcript or summary of the examination. In considering Intervenors' request to attend the in camera examination, the District Court concluded that the balance between the need for grand jury secrecy and protection of the attorney-client privilege could only be met if neither Intervenors nor the Government were present during the examination of Attorney. The District Court denied Intervenors' request for a transcript, redacted transcript, or summary of the examination testimony for similar reasons.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 18.902
Case Name: Peerless Indus., Inc. v. Crimson AV LLC, Case No. 11 C 1768, 2013 U.S. Dist. LEXIS 162148, at *10-11 (N.D. Ill. Nov. 14, 2013)
("Oftentimes, to make out its prima facie case that the crime-fraud exception applies to a particular document, a party will ask the court to review that document in camera. The showing a party must make to justify an in camera review is less stringent than the showing it must make to present a prima facie case that the crime-fraud exception applies. . . . Contrary to Defendants's assertions that an in camera review is 'required' if this showing is made . . . the Supreme Court has stated that once the proponent of the review makes a sufficient showing, 'the decision whether to engage in in camera review rests in the sound discretion of the district court.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-11-14 Federal IL B 5/14

Chapter: 18.902
Case Name: Peerless Indus., Inc. v. Crimson AV LLC, Case No. 11 C 1768, 2013 U.S. Dist. LEXIS 162148, at *13, *17 (N.D. Ill. Nov. 14, 2013)
("Some courts have recognized that committing 'fraud on the court' is grounds to apply the crime-fraud exception."; "[I]t was reasonable for Judge Cox to conclude that there was insufficient evidence to find that a reasonable person would have a good faith belief that an in camera inspection might uncover evidence of a crime or fraud.")

Case Date Jurisdiction State Cite Checked
2013-11-14 Federal IL B 5/14

Chapter: 18.902
Case Name: Safety Today, Inc. v. Roy, Case No. 2:12-cv-510, 2013 U.S. Dist. LEXIS 147765, at **19, *20 (S.D. Ohio Oct. 11, 2013)
(finding that tortious interference claims can fall under the crime-fraud exception; "Proof by even a preponderance of the evidence is not needed; rather, the requesting party's burden is satisfied by showing that there is a 'reasonable basis' for the privilege challenger's claim." (citation omitted); "[T]here is at least prima facie evidence to support their claim. The wording used in the letter can be read as a misstatement of Judge Watson's order, and the identity of the recipients, the letter's strong suggestion that the defendants were engaged in either illegal or unethical conduct, and Safety Today's tracking of the responses permits an inference that it was Safety Today's intent to make it harder for defendants to compete with Safety Today. That is a sufficient showing to justify at least an in camera review of the withheld documents.")

Case Date Jurisdiction State Cite Checked
2013-10-11 Federal OH B 5/14

Chapter: 18.902
Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *24 (N.D. Ohio Aug. 8, 2013)
("The Sixth Circuit applies a two-part test to determine whether the crime-fraud exception should be invoked. First, the party seeking disclosure must make a prima facie showing that a serious crime or fraud occurred. . . . Second, the party must also establish a relationship between the communication at issue and the prima facie violation.")

Case Date Jurisdiction State Cite Checked
2013-08-08 Federal OH B 4/14

Chapter: 18.902
Case Name: In the Matter of New York City Asbestos Litig.: Weitz & Luxenberg P.C. v. Georgia-Pacific LLC, 40000/88,9535, 109 A.D. 3d 7, 966 N.Y.S. 2d 420, 2013 N.Y. App. Div. LEXIS 4036 (N.Y. Sup. Ct. 1d June 6, 2013)
(concluding that plaintiffs could satisfy the crime-fraud standard, and therefore ordering in camera review of defendant Georgia-Pacific's communications expert involved in authoring favorable articles; "GP funded these studies in 2005 to aid in its defense of asbestos-related lawsuits. The studies were performed by experts from various organizations, who, among other things, recreated GP's historical joint compound product for the purpose of testing its biopersistence and pathogenicity. To facilitate the endeavor, GP entered into a special employment relationship with Stewart Holm, its Director of Toxicology and Chemical Management, to perform expert consulting services under the auspices of its in-house counsel, who also was significantly involved in the prepublication review process."; "Holm coauthored nearly all of the studies, which were intended to cast doubt on the capability of chrysotile asbestos to cause cancer. On the two articles that he did not coauthor, he and GP's counsel participated in lengthy 'WebEx conferences" in which they discussed the manuscripts and suggested revisions. Despite this extensive participation, none of the articles disclosed that GP's in-house counsel had reviewed the manuscripts before they were submitted for publication."; "The foregoing constitutes a sufficient factual basis for a find that the relevant communications could have been in furtherance of a fraud, and the motion court properly confirmed the recommendation directing in camera review of the internal documents."; finding that plaintiffs could overcome any work product protection for materials related to the article; "Plaintiffs will be prejudiced if they are prevented from discovering the data, protocols, process, conduct, discussion, and analyses underlying these studies. A significant expenditure of time and money would be required to duplicate the studies, if they could be exactly duplicated at all, whereas scrutiny of the underlying data may provide a permissible manner in which to attack the findings that would be consistent with the intent of the CMO to minimize the cost of and streamline discovery.")

Case Date Jurisdiction State Cite Checked
2013-06-06 State NY

Chapter: 18.902
Case Name: In re 650 Fifth Ave. & Related Props., No. 08 Civ. 10934 (KBF), 2013 U.S. Dist. LEXIS 64150, at *9 (S.D.N.Y. Apr. 24, 2013)
("The Court itself is not going to engage in an exercise that is the Government's burden of matching up particular entries that might, for instance, show a temporal tie between events alleged to be in furtherance of a fraud and an entry on a log. If that exercise is presented and demonstrates possible connections, then the Government may establish its initial burden of making a probable cause showing -- [and] this Court might request an in camera review. However, a wholesale assertion of the type made here simply will not work.")

Case Date Jurisdiction State Cite Checked
2013-04-24 Federal NY B 7/13

Chapter: 18.902
Case Name: United States v. Pons, No. 11 CR 670, 2013 U.S. Dist. LEXIS 35903, at *12 (N.D. Ill. Mar. 15, 2013)
("The district court may also, if necessary, 'examine the privileged communications themselves to determine whether they further a crime or fraud, so long as there is a 'showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'. . . Because in camera review requires 'a smaller intrusion upon the confidentiality of the attorney-client relationship than [] public disclosure,' a 'lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal IL B 3/14

Chapter: 18.902
Case Name: Amusement Indus., Inc. v. Stern, 203 F.R.D. 420, 427 n.4 (S.D.N.Y. 2013)
(finding the crime-fraud exception applicable; "'While it is not at issue here, we note that "[a] lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege.'. . . However, in camera review of documents is unnecessary where, as it true here, independent evidence provides probable cause to believe that attorney communications took place in furtherance of a crime or fraud.'")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NY B 2/14

Chapter: 18.902
Case Name: Cedell v. Farmers Ins. Co. of Wash., 295 P.3d 239, 246 (Wash. 2013)
(analyzing privilege issues in connection with an insurance bad faith claim; "The fraud exception to the attorney-client privilege is deeply rooted in our jurisprudence. . . . Our courts have followed a two-step approach. The first step is to invoke an in camera review and requires a showing that a reasonable person would have a reasonable belief that an act of bad faith tantamount to civil fraud has occurred.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State WA B 3/14

Chapter: 18.902
Case Name: People v. Radojcic, 998 N.E.2d 1212, 1223 n.4 (Ill. 2013)
("This evidentiary burden has been described as both a prima facie showing and a probable cause showing.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 5/14

Chapter: 18.902
Case Name: People v. Radojcic, 998 N.E.2d 1212, 1223 (Ill. 2013)
(analyzing the crime-fraud exception in a criminal prosecution involving alleged mortgage fraud; "This evidentiary showing is lesser than the showing ultimately needed to establish application of the crime-fraud exception. . . . Ideally, in camera review should be conducted by a judge other than the judge presiding over the matter at which the communications would be introduced. . . . In camera questioning of the attorney must be narrowly tailored so that confidential information is not needlessly disclosed."; "Overall, the approach adopted in Decker [In re Marriage of Decker, 606 N.E.2d 1094 (Ill. 1992)] for in camera review balances the interests protected by the attorney-client privilege with this state's "strong policy of encouraging disclosure, with an eye toward ascertaining that truth which is essential to the proper disposition of a lawsuit.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 5/14

Chapter: 18.902
Case Name: People v. Radojcic, 998 N.E.2d 1212, 1226 (Ill. 2013)
("As Decker [In re Marriage of Decker, 606 N.E.2d 1094 (Ill. 1992)] makes plain, a lesser showing is required for in camera review.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 5/14

Chapter: 18.902
Case Name: In re Grand Jury, 705 F.3d 133, 152 (3d Cir. 2012)
(finding the crime-fraud exception applicable; "When the Supreme Court last addressed the crime-fraud exception, it did little to clarify the necessary evidentiary showing. Because it is difficult to determine whether a document contains communications used in furtherance of a crime or fraud, courts sometimes review the allegedly privileged materials in camera to decide whether the crime-fraud exception applies to preclude the privilege. The Supreme Court affirmed the permissibility of that practice in Zolin [United States v. Zolin, 491 U.S. 554 (1989)] so long as there is independent evidence 'sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception's applicability.'. . . The Court indicated that this is a 'lesser evidentiary showing' than is 'required ultimately to overcome the privilege,'. . . but declined to address the amount of proof that is ultimately required")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal B 8/13

Chapter: 18.902
Case Name: United States v. Oracle Corp., Civ. A. No. 1:07cv529 (LMB/TRJ), 2011 U.S. Dist. LEXIS 72377, at *5-6 (E.D. Va. July 6, 2011)
("Defendants and Reed Smith urge that a second in camera review would be required, on the ground that some documents contain and/or reflect attorney-client communications, fact work product, and opinion work product in the same document. Defendants and Reed Smith argue that the magistrate judge's review occurred in the context of attorney-client privilege, and that the magistrate judge therefore did not examine the work product contained in the documents for the 'close relationship' required by the Fourth Circuit test for crime/fraud. As the April 21, 2011 memorandum opinion indicates, however, that the magistrate judge reviewed 'documents,' not simply communications. See United States ex rel. Frascella v. Oracle Corp., No. 1:07-cv-00529, 2011 U.S. Dist. LEXIS 43322 (E.D. Va. April 21, 2011) ('Many of the documents just reviewed . . . .'; '[T]he magistrate judge refers the district judge to the documents logged with the numbers listed in the footnote.'; 'The documents reviewed in camera . . . .'; '[T]hese documents are responsive . . . . The magistrate judge finds that they likewise bear a "close relationship" to the scheme alleged.') (emphasis added). The review that has been conducted is thus sufficient to support the application of the crime/fraud exception to fact work product.")

Case Date Jurisdiction State Cite Checked
2011-07-06 Federal VA

Chapter: 18.902
Case Name: United States v. Under Seal # 4 (In re Grand Jury Subpoena # 06-1), 274 F. App'x 306, 309-10, 309 (4th Cir. 2008) (unpublished opinion)
(assessing the crime-fraud exception; "The district court may determine whether the crime fraud exception applies in one of two ways. As the Supreme Court explained in Zolin, the court may examine the assertedly privileged documents themselves in an in camera hearing, provided that the party invoking the exception, here the Government, first makes a threshold 'showing of a factual basis adequate to support a good faith belief by a reasonable person' that the hearing would reveal evidence of crime or fraud. . . . Alternatively, the district court may 'examine[] evidence from the opponent of the privilege,' here the Government, 'ex parte and in camera without examining the allegedly privileged documents themselves.' . . . Under this approach, the Government would not be required to make a threshold showing regarding the factual basis for application of the exception prior to making the in camera submission. . . . In either case, however, on remand the Government bears the burden of establishing a prima facie case demonstrating that the crime fraud exception applies."; "[T]he Government has made a colorable argument that the crime fraud exception would apply to the withheld communications. We find it appropriate, therefore, to vacate the district court's order and remand the case to allow the court to consider the Government's contention that 'the client was engaged in or planning a criminal or fraudulent scheme when he sought the advise [sic] of counsel to further the scheme' and that those communications 'bear a close relationship to the client's existing or future scheme to commit a crime or fraud.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2008-01-01 Federal B 6/09; n

Chapter: 18.902
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 255 (4th Cir. 2005)
(holding that the district court could not have applied the crime-fraud exception because it did not review the documents in camera, and therefore could not have concluded that the privileged communications bore a "close relationship to their existing or future scheme to commit a crime or fraud"; remanding for the court to conduct an in camera review or otherwise analyze the crime-fraud exception properly)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 18.902
Case Name: Peterson v. Fairfax Hosp. Sys., Inc., 32 Va. Cir. 294, 296 (Va. Cir. Ct. 1993)
(finding that a party had made a sufficient showing to justify in camera review of privileged documents to determine if the crime-fraud exception applied; "in order for the Court to undertake such an in camera review, the Plaintiffs must demonstrate by relevant evidence, lawfully obtained, and not adjudicated to be privileged, that there exists a reasonable belief that in camera review may yield evidence establishing the exception's applicability")

Case Date Jurisdiction State Cite Checked
1993-01-01 State VA

Chapter: 18.903
Case Name: United States v. Joyce, Crim A. No. 17-10378-NMG, 2018 U.S. Dist. LEXIS 75513 (D. Mass. May 4, 2018)
(analyzing the crime-fraud exception; ultimately ordering an in camera review; "Upon a proper showing by the government, judges have discretion to review privileged materials in camera to determine whether the crime-fraud exception applies."; "'[T]o support a good-faith belief by a reasonable person [that] in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'"; "The Court finds that the indictment provides a good faith reason to believe that Joyce retained and instructed Cooper [Lawyer] with the intent of committing or fostering the commission of a crime."; "The grand jury indictment supports a good-faith belief that in camera review may reveal evidence that the crime-fraud exception applies.")

Case Date Jurisdiction State Cite Checked
2018-05-04 Federal MA

Chapter: 18.903
Case Name: Hale v. Emporia State Univ., Case No. 16-cv-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 26562 (D. Kansas Feb. 20, 2018)
(analyzing protection for a defendant's human resource representative's interview notes of a plaintiff, taken as part of an investigation into racial discrimination; "At the August 28, 2017 scheduling conference with the Court, Plaintiff requested that ESU produce a copy of its internal investigation report referred to as the '350-plus page' investigative report disclosed during a press conference held by ESU. Counsel for ESU agreed to early production of the report, subject to redactions for attorney work product and privilege."; "Under the crime-fraud exception, '[t]he attorney-client privilege does not apply where the client consults an attorney to further a crime or fraud.' The crime-fraud exception also applies to documents claimed to be protected from discovery as work product. The purpose of the crime-fraud exception is to assure that the seal of secrecy between the attorney and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime. The crime-fraud exception has not been extended to torts generally. The party claiming that the crime-fraud exception applies must present prima facie evidence that the allegation of attorney participation in a crime or fraud has some foundation in fact. The determination of whether such a prima facie showing has been made is left to the sound discretion of the district court."; "Having found Plaintiff has not made a prima facie showing ESU's actions constituted fraud, the Court considers whether it must conduct an in camera review of the documents withheld by ESU to determine the applicability of the crime-fraud exception."; "The decision whether to conduct an in camera review is left to the sound discretion of the district court."; "In cases where the crime-fraud exception is at issue, the court may conduct an in camera review to determine the applicability of the crime-fraud exception, but only if the party requesting such a review makes a 'showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish that the crime-fraud exception applies.' This evidentiary standard requires less than what is required ultimately to overcome the privilege. In making this decision, the court should consider the facts and circumstances of the particular case including, among other things, the volume of materials to be reviewed, the relative importance of the alleged privileged information to the case, and the likelihood that the evidence produced through in camera review, together with other available evidence then before the court, will establish that the crime-fraud exception does apply. In contrast to the Zolin standard for determining whether to conduct an in camera review, the Court notes that Kansas law prohibits review of the actual communications in determining whether the fraud-crime exception applies. Plaintiff's claims in this case arise under federal statute, therefore federal law (instead of state law) governs any claim of privilege. The Court will therefore apply the standard set out in Zolin."; "In light of the deficiencies noted above in establishing all the elements required to show fraud, the Court finds the evidence presented by Plaintiff in her motion and briefing does not establish a 'factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish that the crime-fraud exception applies.' Accordingly, the Court declines to conduct an in camera review of the withheld documents for purposes of the crime-fraud exception to attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2018-02-20 Federal KS
Comment:

key case


Chapter: 18.903
Case Name: United States v. Levin, 15 Cr. 101 (KBF), 2015 U.S. Dist. LEXIS 137615 (S.D.N.Y. Oct. 5, 2015)
("To order an in camera review of documents for which the attorney-client privilege has been claimed, the Court must find that the Government makes a 'showing of a factual basis adequate to support a good faith belief by a reasonable person . . . That in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'. . . Once such a showing has been made, the Court has the discretion to engage in an in camera review.")

Case Date Jurisdiction State Cite Checked
2015-10-05 Federal NY

Chapter: 18.903
Case Name: United States v. Levin, 15 Cr. 101 (KBF), 2015 U.S. Dist. LEXIS 137615 (S.D.N.Y. Oct. 5, 2015)
("While the Court concludes that the Government has made a sufficient showing of probable cause, the Court does not believe that the result is so obvious such that it would be appropriate to order defendants to immediately produce the documents at issue to the Government. Instead, the Court exercises its discretion to order the documents to first be produced to the Court for in camera review. . . . An in camera review will place the Court in the best position to make an informed decision as to whether invasion of the attorney-client privilege is justified.")

Case Date Jurisdiction State Cite Checked
2015-10-05 Federal NY

Chapter: 18.903
Case Name: In re Subpoena to Testify Before Grand Jury, Case No. 15-mc-80207-JSC, 2015 U.S. Dist. LEXIS 122305 (N.D. Cal. Sept. 14, 2015)
("Where the party challenging the privilege lacks sufficient evidence to establish reasonable cause to believe the crime-fraud exception applies, the court may instead review the actual documents sought in camera if the moving party can meet a lower threshold. Specifically, the moving party need only demonstrate a 'factual basis adequate to support a good faith belief by a reasonable person' that in camera review of the documents will reveal evidence showing that the crime-fraud exception applies. . . . Once that initial showing has been made, 'the decision whether to engage in in camera review rests in the sound discretion of the district court.'").

Case Date Jurisdiction State Cite Checked
2015-09-14 Federal CA

Chapter: 18.903
Case Name: Streamline Businss Services, LLC v. Vidible, Inc., Civ. A. No. 14-1433, 2015 U.S. Dist. LEXIS 107709 (E.D. Pa. Aug. 17, 2015)
(finding that an inadvertent production of a document did not result in a waiver; "Accordingly, the Court finds that plaintiff has failed to show the crime-fraud exception applies, and there is no need for an in camera hearing at this time.")

Case Date Jurisdiction State Cite Checked
2015-08-17 Federal PA

Chapter: 18.903
Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. No. 2:06-cv-1797, 2014 U.S. Dist. LEXIS 2344, at *17 (E.D. Pa. Jan. 9, 2014)
(analyzing the crime-fraud exception; "A judge has discretion to conclude that prudential concerns, such as the 'volume of materials the district court has been asked to review,' the 'relative importance to the case of the alleged privileged information,' and the 'likelihood that evidence produced through in camera review . . . will establish that the crime-fraud exception does apply,' render in camera review unwise." (citation omitted))

Case Date Jurisdiction State Cite Checked
2014-01-09 Federal PA B 6/14

Chapter: 18.903
Case Name: Peerless Indus., Inc. v. Crimson AV LLC, Case No. 11 C 1768, 2013 U.S. Dist. LEXIS 162148, at *10-11 (N.D. Ill. Nov. 14, 2013)
("Oftentimes, to make out its prima facie case that the crime-fraud exception applies to a particular document, a party will ask the court to review that document in camera. The showing a party must make to justify an in camera review is less stringent than the showing it must make to present a prima facie case that the crime-fraud exception applies. . . . Contrary to Defendants's assertions that an in camera review is 'required' if this showing is made . . . the Supreme Court has stated that once the proponent of the review makes a sufficient showing, 'the decision whether to engage in in camera review rests in the sound discretion of the district court.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-11-14 Federal IL B 5/14

Chapter: 18.903
Case Name: Davis v. Hugo Enters., LLC, No. 8:11CV221, 2013 U.S. Dist. LEXIS 3357, at *11 (D. Neb. Jan. 9, 2013)
("At least at this point, Plaintiffs have not offered sufficient evidence to show a factual basis adequate to support a good faith belief by a reasonable person that the crime-fraud exception applies. The Court will not conduct an in camera review of the documents in question and Plaintiffs' motion to compel will be denied with respect to Interrogatory No. 2 and Document Production Request Nos. 5 and 6.")

Case Date Jurisdiction State Cite Checked
2013-01-09 Federal NE B 7/13

Chapter: 18.903
Case Name: Amusement Indus., Inc. v. Stern, 203 F.R.D. 420, 427 n.4 (S.D.N.Y. 2013)
(finding the crime-fraud exception applicable; "'While it is not at issue here, we note that "[a] lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege.'. . . However, in camera review of documents is unnecessary where, as it true here, independent evidence provides probable cause to believe that attorney communications took place in furtherance of a crime or fraud.'")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NY B 2/14

Chapter: 18.903
Case Name: People v. Radojcic, 998 N.E.2d 1212, 1226 (Ill. 2013)
(analyzing the crime-fraud exception in a criminal prosecution involving alleged mortgage fraud; "Decker [In re Marriage of Decker, 606 N.E.2d 1094 (Ill. 1992)] did not hold that in camera review is required in every case before a court can determine that the crime-fraud exception applies. Rather, Decker simply recognized the often difficult task of proving the exception using only evidence independent of the communication itself. . . . Had this court intended in camera review to be a requirement in every case in which the crime-fraud exception is at issue, we would not have left the decision to conduct in camera review to the trial court's discretion."; "Zolin [United States v. Zolin, 491 U.S. 554 (1989)], on which Decker relied, also makes plain that in camera review is not indispensable to a showing that the crime-fraud exception applies. . . . Moreover, we agree with Zolin that a blanket rule allowing or requiring in camera review as a tool for determining the applicability of the crime-fraud exception would place an undue burden on our trial courts.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 5/14

Chapter: 18.903
Case Name: People v. Radojcic, 998 N.E.2d 1212, 1226 (Ill. 2013)
("We have already determined that any communication relating to the real estate transactions identified in the indictment furthered the alleged fraud and are not shielded by the attorney-client privilege. No reason exists for Helfand [defendant's former lawyer] to be examined in camera prior to testifying at trial.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 5/14

Chapter: 18.903
Case Name: People v. Radojcic, 998 N.E.2d 1212, 1226 (Ill. 2013)
("Zolin [United States v. Zolin, 491 U.S. 554 (1989)], on which Decker [In re Marriage of Decker, 606 N.E.2d 1094 (Ill. 1992)] relied, also makes plain that in camera review is not indispensable to a showing that the crime-fraud exception applies.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 5/14

Chapter: 18.903
Case Name: United States v. Under Seal (In re Grand Jury Investigation), 352 F. App'x 805, 809-10 (4th Cir. 2009)
("In its ex parte submission, the Government has provided the court with prima facie evidence that the Corporation, its principals and the Isle of Man Entity had an agreement to defraud the United States Government in contravention of § 371. . . . The crime-fraud exception is limited to those communications and documents in furtherance of future or ongoing criminal or fraudulent conduct. In re Grand Jury Subpoena, 419 F.3d at 343. Therefore, a party seeking access to materials via the crime-fraud exception must demonstrate a close relationship between the desired materials and an alleged criminal or fraudulent conduct. In re Grand Jury Proceedings # 5, 401 F.3d at 251. However, in making the close relationship determination, courts must take into account that the party invoking the crime-fraud exception, here the Government, does not know exactly what the material will show. See In re Grand Jury Investigation, 842 F.2d 1223, 1227 (11th Cir. 1987). Courts can base a finding of the requisite close relationship on an examination of an in camera submission of evidence by the party invoking the exception so long as the court has some evidence of the contents of the withheld material. See In re Grand Jury Proceedings, 33 F.3d at 351; cf. In re Grand Jury Proceedings # 5, 401 F.3d at 255. In making this finding we review both the Government's ex parte submission of evidence and Counsel's privilege log, which references documents from as early as 1986. The Government's evidence indicates that the Corporation's scheme to defraud the United States dates back as far as 1984 and that the Corporation sought Counsel's legal advice for the sole purpose of facilitating its scheme to defraud the United States. Therefore, all of the withheld documents bear the requisite close relationship to the alleged violation of § 371 because they were in furtherance of the alleged scheme. We conclude that the Government has made a prima facie showing that there is a close relationship between the withheld documents and the alleged violation of § 371.")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal

Chapter: 18.903
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 253 n.5 (4th Cir. 2005)
(explaining that a judge might decide that the crime-fraud exception applies without conducting an in camera review of the privileged communications, although noting that two circuits "have found that a district court must review allegedly privileged documents in camera before determining whether the crime-fraud exception applies")

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 18.903
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 255 (4th Cir. 2005)
(holding that the district court could not have applied the crime-fraud exception because it did not review the documents in camera, and therefore could not have concluded that the privileged communications bore a "close relationship to their existing or future scheme to commit a crime or fraud"; remanding for the court to conduct an in camera review or otherwise analyze the crime-fraud exception properly)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 18.903
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 255 (4th Cir. 2005)
("We thus remand this case back to the district court either to examine the actual documents (or summaries thereof) in camera or to otherwise determine whether they satisfy prong two of the crime-fraud exception as it applies to attorney-client privilege. In so doing, we do not hold that a district court must examine allegedly privileged documents (or summaries thereof) in camera before determining whether the crime-fraud exception applies. A district court may be able to determine by other means that allegedly privileged documents are connected to a crime or fraud such as through testimony or a reliable government proffer.")

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal

Chapter: 18.1001
Case Name: In re Grand Jury Subpoena ABC Co., No. 16-3479, 2017 U.S. App. LEXIS 10690 (3rd Dis. App. June 16, 2017)
("To satisfy its burden of providing a 'reasonable basis' to apply the crime-fraud exception, the Government offered three pieces of 'evidence' in its brief. First, the Government alleges the purported author of the letter submitted with the MOR Response testified that he neither wrote the letter nor authorized anyone to prepare such a letter. Second, the Government states the MOR Response contained other, unspecified misleading and false statements. Third, the Government asserted that ABC Company hired Law Firm to assist it in preparing the MOR Response. The District Court concluded that those assertions were sufficient to support application of the crime-fraud exception. We disagree."; "Even if unsupported arguments by counsel qualified as 'evidence,' the Government's assertions have other weaknesses. A vague allegation that the MOR Response contains unspecified false statements fails to meet the 'reasonably demanding' evidentiary standard we must apply. . . . Given the limited record here, we also question whether Law Firm's advice was used in furtherance of submitting the fraudulent letter."; "On remand, the Government should nevertheless have leave to provide a sufficient factual basis to support application of the crime-fraud exception. That evidence may take various forms, including ex parte affidavits . . . the Government may request the District Court to perform an in camera review of Law Firm's privileged documents upon 'a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'")

Case Date Jurisdiction State Cite Checked
2017-06-16 Federal

Chapter: 18.1001
Case Name: In re Animation Workers Antitrust Litigation, Case No. 5:14-cv-04062-LHK, 2016 U.S. Dist. LEXIS 44154 (N.D. Cal. March 30, 2016)
(finding the crime-fraud exception inapplicable, but noting that a civil antitrust violation could trigger the exception under different circumstances; "Last week, the court ordered Defendant Pixar to submit for in camera review various documents involving former Pixar Executive Vice President and General Counsel Lois Scali. Pixar has asserted that these documents are subject to the attorney-client privilege. Notwithstanding that assertion, and after considering evidence from Pixar supporting that assertion, the court held that Plaintiffs had shown there was 'a reasonable, good-faith belief that review of the privileged documents may reveal evidence to establish the claim that the crime fraud exception applies.' The exception applies where (1) the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme and (2) the attorney-client communications for which production is sought are 'sufficiently related to' and were made in furtherance of the intended, or present, continuing illegality."; "While Plaintiffs initially sought in camera review of the documents, what they ultimately seek is the documents' production. Production, as compared to mere in camera review, carries a higher burden of proof than merely a 'reasonable, good-faith belief.' In civil cases such as this one, that burden is preponderance of the evidence, or whether 'it is more likely than not that the party resisting the disclosures sought or used legal advice to commit or to try to commit a crime or fraud.' Having read each and every document submitted, the court holds that Plaintiffs' burden, at least as to the first part of the applicable test, is not yet met.")

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal CA

Chapter: 18.1001
Case Name: In re Grand Jury Subpoenas Dated March 2, 2015, 15-1976, 2015 U.S. App. LEXIS 17633 (2nd Cir. App. Oct. 6, 2015)
("Based on the facts before it, the district court did not clearly err in finding that there was probable cause to conclude that the tax protest was based on a false, undocumented transaction and that the Owner engaged in the tax protest as part of a strategy to further conceal that tax fraud and shirk his tax liabilities. The district court conducted an in camera review of the privileged communications at issue and concluded that those communications supported its determination that the crime-fraud exception applied. We have examined those privileged communications, the facts in the record, and the parties' ex parte submissions, and hold that the district court did not clearly err.")

Case Date Jurisdiction State Cite Checked
2015-10-06 Federal

Chapter: 18.1001
Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015)
(analyzing the crime-fraud exception; finding the crime-fraud exception applicable; "With respect to the procedure for review, the Supreme Court resolved the issue in Zolin. See Zolin, 491 U.S. at 557-574. The Court rejected the independent-evidence requirement and permitted the use of in camera review in cases involving the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2015-06-09 Federal CA

Chapter: 18.1001
Case Name: Plaza Insurance Company v. Lester, Civ. A. No. 14-cv-01162-LTB-CBS, 2015 U.S. Dist. LEXIS 72438, 2015 U.S. Dist. LEXIS 72438 (D.D.C. June 4, 2015)
(finding the crime-fraud exception applicable; "The Tenth Circuit has not articulated the precise requirements for establishing a prima facie showing; however, the party opposing the privilege must present evidence that the allegation of attorney participation in the fraudulent conduct has some foundation in fact. . . . Other circuits require a similar showing. The movant may satisfy their burden by presenting documentary evidence or testimony that is already in the record. . . . When a movant has presented competent evidence, the party seeking to rely on the privilege or work product protection must come forward with rebuttal evidence. . . . A determination of whether the movant has satisfied their burden lies in the discretion of the court.")

Case Date Jurisdiction State Cite Checked
2015-06-04 Federal DC

Chapter: 18.1001
Case Name: Malbco Holdings, LLC v. Patel, 6:14-cv-00947-PK, 2015 U.S. Dist. LEXIS 62501 (D. Ore. May 13, 2015)
("The party invoking the crime-fraud exception must make a prima facie case of fraud. . . . If the court determines, based on that evidence, to conduct an in camera review, then the court may weigh that evidence revealed from its review together with other evidence offered by the party invoking the exception to determine whether the crime-fraud exception to the attorney-client privilege applies.")

Case Date Jurisdiction State Cite Checked
2015-05-13 Federal OR

Chapter: 18.1001
Case Name: United States v. Weed, Crim. No. 14-cr-10348-DPW, 2015 U.S. Dist. LEXIS 52538 (D. Mass. April 14, 2015)
(finding the crime-fraud exception applicable; "[T]here is no obligation that the holder of the privilege be advised of the application of the crime-fraud exception. Rather, the government may proffer ex parte the evidence on which it relies to establish the applicability of the crime-fraud exception, and 'the court may weigh that evidence, gauge its adequacy, and rule on the claim without affording the putative privilege-holder a right to see the evidence proffered or an opportunity to rebut it.'")

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal MA

Chapter: 18.1001
Case Name: In re Infinity Business Group, Inc., Bankruptcy Case No. 10-06335-jw, Adv. Proc. No. 12-80208-jw, Ch. 7, 2015 Bankr. LEXIS 1560 (D.S.C. April 3, 2015)
("The party asserting the applicability of the crime-fraud exception carries the burden of making a prima facie showing that the privileged communications fall within the exception. . . . Other than generic references to the Complaint, the MK Defendants have not presented any evidence to demonstrate that the privileged communications fall within the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal SC

Chapter: 18.1001
Case Name: Ishee v. Federal National Mortgage Association, Civ. A. No. 2:13-cv-234-KS-MTP, 2014 U.S. Dist. LEXIS 71141 (S.D. Miss. May 23, 2014)
("The party seeking to invoke the crime-fraud exception bears the burden of establishing a prima facie case that the attorney-client relationship was intended to further criminal or fraudulent activity. . . . To make the necessary prima facie showing, Plaintiff 'must produce evidence such as will suffice until contradicted and overcome by other evidence' to establish the elements of a crime or fraud. . . . 'Allegations in pleadings are not evidence and are not sufficient to make a prima facie showing that the crime-fraud exception applies.'. . . Also, Plaintiff must show 'some valid relationship between the work product under subpoena and the prima facie violation' or that the 'material reasonably relate[s] to the fraudulent activity.'")

Case Date Jurisdiction State Cite Checked
2014-05-23 Federal MS

Chapter: 18.1001
Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 687, 689, 690 (3d Cir. 2014)
(concluding that the crime-fraud exception did not apply if the client formed a criminal intent after obtaining advice; "Because it is often difficult or impossible to prove that the exception applies without delving into the communications themselves, the Supreme Court has held that courts may use in camera review to establish the applicability of the exception."; "For these reasons, we hold that district courts should use the Zolin [United States v. Zolin, 491 U.S. 554 (1989)] standard to determine whether to examine a witness in camera. Before a district court can undertake an in camera examination of an attorney-witness to determine the applicability of the crime-fraud exception, the party seeking to overcome the privilege must make a 'showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'" (citation omitted); "Intervenors contest the District Court's decision to exclude them from the in camera examination of Attorney and its refusal to release a transcript or summary of the examination. In considering Intervenors' request to attend the in camera examination, the District Court concluded that the balance between the need for grand jury secrecy and protection of the attorney-client privilege could only be met if neither Intervenors nor the Government were present during the examination of Attorney. The District Court denied Intervenors' request for a transcript, redacted transcript, or summary of the examination testimony for similar reasons.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 18.1001
Case Name: People v. Radojcic, 998 N.E.2d 1212, 1223 (Ill. 2013)
(analyzing the crime-fraud exception in a criminal prosecution involving alleged mortgage fraud; "The difficulty of making this evidentiary showing lies in the fact that the best and often only evidence of whether the exception applies is the allegedly privileged communication itself. . . . 'However, if the communication itself is used to make the initial determination of whether the crime-fraud exception applies, the privilege is violated and the protected interest suffers because of the forced public revelation.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 5/14

Chapter: 18.1001
Case Name: Amusement Indus., Inc. v. Stern, 203 F.R.D. 420, 427 n.4 (S.D.N.Y. 2013)
(finding the crime-fraud exception applicable; "'While it is not at issue here, we note that "[a] lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege.'. . . However, in camera review of documents is unnecessary where, as it true here, independent evidence provides probable cause to believe that attorney communications took place in furtherance of a crime or fraud.'")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NY B 2/14

Chapter: 18.1001
Case Name: In re Grand Jury, 705 F.3d 133, 153-54 (3d Cir. 2012)
(finding the crime fraud exception applicable; "[T]he party opposing the privilege is not required to introduce evidence sufficient to support a verdict of crime or fraud or even to show that it is more likely than not that the crime or fraud occurred.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal B 8/13

Chapter: 18.1001
Case Name: United States v. Under Seal (In re Grand Jury Investigation), 352 F. App'x 805, 809-10 (4th Cir. 2009)
("In its ex parte submission, the Government has provided the court with prima facie evidence that the Corporation, its principals and the Isle of Man Entity had an agreement to defraud the United States Government in contravention of § 371. . . . The crime-fraud exception is limited to those communications and documents in furtherance of future or ongoing criminal or fraudulent conduct. In re Grand Jury Subpoena, 419 F.3d at 343. Therefore, a party seeking access to materials via the crime-fraud exception must demonstrate a close relationship between the desired materials and an alleged criminal or fraudulent conduct. In re Grand Jury Proceedings # 5, 401 F.3d at 251. However, in making the close relationship determination, courts must take into account that the party invoking the crime-fraud exception, here the Government, does not know exactly what the material will show. See In re Grand Jury Investigation, 842 F.2d 1223, 1227 (11th Cir. 1987). Courts can base a finding of the requisite close relationship on an examination of an in camera submission of evidence by the party invoking the exception so long as the court has some evidence of the contents of the withheld material. See In re Grand Jury Proceedings, 33 F.3d at 351; cf. In re Grand Jury Proceedings # 5, 401 F.3d at 255. In making this finding we review both the Government's ex parte submission of evidence and Counsel's privilege log, which references documents from as early as 1986. The Government's evidence indicates that the Corporation's scheme to defraud the United States dates back as far as 1984 and that the Corporation sought Counsel's legal advice for the sole purpose of facilitating its scheme to defraud the United States. Therefore, all of the withheld documents bear the requisite close relationship to the alleged violation of § 371 because they were in furtherance of the alleged scheme. We conclude that the Government has made a prima facie showing that there is a close relationship between the withheld documents and the alleged violation of § 371.")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal

Chapter: 18.1001
Case Name: United States v. Under Seal (In re Grand Jury Investigation), 352 F. App'x 805, 808 (4th Cir. 2009)
("The invocation of the crime-fraud exception requires a prima facie showing that '(1) the client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme, and (2) the documents containing the privileged materials bear a close relationship to the client's existing or future scheme to commit a crime or fraud.' In re Grand Jury Proceedings # 5, 401 F.3d at 251 (citations omitted). A party invoking the crime-fraud exception can satisfy the first prong of this test by making a prima facie showing of evidence, which, if accepted by the trier of fact, establishes the elements of an ongoing or prospective violation of the law. . . . The second prong of this test is satisfied with a showing of a close relationship between the withheld communications and the alleged violation. . . . Once a sufficient showing has been made, the attorney-client privilege ceases to protect any of the communications related to the alleged violation. In re Grand Jury Subpoena, 419 F.3d 329, 345 (5th Cir. 2005) (citing In re Sealed Case, 676 F.2d 793, 812 n.74, 219 U.S. App. D.C. 195 (D.C. Cir. 1982)). . . . the district court could decide whether the crime-fraud exception applies in either of two ways. See In re Grand Jury Subpoena # 06-1, 274 F. App'x at 309. One approach permits the district court to examine the withheld documents in an in camera hearing after the Government makes a factual showing that would support a good faith belief by a reasonable person that an examination of the withheld documents would reveal evidence of a violation of the law. Id. at 310 (citations omitted). In the alternative, the district court could make a determination that the crime-fraud exception applied without examining the withheld documents by conducting an ex parte and in camera examination of evidence from the Government. Id. This second alternative does not require that the Government make a threshold factual showing of the basis for the application of the crime-fraud exception. Id. In determining whether the crime-fraud exception applies, courts may rely on evidence not ordinarily admissible at trial. In re Grand Jury Subpoena, 884 F.2d at 127.")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal

Chapter: 18.1001
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 831 (E.D. Va. 2005)
(holding that the crime-fraud exception applied to communications between a jailed inmate and his lawyer, because "The party asserting the crime-fraud exception to the privilege here, the government bears the burden to establish a prima facie case that the communications in question fall outside the scope of the privilege. In re Grand Jury Proceedings # 5, 401 F.3d at 251; Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999). To overcome an established privilege using the crime-fraud exception, the government must show that the communications (i) were made for an unlawful purpose or to further an illegal scheme and (ii) reflect an ongoing or future unlawful or illegal scheme or activity. Importantly, the purported crime or fraud need not be proved either by a preponderance or beyond a reasonable doubt. Rather, the proof 'must be such as to subject the opposing party to the risk of non-persuasion [if] the evidence as to the disputed fact is left unrebutted.' See Union Camp Corp., 385 F.2d at 144-45. Finally, when making its prima facie showing, the government is not limited to admissible evidence; it may rely on any relevant evidence, including hearsay, that has been lawfully obtained that is not otherwise privileged." (footnote omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal VA

Chapter: 18.1002
Case Name: United States v. Joyce, Crim A. No. 17-10378-NMG, 2018 U.S. Dist. LEXIS 75513 (D. Mass. May 4, 2018)
(analyzing the crime-fraud exception; ultimately ordering an in camera review; "The third step, should the Court perform a Zolin review, is to determine which, if any, communications fall within the crime-fraud exception. If the Court finds such communications, it is to hold an ex parte hearing to allow the party holding the privilege to be heard on the subject before the Court."; "The Court reiterates that a Zolin review is initiated by the low evidentiary standard of a 'good faith belief by a reasonable person.'. . . The Court makes no assumption as to the import of the in camera examination or its bearing upon the ultimate issues in this case and the Court is cognizant that the government has not alleged (much less proffered facts of) improper conduct on the part of defense counsel.")

Case Date Jurisdiction State Cite Checked
2018-05-04 Federal MA

Chapter: 18.1002
Case Name: Douberley v. Perlmutter, No. 4D16-2597, 2017 Fla. App. LEXIS 7542 (Fla. App. 4d May 24, 2017)
(analyzing crime-fraud exception questions that arose in connection with a defamation case filed by a businessman Peerenboom against Marvel CEO Perlmutter; noting that Peerenboom's lawyer Douberley secretly obtained Permutter's DNA during a deposition; remanding, because the magistrate judge had not properly conducted a hearing on the crime-fraud exception; "[T]he attorney scheduled their depositions in that action. During the deposition, the attorney arranged to show 'exhibits' to the deponents (now defendants). The paper used to create the exhibits was treated with chemicals to facilitate DNA collection and the deponents were to touch those items. The deponents' discarded water bottles were also to be collected following the deposition. Thereafter, DNA tests would be run to compare their DNA and fingerprints to those retrieved from the hate mail sent, which formed the basis of the instant defamation action."; "Florida courts have held that due process requires an evidentiary hearing to determine applicability of the crime-fraud exception."; "We therefore quash the order and remand the case to the trial court to conduct a hearing with notice to the attorney and an opportunity to be heard.")

Case Date Jurisdiction State Cite Checked
2017-05-24 Federal FL

Chapter: 18.1002
Case Name: In re Grand Jury Subpoena v. United States, No. 15-4080, 2016 U.S. App. LEXIS 5381 (4th Cir. App. March 23, 2016)
(analyzing the crime-fraud exception; "'This Circuit is not alone in holding that communications aimed at concealing a criminal or fraudulent scheme obliterate the privilege.'"; "With this framework in mind, we have reviewed the particulars of this case and determined that the district court did not clearly err in determining that the government successfully made a prima facie showing that the Traders engaged in a criminal or fraudulent scheme of misusing information about impending trades for personal gain. The district court's determination that the Traders intended to avoid detection and continue their scheme in communicating with Lawyer, not least by having Lawyer misrepresent their activities to the regulator, is likewise supported by the record."; "The Traders repeatedly argue that nothing 'in the record' supports the district court's determination here. . . . The Traders claim, for example, that 'the Government lacks evidence' to support the crime-fraud exception and thus attempts to 'fall[] back on the communications themselves' to make the necessary showing. But the Traders, who were, by definition, excluded from the grand jury proceedings and thus not privy to what evidence or theories the complete record contains, see Fed. R. Crim. P. 6, are tilting at windmills.")

Case Date Jurisdiction State Cite Checked
2016-03-23 Federal

Chapter: 18.1002
Case Name: In re Grand Jury Subpoenas v. United States, No. 15-4080, 2016 U.S. App. LEXIS 5381 (4th Cir. App. March, 23, 2016)
(analyzing the crime-fraud exception; "[G]rand jury proceedings are closed and secret. Fed. R. Crim. P. 6. And we have long held that not only facts supporting the crime-fraud exception, but even the nature of the alleged crime or fraud itself, may be presented ex parte and held in confidence. . . . The party asserting privilege may thus be forced to make a best guess as to the crime and evidence it must counter.")

Case Date Jurisdiction State Cite Checked
2016-03-23 Federal

Chapter: 18.1002
Case Name: United States v. Under Seal (In re Grand Jury Investigation), 352 F. App'x 805, 809-10 (4th Cir. 2009)
("In its ex parte submission, the Government has provided the court with prima facie evidence that the Corporation, its principals and the Isle of Man Entity had an agreement to defraud the United States Government in contravention of § 371. . . . The crime-fraud exception is limited to those communications and documents in furtherance of future or ongoing criminal or fraudulent conduct. In re Grand Jury Subpoena, 419 F.3d at 343. Therefore, a party seeking access to materials via the crime-fraud exception must demonstrate a close relationship between the desired materials and an alleged criminal or fraudulent conduct. In re Grand Jury Proceedings # 5, 401 F.3d at 251. However, in making the close relationship determination, courts must take into account that the party invoking the crime-fraud exception, here the Government, does not know exactly what the material will show. See In re Grand Jury Investigation, 842 F.2d 1223, 1227 (11th Cir. 1987). Courts can base a finding of the requisite close relationship on an examination of an in camera submission of evidence by the party invoking the exception so long as the court has some evidence of the contents of the withheld material. See In re Grand Jury Proceedings, 33 F.3d at 351; cf. In re Grand Jury Proceedings # 5, 401 F.3d at 255. In making this finding we review both the Government's ex parte submission of evidence and Counsel's privilege log, which references documents from as early as 1986. The Government's evidence indicates that the Corporation's scheme to defraud the United States dates back as far as 1984 and that the Corporation sought Counsel's legal advice for the sole purpose of facilitating its scheme to defraud the United States. Therefore, all of the withheld documents bear the requisite close relationship to the alleged violation of § 371 because they were in furtherance of the alleged scheme. We conclude that the Government has made a prima facie showing that there is a close relationship between the withheld documents and the alleged violation of § 371.")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal

Chapter: 18.1102
Case Name: Adidas America, Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2018 U.S. Dist. LEXIS 164159 (D. Ore. Sept. 25, 2018)
(finding the crime-fraud exception applicable; inexplicably ordering production of a category of documents rather than analyzing the documents one at a time; "The burden of proof by a party in a civil case seeking disclosure under the crime-fraud exception of documents protected by attorney-client privilege or the work-product doctrine is preponderance of the evidence.")

Case Date Jurisdiction State Cite Checked
2018-09-25 Federal OR

Chapter: 18.1102
Case Name: FTC v. Adept Management, Civ. No. 1:16-cv-00720-CL, 2018 U.S. Dist. LEXIS 111673 (D. Ore. July 3, 2018)
("The moving defendants are attempting to invoke the crime-fraud exception to the attorney client privilege. In the Ninth Circuit, '[a] party seeking to vitiate the attorney-client privilege under the crime-fraud exception must satisfy a two-part test.'. . . 'First, the party must show that 'the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme.' 'Second, it must demonstrate that the attorney-client communications for which production is sought are 'sufficiently related to' and were made ' in furtherance of [the] intended, or present, continuing illegality.' Id. (alterations in original) . . . . The burden of proof is preponderance of the evidence."; "The Court is not, in any event, persuaded that the Simpson Defendants have established a prima facie showing that the crime-fraud exception should apply in this case.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal OR

Chapter: 18.1102
Case Name: Kenyon & Kenyon LLP v. Sightsound Tech., LLC, 650795/2014, 2018 N.Y. Misc. LEXIS 2511 (N.Y. Sup. Ct. June 21, 2018)
("[T]he crime-fraud exception forces disclosure of communications involving fraudulent schemes, alleged breaches of fiduciary duty, or accusations of other wrongful conduct. . . . A party seeking to compel disclosure based on the crime-fraud exception must establish 'a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime' (id). The Firm has established neither."; "The facts alleged fail to establish probable cause that GE engaged in conversations to either commit or further a fraud on the Firm. . . . GE merely exercised its contractual discretion, as approved by the court.")

Case Date Jurisdiction State Cite Checked
2018-06-21 State NY
Comment:

key case


Chapter: 18.1102
Case Name: Hale v. Emporia State University, Case No. 16-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 56524 (D. Kansas April 3, 2018)
(analyzing the crime-fraud exception in connection with a University's racial discrimination internal investigation; affirming the Magistrate Judge's decision refusing to apply the crime-fraud exception to the attorney-client privilege; noting among other things that the Magistrate Judge properly applied Kansas law in analyzing the exception; "And she [Judge] applied federal common law to define the scope of the privilege and the crime-fraud exception. . . . Judge James then determined that plaintiff's allegations failed to make a prima facie showing of fraud to invoke the crime-fraud exception. Judge James cited Kansas law when she identified the elements of fraud. . . . This approach makes sense because, to determine whether the facts establish a prima facie showing that defendant had committed a crime or fraud sufficient to support the crime-fraud exception under federal common law, the court may apply the forum's law governing the alleged crime or fraud."; "Judge James had erred by using Kansas law as a point of reference, federal common law defines fraud using the same elements as Kansas law.")

Case Date Jurisdiction State Cite Checked
2018-04-03 Federal KS

Chapter: 18.1102
Case Name: Buttonwood Tree Value Partners, L.P. v. R.L. Polk & Co., Civ. A. No. 9250-VCG, 2018 Del. Ch. LEXIS 6 (Del. Ch. Ct. Jan. 10, 2018)
(analyzing the Garner doctrine and the client fraud exception; ultimately concluding that neither one applied in a lawsuit by the members of a family who sold their stock to self-tender; "To invoke the crime-fraud exception, 'a mere allegation of fraud is not sufficient.' Instead, the proponent of the exception must 'make[] a prima facie showing that the confidential communications were made in furtherance of a crime or fraud.' The client must intend the communications 'to be used as a basis for criminal or fraudulent activity, whether or not that criminal or fraudulent intent ever comes to fruition.' Put differently, 'the advice must advance, or the client must intend the advice to advance, the client's criminal or fraudulent purpose.' And it is not enough that the privileged communications 'would provide an adversary with evidence of a crime or fraud.' Nor can the exception be invoked simply because the advice relates to the crime or fraud.' Finally, the exception does not apply 'merely upon a showing that the client communicated with counsel while the client was engaged in criminal [or fraudulent] activity.'"; "The Plaintiffs' invocation of the crime-fraud exception suffers from a fatal flaw: the absence of any evidence that the Defendants sought the advice of their attorneys for the purpose of accomplishing their allegedly fraudulent scheme. The Plaintiffs aver that the 2011 self-tender was fraudulently induced via a failure to disclose several material facts, including that the Polk family was considering selling the company. And, as the privilege logs reveal, the Defendants consulted with attorneys about various restructuring options, including the self-tender. But there is no indication that the Defendants intended to use these consultations to further the purportedly fraudulent scheme, or that the advice received during these consultations helped them perpetrate the scheme. The Plaintiffs have shown only that, during the alleged fraud, the Defendants spoke with counsel about matters related to the transaction in connection with which they allegedly provided inadequate disclosures; the 2011 self-tender. That is not enough, to my mind, to invoke the crime-fraud exception."; "[T]he crime-fraud exception does not vitiate the privilege upon a showing that the privileged communications would provide the movant with evidence useful to demonstrating a crime or fraud. 'If it did, the privilege would be virtually worthless because a client could not freely give, or an attorney request, evidence that might support a finding of culpability.' A privileged communication may reveal that a fraudster knew the information he gave his victim was false. But the crime-fraud exception would not apply to that communication absent a showing that the fraudster consulted his attorney in order to further his fraudulent scheme. The Plaintiffs point to nothing indicating such is the case here. Because the Plaintiffs have failed to make a prima facie showing that the privileged communications at issue were made in furtherance of a fraudulent scheme, the crime-fraud exception does not apply.")

Case Date Jurisdiction State Cite Checked
2018-01-10 State DE

Chapter: 18.1102
Case Name: Hully Enters. v. Baker Botts LLP, Misc. Case No. 17-1466 (BAH), 2017 U.S. Dist. LEXIS 203066 (D.D.C. Dec. 9, 2017)
("The petitioners' submissions here fall short of making a prima facie showing that the crime-fraud exception would apply to the respondents' assertions of privilege.")

Case Date Jurisdiction State Cite Checked
2017-12-09 Federal DC

Chapter: 18.1102
Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "Through its ex parte production of evidence, the SCO has clearly met its burden of making a prima facie showing that the crime-fraud exception applies by showing that the Targets were 'engaged in or planning a criminal or fraudulent scheme when [they] sought the advice of counsel to further the scheme.'")

Case Date Jurisdiction State Cite Checked
2017-10-02 Federal DC

Chapter: 18.1102
Case Name: In re Grand Jury Subpoena ABC Co., No. 16-3479, 2017 U.S. App. LEXIS 10690 (3rd Dis. App. June 16, 2017)
("'[A] party seeking to apply the crime-fraud exception must demonstrate that there is a reasonable basis to suspect (1) that the privilege holder was committing or intending to commit a crime or fraud, and (2) that the attorney-client communication or attorney work product was used in furtherance of that alleged crime or fraud.'. . . 'there must be 'prima facie evidence that [the application of the exception] has some foundation in fact.'. . . 'A 'prima facie showing' requires presentation of 'evidence which, if believed by the fact-finder, would be sufficient to support a finding that the elements of the crime-fraud exception were met.'")

Case Date Jurisdiction State Cite Checked
2017-06-16 Federal

Chapter: 18.1102
Case Name: In re Grand Jury Subpoena ABC Co., No. 16-3479, 2017 U.S. App. LEXIS 10690 (3rd Dis. App. June 16, 2017)
("To satisfy its burden of providing a 'reasonable basis' to apply the crime-fraud exception, the Government offered three pieces of 'evidence' in its brief. First, the Government alleges the purported author of the letter submitted with the MOR Response testified that he neither wrote the letter nor authorized anyone to prepare such a letter. Second, the Government states the MOR Response contained other, unspecified misleading and false statements. Third, the Government asserted that ABC Company hired Law Firm to assist it in preparing the MOR Response. The District Court concluded that those assertions were sufficient to support application of the crime-fraud exception. We disagree."; "Even if unsupported arguments by counsel qualified as 'evidence,' the Government's assertions have other weaknesses. A vague allegation that the MOR Response contains unspecified false statements fails to meet the 'reasonably demanding' evidentiary standard we must apply. . . . Given the limited record here, we also question whether Law Firm's advice was used in furtherance of submitting the fraudulent letter."; "On remand, the Government should nevertheless have leave to provide a sufficient factual basis to support application of the crime-fraud exception. That evidence may take various forms, including ex parte affidavits . . . the Government may request the District Court to perform an in camera review of Law Firm's privileged documents upon 'a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'")

Case Date Jurisdiction State Cite Checked
2017-06-16 Federal

Chapter: 18.1102
Case Name: Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, Adv. Pro. No. 08-01789 (SMB), Adv. Pro. No. 10-04216 (SMB), 2017 Bankr. LEXIS 519 (S.D.N.Y. Feb. 17, 2017)
(noting that courts did not agree on the proof required to strip away privilege under the crime-fraud exception; "The Supreme Court has expressly avoided weighing in on 'the quantum of proof necessary ultimately to establish the applicability of the crime-fraud exception.' See United States v. Zolin, 491 U.S. 554, 563, 109 S. Ct. 2619, 105 L. Ed. 2d 469 & n.7 (1989). In this Circuit, however, it is clear that a party seeking to invoke the crime-fraud exception must 'at least demonstrate that there is probable cause to believe that a crime or fraud has been attempted or committed and that the communications were in furtherance thereof.'. . . the Second Circuit has never expressly indicated how this probable cause standard should be applied in a civil proceeding. . . . Nonetheless, the use of the 'at least' language in Roe I suggests that courts have the discretion to require a standard of proof higher than probable cause."; "Courts in other jurisdictions have described a requesting party's burden in different terms. For example, some courts have suggested (at least in the context of grand jury proceedings) that the requesting party need only make a prima facie showing. . . . By comparison, the Ninth Circuit has phrased the appropriate standard of proof as a 'preponderance of the evidence test.'. . . Indeed, requiring that the showing be made by a preponderance of the evidence is consistent with the procedure under Rule 104 of the Federal Rules of Evidence, which provides that preliminary questions regarding the existence of a privilege are to be decided by the court using that standard."; "Faced with this smorgasbord of competing views, Magistrate Judge Dolinger concluded in Omnicom II that in a civil case such as this one, in which the person asserting the privilege opposes the application to compel production, the test should be 'whether there is substantial reason to believe that [she] engaged in or attempted to commit a fraud and used communications with [her] attorney to do so.'. . . This is the test I choose to apply in this proceeding. I note that 'the fraudulent nature of the objective need not be established definitively; there need only be a reasonable basis for believing that the objective was fraudulent.")

Case Date Jurisdiction State Cite Checked
2017-02-17 Federal NY
Comment:

key case


Chapter: 18.1102
Case Name: Harris Mgmt, Inc. v. Coulombe, Dkt. BCD-15-363, 2016 ME 166, 2016 Me. LEXIS 185 (Me. Nov. 8, 2016)
("Neither we nor the courts of Massachusetts -- the other jurisdiction that applies the standard of proof by a preponderance of the evidence for the crime-fraud exception to apply . . . have directly addressed this issue. Other jurisdictions, however, that require only a prima facie showing that the crime-fraud exception applies, have addressed the question."; "Here, the court's findings demonstrate that it applied the proper legal test. It found, for purposes of the discovery motion, that Harris had demonstrated by a preponderance of the evidence that (a) Coulombe was engaged in or planning fraudulent activity when the attorney-client communications took place and (b) Coulombe's communications with counsel were intended by him to facilitate or conceal the fraudulent activity.")

Case Date Jurisdiction State Cite Checked
2016-11-08 State ME

Chapter: 18.1102
Case Name: Fragin v. First Funds Holdings LLC, 652673/2014, 2016 N.Y. Misc. LEXIS 2970 (N.Y. Sup. Ct. Aug. 11, 2016)
(finding the crime-fraud exception applicable to communications to and from the law firm of Moses & Singer, despite that firm's lack of intent to commit wrongdoing; "A party seeking to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe: (1) that a fraud or crime has been committed and (2) that the communications in question were in furtherance of the fraud or crime. . . . Fragin has made this requisite two-part showing.")

Case Date Jurisdiction State Cite Checked
2016-08-11 Federal NY

Chapter: 18.1102
Case Name: In re Animation Workers Antitrust Litigation, Case No. 5:14-cv-04062-LHK, 2016 U.S. Dist. LEXIS 44154 (N.D. Cal. March 30, 2016)
(finding the crime-fraud exception inapplicable, but noting that a civil antitrust violation could trigger the exception under different circumstances; "Last week, the court ordered Defendant Pixar to submit for in camera review various documents involving former Pixar Executive Vice President and General Counsel Lois Scali. Pixar has asserted that these documents are subject to the attorney-client privilege. Notwithstanding that assertion, and after considering evidence from Pixar supporting that assertion, the court held that Plaintiffs had shown there was 'a reasonable, good-faith belief that review of the privileged documents may reveal evidence to establish the claim that the crime fraud exception applies.' The exception applies where (1) the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme and (2) the attorney-client communications for which production is sought are 'sufficiently related to' and were made in furtherance of the intended, or present, continuing illegality."; "While Plaintiffs initially sought in camera review of the documents, what they ultimately seek is the documents' production. Production, as compared to mere in camera review, carries a higher burden of proof than merely a 'reasonable, good-faith belief.' In civil cases such as this one, that burden is preponderance of the evidence, or whether 'it is more likely than not that the party resisting the disclosures sought or used legal advice to commit or to try to commit a crime or fraud.' Having read each and every document submitted, the court holds that Plaintiffs' burden, at least as to the first part of the applicable test, is not yet met.")

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal CA

Chapter: 18.1102
Case Name: In re Grand Jury Subpoena v. United States, No. 15-4080, 2016 U.S. App. LEXIS 5381 (4th Cir. App. March 23, 2016)
(analyzing the crime-fraud exception; "'This Circuit is not alone in holding that communications aimed at concealing a criminal or fraudulent scheme obliterate the privilege.'"; "With this framework in mind, we have reviewed the particulars of this case and determined that the district court did not clearly err in determining that the government successfully made a prima facie showing that the Traders engaged in a criminal or fraudulent scheme of misusing information about impending trades for personal gain. The district court's determination that the Traders intended to avoid detection and continue their scheme in communicating with Lawyer, not least by having Lawyer misrepresent their activities to the regulator, is likewise supported by the record."; "The Traders repeatedly argue that nothing 'in the record' supports the district court's determination here. . . . The Traders claim, for example, that 'the Government lacks evidence' to support the crime-fraud exception and thus attempts to 'fall[] back on the communications themselves' to make the necessary showing. But the Traders, who were, by definition, excluded from the grand jury proceedings and thus not privy to what evidence or theories the complete record contains, see Fed. R. Crim. P. 6, are tilting at windmills.")

Case Date Jurisdiction State Cite Checked
2016-03-23 Federal

Chapter: 18.1102
Case Name: United States v. Gorski, Nos. 14-1963, 14-1964, 14-2074, 2015 U.S. App. LEXIS 21302 (1st Cir. App. Dec. 9, 2015)
(analyzing interlocutory appeals and the crime-fraud exception; concluding the individual defendant cannot pursue an interlocutory appeal, but that a non-party could rely on the Perlman doctrine; finding that the crime-fraud exception applied to communications to and from Mintz Levin, and remanding for the trial court's review of certain documents to determine if the exception applied to them; "The first issue is whether the district court erred in conducting an in camera review of the privileged documents at all. The Supreme Court has held that district courts may conduct an in camera review of privileged materials upon a 'good faith belief by a reasonable person'. . . that 'in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies,'. . . The standard for in camera review is a 'very relaxed test' that requires a lesser evidentiary showing than what is ultimately needed to pierce the privilege. . . . That standard was met by the prosecution's allegation that Mintz Levin's restructuring of Legion was part of a five-year ongoing scheme whose essence was that the outward structure of the company did not match its actual ownership and control. Gorski's argument that the use of an effective date on corporate documents was not illegal and so could not have formed the basis for the in camera review is too narrowly focused, because it is the entire five-year scheme alleged in the indictment that justifies in camera review. A jury could view the chronology as an attempt to convince the SBA that transactions took place before they did, and to dispel any reason for further SBA inquiry.")

Case Date Jurisdiction State Cite Checked
2015-12-09 Federal MA
Comment:

key case


Chapter: 18.1102
Case Name: United States v. Gorski, Nos. 14-1963, 14-1964, 14-2074, 2015 U.S. App. LEXIS 21302 (1st Cir. App. Dec. 9, 2015)
(analyzing interlocutory appeals and the crime-fraud exception; concluding the individual defendant cannot pursue an interlocutory appeal, but that a non-party could rely on the Perlman doctrine; finding that the crime-fraud exception applied to communications to and from Mintz Levin, and remanding for the trial court's review of certain documents to determine if the exception applied to them; "By prima facie showing, we mean 'a reasonable basis to believe that the lawyer's services were used by the client to foster a crime or fraud.'. . . This standard may be met by 'something less than a mathematical (more likely than not) probability that the client intended to use the attorney in furtherance of a crime or fraud.'. . . However, it requires more than 'speculation [or] evidence that shows only a distant likelihood of corruption.'")

Case Date Jurisdiction State Cite Checked
2015-12-09 Federal MA

Chapter: 18.1102
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015)
(finding the crime-fraud exception inapplicable because the ignition switch plaintiffs could not establish that the King & Spalding communications furthered any alleged General Motors wrongdoing; "New GM's and K&S's conduct may well have contributed to the delay in public disclosure of the ignition switch defect. And it may well be that Plaintiffs can ultimately prove (as the criminal charges against New GM certainly suggest) that there was an intentional scheme on the part of some at New GM to conceal the ignition switch defect from the public and NHTSA (and that the confidential settlements served to facilitate that scheme). But the Second Circuit has 'strong[ly] emphasi[zed]' that evidence of a crime or fraud alone is not enough to vitiate the attorney-client privilege and work product doctrine . . . And that the moving party must also show 'that the particular communication with counsel or attorney work product was intended in some way to facilitate or to conceal the criminal activity,'. . . Here, even though Plaintiffs are already privy to most of the communications between New GM and K&S, they have failed to make that showing with respect to their first theory, of concealment.")

Case Date Jurisdiction State Cite Checked
2015-11-25 Federal NY
Comment:

key case


Chapter: 18.1102
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015)
(finding the crime-fraud exception inapplicable because the ignition switch plaintiffs could not establish that the King & Spalding communications furthered any alleged General Motors wrongdoing; "Under federal law, which applies here . . . A party seeking the production of otherwise privileged documents pursuant to the crime-fraud exception must make two showings. First, the party 'must at least demonstrate that there is probable cause to believe that a crime or fraud has been attempted or committed'; and second, the party must show 'that the communications were in furtherance thereof.'. . . Where the moving party seeks in camera review of documents to which the crime-fraud exception would potentially apply, the court 'should require a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies. Once that showing is made, the decision whether to engage in in camera review rests in the sound discretion of the district court.'. . . The threshold showing is intended to protect the policy of 'open and legitimate disclosure between attorneys and clients,' to prevent 'groundless fishing expeditions,' and to recognize 'the burdens in camera review places upon the district courts, which may well be required to evaluate large evidentiary records without open adversarial guidance by the parties.'")

Case Date Jurisdiction State Cite Checked
2015-11-25 Federal NY
Comment:

key case


Chapter: 18.1102
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015)
(finding the crime-fraud exception inapplicable because the ignition switch plaintiffs could not establish that the King & Spalding communications furthered any alleged General Motors wrongdoing; "With respect to the second prong of the test, the Second Circuit has stressed that 'the exception applies only when the court determines that the client communication or attorney work product in question was itself in furtherance of the crime or fraud' and 'where there is probable cause to believe that the particular communication with counsel or attorney work product was intended in some way to facilitate or to conceal the criminal activity.'")

Case Date Jurisdiction State Cite Checked
2015-11-25 Federal NY

Chapter: 18.1102
Case Name: United States v. Levin, 15 Cr. 101 (KBF), 2015 U.S. Dist. LEXIS 137615 (S.D.N.Y. Oct. 5, 2015)
("The party withholding documents on the basis of the attorney-client privilege bears the burden of supporting that privilege with sufficient information to indicate its applicability. See Fed. R. Civ. P. 26(b)(5). To overcome that privilege, the party seeking to vitiate the privilege must show probable cause that a crime or fraud has been committed and that the communications were in furtherance thereof.")

Case Date Jurisdiction State Cite Checked
2015-10-05 Federal NY

Chapter: 18.1102
Case Name: United States v. Levin, 15 Cr. 101 (KBF), 2015 U.S. Dist. LEXIS 137615 (S.D.N.Y. Oct. 5, 2015)
("Defendants counter that certain portions of the Government's recordings provide an innocent explanation for their routine practice of changing their business-opportunity entity names. But 'the fact that an innocent explanation may be consistent with the facts alleged . . . Does not negate probable cause.'. . . That argument goes to the weight of the evidence and is insufficient to defeat the existence of probable cause. . . . To invoke the crime-fraud exception, the Government need only establish a 'reasonable basis' to suspect that the communications were in furtherance of the perpetration or attempted perpetration of a crime or fraud. . . . It has done so.")

Case Date Jurisdiction State Cite Checked
2015-10-05 Federal NY

Chapter: 18.1102
Case Name: In re Subpoena to Testify Before Grand Jury, Case No. 15-mc-80207-JSC, 2015 U.S. Dist. LEXIS 122305 (N.D. Cal. Sept. 14, 2015)
("The government must raise more than a mere suspicion of illegal activity . . . 'the exception only applies when there is reasonable cause to believe that the attorney's services were utilized in furtherance of the ongoing unlawful scheme.'. . . In this context, reasonable cause is 'more than suspicion but less than a preponderance of the evidence.'. . . It means 'evidence that, if believed by the jury, would establish the elements of an ongoing violation.'. . . Thus, 'the Government must [only] make a prima facie showing that a crime has been committed, and demonstrate the nexus between the prima facie showing and the communications sought.'. . . The prima facie showing must be made from evidence independent of the purportedly privileged communications."; "'The standard is different in civil cases than in grand jury cases. . . . In 'a civil case the burden of proof that must be carried by a party seeking outright disclosure of attorney-client communications under the crime-fraud exception [is] preponderance of the evidence.'"; "Importantly, '[t]he attorney need not himself be aware of the illegality involved; it is enough that the communication furthered, or was intended by the client to further, that illegality.'").

Case Date Jurisdiction State Cite Checked
2015-09-14 Federal CA

Chapter: 18.1102
Case Name: United States v. Christensen, No. 08-50531, No. 08-50570, No. 09-50115, No. 09-50125, No. 09-50128, No. 09-50159, No. 10-50434, No. 10-50462, No. 10-50464, No. 10-50472, 2015 U.S. App. LEXIS 14961 (9th Cir. Aug. 25, 2015)
(analyzing the crime-fraud exception; "'Whether an evidentiary showing is sufficient to allow in camera review under the Zolin test is a mixed question of law and fact subject to de novo review.". . . Once an adequate showing under Zolin's first step has been made, 'the decision whether to engage in in camera review rests in the sound discretion of the district court.' Zolin, 491 U.S. at 572. Under Zolin's second step, 'rulings on the scope of the privilege,' including the crime-fraud exception, 'involve mixed questions of law and fact and are reviewable de novo, unless the scope of the privilege is clear and the decision made by the district court is essentially factual; in that case only clear error justifies reversal.'"; "Zolin requires a district court to follow a two-step ex parte process to determine whether the crime-fraud exception applies to potentially privileged materials, such as the Pellicano-Christensen recordings. 491 U.S. at 572. First, 'the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'. . . Second, if the government makes such a preliminary showing based on evidence other than the potentially privileged materials themselves, the court may conduct an in camera review to determine whether the materials are privileged and, if so, whether the crime-fraud exception applies."; assessing what it called "Zolin's first step"; "The district court did not err in holding that the government met its minimal burden under Zolin's first step."; "Zolin's first step requires 'a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'. . . The government must make only 'a minimal showing that the crime-fraud exception could apply'. . . . Some speculation is required under the Zolin threshold.'. . . The threshold is 'not . . . a stringent one' because 'in camera review of documents is a much smaller intrusion on the attorney-client privilege than full disclosure.'. . . The first step is meant only 'to prevent 'groundless fishing expeditions.'"; also analyzing what the court called "Zolin's second step"; "Under Zolin's second step, the district court conducts an in camera review to determine whether the materials are privileged and, if so, whether the government has made a prima facie showing that the crime-fraud exception applies.")

Case Date Jurisdiction State Cite Checked
2015-08-25 Federal
Comment:

key case


Chapter: 18.1102
Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015)
(analyzing the crime-fraud exception; finding the crime-fraud exception applicable; "To overcome the attorney-client privilege, the moving party must make a prima facie case.")

Case Date Jurisdiction State Cite Checked
2015-06-09 Federal CA

Chapter: 18.1102
Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015)
(analyzing the crime-fraud exception; finding the crime-fraud exception applicable; "There is a circuit split with respect to the standard of proof. There are three prevailing approaches, with the First, Second, Third, Sixth, and Ninth Circuits all relying upon the 'reasonable basis' approach.")

Case Date Jurisdiction State Cite Checked
2015-06-09 Federal CA
Comment:

key case


Chapter: 18.1102
Case Name: Plaza Insurance Company v. Lester, Civ. A. No. 14-cv-01162-LTB-CBS, 2015 U.S. Dist. LEXIS 72438, 2015 U.S. Dist. LEXIS 72438 (D.D.C. June 4, 2015)
(finding the crime-fraud exception applicable; "The Tenth Circuit has not articulated the precise requirements for establishing a prima facie showing; however, the party opposing the privilege must present evidence that the allegation of attorney participation in the fraudulent conduct has some foundation in fact. . . . Other circuits require a similar showing. The movant may satisfy their burden by presenting documentary evidence or testimony that is already in the record. . . . When a movant has presented competent evidence, the party seeking to rely on the privilege or work product protection must come forward with rebuttal evidence. . . . A determination of whether the movant has satisfied their burden lies in the discretion of the court.")

Case Date Jurisdiction State Cite Checked
2015-06-04 Federal DC

Chapter: 18.1102
Case Name: Plaza Insurance Company v. Lester, Civ. A. No. 14-cv-01162-LTB-CBS, 2015 U.S. Dist. LEXIS 72438, 2015 U.S. Dist. LEXIS 72438 (D.D.C. June 4, 2015)
(finding the crime-fraud exception applicable; "A pro forma or frivolous invocation of the fraud exception will not justify a 'groundless fishing expedition' in which the court acts as an 'unwitting (and perhaps unwilling) agent[].'")

Case Date Jurisdiction State Cite Checked
2015-06-04 Federal DC

Chapter: 18.1102
Case Name: Malbco Holdings, LLC v. Patel, 6:14-cv-00947-PK, 2015 U.S. Dist. LEXIS 62501 (D. Ore. May 13, 2015)
("The party invoking the crime-fraud exception must make a prima facie case of fraud. . . . If the court determines, based on that evidence, to conduct an in camera review, then the court may weigh that evidence revealed from its review together with other evidence offered by the party invoking the exception to determine whether the crime-fraud exception to the attorney-client privilege applies.")

Case Date Jurisdiction State Cite Checked
2015-05-13 Federal OR

Chapter: 18.1102
Case Name: Irving Oil Ltd. v. ACE INA Ins., BCD-CV-09-35, 2015 Me. Super. LEXIS 72 (Me. April 18, 2015)
("This court declines to adopt a per se rule that mere allegations of unfair claims settlement practices pierces the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2015-04-18 State ME

Chapter: 18.1102
Case Name: United States v. Weed, Crim. No. 14-cr-10348-DPW, 2015 U.S. Dist. LEXIS 52538 (D. Mass. April 14, 2015)
(finding the crime-fraud exception applicable; "To meet the first prong of this test, the party challenging the privilege must present 'a prima facie showing of evidence that, if believed by the trier of fact, would establish the elements of some violation that was ongoing or about to be committed. Prong two may be satisfied with a showing of a close relationship between the attorney-client communications and the possible criminal or fraudulent activity.'")

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal MA

Chapter: 18.1102
Case Name: In re Infinity Business Group, Inc., Bankruptcy Case No. 10-06335-jw, Adv. Proc. No. 12-80208-jw, Ch. 7, 2015 Bankr. LEXIS 1560 (D.S.C. April 3, 2015)
("The party asserting the applicability of the crime-fraud exception carries the burden of making a prima facie showing that the privileged communications fall within the exception. . . . Other than generic references to the Complaint, the MK Defendants have not presented any evidence to demonstrate that the privileged communications fall within the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal SC

Chapter: 18.1102
Case Name: United States v. Depue, No. 12-10345, 2015 U.S. App. LEXIS 3518 (9th Cir. App. March 5, 2015)
("In his first trial, Depue testified in detail about his meeting with Adams, including the specific advice Adams provided and his response to the advice. Depue thus waived the attorney-client privilege as to that communication. Even if the privilege were not waived, Depue's argument would fail because the government made a prima facie showing that Depue used Adams' services (which were the subject of Adams' testimony) to help further an illegal scheme. Thus, Adams' testimony and letter were admissible under the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2015-03-05 Federal

Chapter: 18.1102
Case Name: In re PWK Timberland, LLC, Case No. 13-20242, 2015 Bankr. LEXIS 248 (W.D. La. Jan. 27, 2015)
("This showing requires more than mere conclusory allegations that a crime or fraud has occurred. . . . The record does not support a prima facie case that a crime or fraud has occurred. In their pleadings, Movants concede that they cannot allege fraud without access to the privileged documents, but instead contend that PWK and the non-withdrawing members have violated their duties by seeking to frustrate the Movants' rights under the Put Option. The court finds that these allegations, standing alone, do not support a prima facie case of a crime or fraud. Moreover, courts have generally held that an in camera review of the documents should not be used to 'bootstrap' a prima facie showing of a crime or fraud.")

Case Date Jurisdiction State Cite Checked
2015-01-27 Federal LA

Chapter: 18.1102
Case Name: United States v. Harris, Crim. No. 2:14cr76, 2014 U.S. LEXIS 140333 (E.D. Va. Oct. 1, 2014)
(analyzing the crime-fraud exception; pointing to In re Grand Jury Proceedings #5, 401 F.3d at 251; "Although various circuits have formulated different tests governing the application of the crime-fraud exception, the Fourth Circuit requires that '[t]he party asserting the crime-fraud exception, the Government in our case, must make a prima facie showing that the privileged communications fall within the exception.'")

Case Date Jurisdiction State Cite Checked
2014-10-01 Federal VA
Comment:

key case


Chapter: 18.1102
Case Name: Ishee v. Federal National Mortgage Association, Civ. A. No. 2:13-cv-234-KS-MTP, 2014 U.S. Dist. LEXIS 71141 (S.D. Miss. May 23, 2014)
("The party seeking to invoke the crime-fraud exception bears the burden of establishing a prima facie case that the attorney-client relationship was intended to further criminal or fraudulent activity. . . . To make the necessary prima facie showing, Plaintiff 'must produce evidence such as will suffice until contradicted and overcome by other evidence' to establish the elements of a crime or fraud. . . . 'Allegations in pleadings are not evidence and are not sufficient to make a prima facie showing that the crime-fraud exception applies.'. . . Also, Plaintiff must show 'some valid relationship between the work product under subpoena and the prima facie violation' or that the 'material reasonably relate[s] to the fraudulent activity.'")

Case Date Jurisdiction State Cite Checked
2014-05-23 Federal MS

Chapter: 18.1102
Case Name: Swortwood v. Tenedora De Empresas, S.A. DE C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *23 (S.D. Cal. Mar. 6, 2014)
(analyzing a claim by plaintiffs, who sold their stock in the Neology to Smarttrac, after which the defendant eliminated plaintiffs' liquidation preferences; "For evidence to fall within [the] crime-fraud exception to attorney-client privilege, a mere allegation of fraud is not sufficient; there must be a prima facie showing that a reasonable basis exists to believe a fraud has been perpetrated or attempted.")

Case Date Jurisdiction State Cite Checked
2014-05-06 Federal CA B 8/14

Chapter: 18.1102
Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. No. 2:06-cv-1797, 2014 U.S. Dist. LEXIS 2344, at *15-16 (E.D. Pa. Jan. 9, 2014)
(analyzing the crime-fraud exception; finding that inequitable conduct in a patent case can amount to the type of conduct that can trigger the crime-fraud exception, but the communications in this case did not further inequitable conduct; "The precise level of proof required to succeed on a motion to compel based on the crime-fraud exception is subject to some debate. The traditional definition requires the party invoking the exception to provide 'prima facie evidence that it has some foundation in fact.' . . . But 'prima facie' is a slippery standard, and the Supreme Court has since recognized that it has resulted in 'some confusion' among the lower courts." (citation omitted))

Case Date Jurisdiction State Cite Checked
2014-01-09 Federal PA B 6/14

Chapter: 18.1102
Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 687, 689, 690 (3d Cir. 2014)
(concluding that the crime-fraud exception did not apply if the client formed a criminal intent after obtaining advice; "Because it is often difficult or impossible to prove that the exception applies without delving into the communications themselves, the Supreme Court has held that courts may use in camera review to establish the applicability of the exception."; "For these reasons, we hold that district courts should use the Zolin [United States v. Zolin, 491 U.S. 554 (1989)] standard to determine whether to examine a witness in camera. Before a district court can undertake an in camera examination of an attorney-witness to determine the applicability of the crime-fraud exception, the party seeking to overcome the privilege must make a 'showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.'" (citation omitted); "Intervenors contest the District Court's decision to exclude them from the in camera examination of Attorney and its refusal to release a transcript or summary of the examination. In considering Intervenors' request to attend the in camera examination, the District Court concluded that the balance between the need for grand jury secrecy and protection of the attorney-client privilege could only be met if neither Intervenors nor the Government were present during the examination of Attorney. The District Court denied Intervenors' request for a transcript, redacted transcript, or summary of the examination testimony for similar reasons.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 18.1102
Case Name: Truck Ins. Exch. v. Superior Court, No. A137420, 2013 Cal App. Unpub. LEXIS 5487, at *17 18 (Cal. Ct. App. July 31, 2013)
(granting an interlocutory appeal in state court; "[I]n the absence of any showing that Golden State [defendant] was deceived by the filing of the recovery actions, it failed to meet its burden of demonstrating a prima facie showing of fraud sufficient to invoke the crime-fraud exception to the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-07-31 State CA B 4/14

Chapter: 18.1102
Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *13-14, *14 (E.D. Wis. July 10, 2013)
("[F]or the crime-fraud exception to apply there must be prima facie evidence regarding the charge, and prima facie evidence generally means probable cause to believe that a crime has been attempted or committed and that the communications at issue were in furtherance of the crime. As an indictment must be based on probable cause . . ., the government has established that the crime-fraud exception may apply to some communications. . . . Defendants Balsiger and Currey concede that the Superseding Indictment constitutes a prima facie showing for purposes of this privilege dispute."; "However, '[a]lthough an indictment may provide probable cause to believe that the crime charged was committed, an indictment, standing alone, does not provide probable cause to believe that [an individual's] communications with [his] lawyers were in furtherance of the conduct charged in the Indictment.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 18.1102
Case Name: In re Oil Spill, Case 2:10-md-02179-CJB-SS, slip op. at 26, 41 (E.D. La. Apr. 30, 2013)
("Doc. Nos. 014.1, 015.4 and 018.1 are the draft letter prepared by attorneys reflecting legal advice regarding responses to questions from Congressman Markey on May 14, 2010. These communications and documents are not in furtherance of contemplated or ongoing criminal or fraudulent conduct. They are not subject to the crime-fraud exception."; "After conducting the review, the Court finds that the U.S. and Transocean have not carried their burden of establishing a prima facie case that the attorney-client relationship was intended to further criminal or fraudulent activity. In re Grand Jury, 419 F.3d [329,] 335 [(5th Cir. 2005)] Assuming that the prima facie case was established, the Court finds the attorney-client communications do not reasonably relate to the activity at issue nor is there probable cause to believe that these attorney-client communications were intended in some way to facilitate or to conceal the activity at issue.")

Case Date Jurisdiction State Cite Checked
2013-04-30 Federal LA B 9/13

Chapter: 18.1102
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 36353, at *96-97 (S.D.N.Y. Mar. 15, 2013)
(ordering the law firm of Patton Boggs to produce documents to Chevron based on the crime-fraud exception; "In order successfully to invoke the crime-fraud exception, a party seeking disclosure must demonstrate that there is 'probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud.' Probable cause exists where 'a prudent person ha[s] a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud, and that the communications were in furtherance thereof.' Moreover, 'a finding of probable cause is not negated by "an innocent explanation which may be consistent with the facts alleged."' Thus, in order to obtain disclosure of otherwise privileged or protected evidence by means of the crime-fraud exception, the party seeking disclosure must show a factual basis to support a conclusion that there is probable cause to believe that (1) a crime or fraud was or is being committed, and (2) the communication in question was or is in furtherance of the crime or fraud." (citations omitted))

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal NY B 3/14

Chapter: 18.1102
Case Name: United States v. Pons, No. 11 CR 670, 2013 U.S. Dist. LEXIS 35903, at *16 (N.D. Ill. Mar. 15, 2013)
("Once a prima facie showing has been made by the Government, the proponent of the privilege must 'come forth with an explanation for the evidence offered against [him].'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal IL B 3/14

Chapter: 18.1102
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 36353, at *106 (S.D.N.Y. Mar. 15, 2013)
(ordering the law firm of Patton Boggs to produce documents to Chevron based on the crime-fraud exception; "PB contends otherwise. But its arguments are speculative and unpersuasive when one bears in mind the relevant legal standard that governs the first prong of the crime-fraud analysis -- whether Chevron has provided a factual basis that would 'strike a prudent person as constituting a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud.' Chevron has done so, and neither the LAPs nor PB have presented any compelling evidence or arguments to the contrary." (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal NY B 3/14

Chapter: 18.1102
Case Name: In re Grand Jury Subpoena, G.J. No. 10-127-02, 2013 U.S. Dist. LEXIS 8127 (E.D. Pa. Jan. 18, 2013)
March 13, 2013 (PRIVILEGE POINT)

"Courts Apply the Crime-Fraud Exception"

Every court recognizes that neither the attorney-client privilege nor the work product doctrine should protect communications that further the client's criminal or fraudulent conduct. Although courts differ on some of the elements of the "crime-fraud" exception, they agree on some basic concepts.

In Everflow Technology Corp. v. Millennium Electronics, Inc., the court pointed to a California evidence rule stripping privilege and work product protection from communications if the moving party establishes "a prima facie case of crime or fraud," and "a reasonable relationship between the crime or fraud and the attorney-client communication." No. C07-05795 HRL, 2013 U.S. Dist. LEXIS 4810, at *5 (N.D. Cal. Jan. 11, 2013) (not for citation). The court found that plaintiff had carried this burden. At nearly the same time, the District of Nebraska declined to apply the crime-fraud exception, concluding that plaintiffs "have not offered sufficient evidence to show a factual basis adequate to support a good faith belief by a reasonable person that the crime-fraud exception applies." Davis v. Hugo Enters., LLC, No. 8:11CV221, 2013 U.S. Dist. LEXIS 3357, at *11 (D. Neb. Jan. 9, 2013). A week later, the Eastern District of Pennsylvania found that the government had satisfied its burden, and ordered grand jury targets' lawyer to testify about his conversations with his clients. In re Grand Jury Subpoena, G.J. No. 10-127-02, 2013 U.S. Dist. LEXIS 8127 (E.D. Pa. Jan. 18, 2013). As in Everflow Technology, the Grand Jury court articulated another universally applied rule: "The crime-fraud exception applies whether or not the attorney was actually aware that his or her advice was being used for nefarious purposes." Id. At *10.

Litigants should remember that merely alleging an adversary's crime or fraud does not result in forfeiture of privilege or work product protection. On the other hand, no court requires a litigant to actually prove the adversary's criminal guilt or fraud liability.

Case Date Jurisdiction State Cite Checked
2013-01-18 Federal PA
Comment:

key case


Chapter: 18.1102
Case Name: Everflow Technology Corp. v. Millennium Electronics, Inc., No. C07-05795 HRL, 2013 U.S. Dist. LEXIS 4810, at *5 (N.D. Cal. Jan. 11, 2013)
March 13, 2013 (PRIVILEGE POINT)

"Courts Apply the Crime-Fraud Exception"

Every court recognizes that neither the attorney-client privilege nor the work product doctrine should protect communications that further the client's criminal or fraudulent conduct. Although courts differ on some of the elements of the "crime-fraud" exception, they agree on some basic concepts.

In Everflow Technology Corp. v. Millennium Electronics, Inc., the court pointed to a California evidence rule stripping privilege and work product protection from communications if the moving party establishes "a prima facie case of crime or fraud," and "a reasonable relationship between the crime or fraud and the attorney-client communication." No. C07-05795 HRL, 2013 U.S. Dist. LEXIS 4810, at *5 (N.D. Cal. Jan. 11, 2013) (not for citation). The court found that plaintiff had carried this burden. At nearly the same time, the District of Nebraska declined to apply the crime-fraud exception, concluding that plaintiffs "have not offered sufficient evidence to show a factual basis adequate to support a good faith belief by a reasonable person that the crime-fraud exception applies." Davis v. Hugo Enters., LLC, No. 8:11CV221, 2013 U.S. Dist. LEXIS 3357, at *11 (D. Neb. Jan. 9, 2013). A week later, the Eastern District of Pennsylvania found that the government had satisfied its burden, and ordered grand jury targets' lawyer to testify about his conversations with his clients. In re Grand Jury Subpoena, G.J. No. 10-127-02, 2013 U.S. Dist. LEXIS 8127 (E.D. Pa. Jan. 18, 2013). As in Everflow Technology, the Grand Jury court articulated another universally applied rule: "The crime-fraud exception applies whether or not the attorney was actually aware that his or her advice was being used for nefarious purposes." Id. At *10.

Litigants should remember that merely alleging an adversary's crime or fraud does not result in forfeiture of privilege or work product protection. On the other hand, no court requires a litigant to actually prove the adversary's criminal guilt or fraud liability.

Case Date Jurisdiction State Cite Checked
2013-01-11 Federal CA
Comment:

key case


Chapter: 18.1102
Case Name: Everflow Tech. Corp. v. Millennium Elecs., Inc., No. C07 05795 HRL, 2013 U.S. Dist. LEXIS 4810, at *4-5 (N.D. Cal. Jan. 11, 2013)
("The crime-fraud exception is 'very limited,' and its proponent must make two showings. . . . First, it must establish a prima facie case of crime or fraud. . . . Second, it must establish a reasonable relationship between the crime or fraud and the attorney-client communication.")

Case Date Jurisdiction State Cite Checked
2013-01-11 Federal CA B 7/13

Chapter: 18.1102
Case Name: Davis v. Hugo Enters., LLC, No. 8:11CV221, 2013 U.S. Dist. LEXIS 3357, at *11 (D. Neb. Jan. 9, 2013)
March 13, 2013 (PRIVILEGE POINT)

"Courts Apply the Crime-Fraud Exception"

Every court recognizes that neither the attorney-client privilege nor the work product doctrine should protect communications that further the client's criminal or fraudulent conduct. Although courts differ on some of the elements of the "crime-fraud" exception, they agree on some basic concepts.

In Everflow Technology Corp. v. Millennium Electronics, Inc., the court pointed to a California evidence rule stripping privilege and work product protection from communications if the moving party establishes "a prima facie case of crime or fraud," and "a reasonable relationship between the crime or fraud and the attorney-client communication." No. C07-05795 HRL, 2013 U.S. Dist. LEXIS 4810, at *5 (N.D. Cal. Jan. 11, 2013) (not for citation). The court found that plaintiff had carried this burden. At nearly the same time, the District of Nebraska declined to apply the crime-fraud exception, concluding that plaintiffs "have not offered sufficient evidence to show a factual basis adequate to support a good faith belief by a reasonable person that the crime-fraud exception applies." Davis v. Hugo Enters., LLC, No. 8:11CV221, 2013 U.S. Dist. LEXIS 3357, at *11 (D. Neb. Jan. 9, 2013). A week later, the Eastern District of Pennsylvania found that the government had satisfied its burden, and ordered grand jury targets' lawyer to testify about his conversations with his clients. In re Grand Jury Subpoena, G.J. No. 10-127-02, 2013 U.S. Dist. LEXIS 8127 (E.D. Pa. Jan. 18, 2013). As in Everflow Technology, the Grand Jury court articulated another universally applied rule: "The crime-fraud exception applies whether or not the attorney was actually aware that his or her advice was being used for nefarious purposes." Id. At *10.

Litigants should remember that merely alleging an adversary's crime or fraud does not result in forfeiture of privilege or work product protection. On the other hand, no court requires a litigant to actually prove the adversary's criminal guilt or fraud liability.

Case Date Jurisdiction State Cite Checked
2013-01-09 Federal NE
Comment:

key case


Chapter: 18.1102
Case Name: In re Park Cities Bank, 409 S.W.3d 859, 869 (Tex. Ct. App. 2013)
("The crime-fraud exception applies only if (1) the party asserting the exception makes a prima facie showing that a crime or fraud was ongoing or about to be committed, and (2) there is a relationship between the document for which the privilege is challenged and the prima facie proof offered. . . . The prima facie requirement is met when the proponent offers evidence establishing the elements of fraud and that the fraud was ongoing, or about to be committed, at the time the document was prepared. . . . The fraud alleged to have occurred must have happened at or during the time the document was prepared, and the document must have been created as part of perpetrating the fraud."; "In addition to the prima facie showing, the party asserting the crime-fraud exception must show that a nexus exists between the privileged documents and the alleged fraud. . . . This nexus must be established for each privileged document. . . . Mere allegations of a connection between the alleged fraud and the document will not suffice.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State TX B 4/14

Chapter: 18.1102
Case Name: People v. Radojcic, 998 N.E.2d 1212, 1222-23 (Ill. 2013)
("Disclosure of otherwise privileged attorney-client communications under the crime-fraud exception cannot be based solely on a charge of illegality unsupported by any evidence. . . . Rather, '[t]o drive the privilege away, there must be something to give colour to the charge.' . . . Specifically, the proponent of the crime-fraud exception must present evidence from which a 'prudent person' would have a 'reasonable basis to suspect' (1) 'the perpetration or attempted perpetration of a crime or fraud, and' (2) 'that the communications were in furtherance thereof.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 5/14

Chapter: 18.1102
Case Name: People v. Radojcic, 998 N.E.2d 1212, 1222-23, 1223 n.4 (Ill. 2013)
(analyzing the crime-fraud exception in a criminal prosecution involving alleged mortgage fraud; "Disclosure of otherwise privileged attorney-client communications under the crime-fraud exception cannot be based solely on a charge of illegality unsupported by any evidence. . . . Specifically, the proponent of the crime-fraud exception must present evidence from which a '"prudent person"' would have a '"reasonable basis to suspect"' (1) '"the perpetration or attempted perpetration of a crime or fraud, and'" (2) '"that the communications were in furtherance thereof."'" (citation omitted); "This evidentiary burden has been described as both a prima facie showing and a probable cause showing.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 5/14

Chapter: 18.1102
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *23 (E.D. Va. Dec. 3, 2012)
("The Government is not required to prove Moazzeni's alleged crimes beyond a reasonable doubt, by clear and convincing evidence, or even by a preponderance of the evidence. In re Grand Jury Proceedings #5, 401 F.3d at 251. Rather, it is sufficient that the Government makes a prima facie showing that a fraudulent scheme was afoot and that the otherwise privileged documents relate to the fraud. Id."; "Here, the criminal activity is a scheme to defraud creditors by hiding assets; the means of accomplishing this feat were non-disclosure of Moazzeni's interest in the subject assets. By Moazzeni's design, the bankruptcy schedules prepared by Mahmoud omitted these assets, thereby using The Jernigan Law Firm to perpetrate a fraud. Thus, each of the documents related to the preparation, filing, and consequences of those inaccurate schedules falls within the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA
Comment:

key case


Chapter: 18.1102
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *10, *11 (E.D. Va. Dec. 3, 2012)
("It is incumbent upon the Government to make a prima facie showing that privileged communications fall within the exception. . . . To do so, the Government need not prove the existence of a crime beyond a reasonable doubt or even by a preponderance of the evidence it is sufficient if the prima facie showing establishes that . . . [t]he client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme."; "When applying the crime-fraud exception to the attorney-client privilege, the attorney need not be aware that illegal or fraudulent conduct is afoot.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA B 5/13

Chapter: 18.1102
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *23, *24-25 (E.D. Va. Dec. 3, 2012)
("The Government is not required to prove Moazzeni's alleged crimes beyond a reasonable doubt, by clear and convincing evidence, or even by a preponderance of the evidence. . . . Rather, it is sufficient that the Government makes a prima facie showing that a fraudulent scheme was afoot and that the otherwise privileged documents relate to the fraud. . . ."; "Here, the criminal activity is a scheme to defraud creditors by hiding assets; the means of accomplishing this feat were non-disclosure of Moazzeni's interest in the subject assets. By Moazzeni's design, the bankruptcy schedules prepared by Mahmoud omitted these assets, thereby using The Jernigan Law Firm to perpetrate a fraud. Thus, each of the documents related to the preparation, filing, and consequences of those inaccurate schedules falls within the crime-fraud exception."; "[T]he Government has sufficiently shown that Krumbein [lawyer] was unwittingly used as a sword to cast blame on Mahmoud, thereby perpetrating a further fraud on the Bankruptcy Court. Although the parties agree that Krumbein was unaware of any misconduct, Moazzeni directed Krumbein to accuse Mahmoud of mistakes or misconduct in preparing the schedules. In effect, Moazzeni attempted to hide his first fraud by effecting a new fraud -- that several members of the bankruptcy bar were responsible for his apparent scheme. Any communications with Krumbein in furtherance of this effort to blame Mahmoud and Jernigan fall within the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA B 5/13

Chapter: 18.1102
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *10 (E.D. Va. Dec. 3, 2012)
("It is incumbent upon the Government to make a prima facie showing that privileged communications fall within the exception. . . . To do so, the Government need not prove the existence of a crime beyond a reasonable doubt or even by a preponderance of the evidence -- it is sufficient if the prima facie showing establishes that . . . [t]he client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme."; "When applying the crime-fraud exception to the attorney-client privilege, the attorney need not be aware that illegal or fraudulent conduct is afoot.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA B 5/13

Chapter: 18.1102
Case Name: Confidential Informant 59-05071 v. United States, 108 Fed. Cl. 121, 130 (Fed. Cl. 2012)
(requiring the government to provide more details on the privilege log; "This exception -- the so-called crime-fraud exception -- may be invoked if the party challenging the assertion of attorney-client privilege 'make[s] a prima facie showing that the communication [at issue] was made "in furtherance of" a crime or fraud.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal Other B 9/13

Chapter: 18.1102
Case Name: In re Grand Jury, 705 F.3d 133, 153 (3d Cir. 2012)
(finding the crime fraud exception applicable; "Today, we clarify that our precedent is properly captured by the reasonable basis standard. The attorney-client privilege, work product doctrine, and crime-fraud exception are all compromises based on policy determinations. Although it is difficult to predict whether a particular standard of proof will strike the appropriate balance between these competing policy concerns, we believe, as do other circuit courts, that the reasonable basis standard affords sufficient predictability for attorneys and clients without providing undue protection to those that seek to abuse the privileges afforded to them. This is also the standard that we believe is closest to the Supreme Court's pronouncement that, for the crime-fraud exception to apply, 'there must be something to give colour to the charge' that the attorney-client communication was used in furtherance of a crime or fraud." (citation omitted))

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal B 8/13

Chapter: 18.1102
Case Name: In re Grand Jury, 705 F.3d 133, 152 (3d Cir. 2012)
(finding the crime fraud exception applicable; "Courts of appeals have articulated the proper measure of proof in different ways. Some require there to be probable cause or a reasonable basis to suspect or believe that the client was committing or intending to commit a crime or fraud and that the attorney-client communications were used in furtherance of the alleged crime or fraud. . . . Other courts call for evidence sufficient to compel the party asserting the privilege to come forward with an explanation for the evidence offered against the privilege. . . . Still other courts demand a showing of evidence that, if believed by a trier of fact, would establish that some violation was ongoing or about to be committed and that the attorney-client communications were used in furtherance of that scheme.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal B 8/13

Chapter: 18.1102
Case Name: United States v. Oracle Corp., Civ. A. No. 1:07cv529 (LMB/TRJ), 2011 U.S. Dist. LEXIS 72377, at *3 (E.D. Va. July 6, 2011)
("Under Fourth Circuit precedent, and as stated in the April 21, 2011 memorandum opinion in this case, the crime/fraud exception to the attorney-client privilege applies upon a prima facie showing '1) that defendant was engaged in or planning a criminal or fraudulent scheme and used his counsel to further the scheme, and 2) that the privileged information bears a close relationship to the criminal or fraudulent scheme.' United States ex rel. Frascella v. Oracle Corp., No. 1:07-cv-00529, 2011 U.S. Dist. LEXIS 43322 (E.D. Va. April 21, 2011) (quoting In re Galaxy Computer Servs., Inc., No. 1:04-cv-00007, 2004 U.S. Dist. LEXIS 28162, 2004 WL 3661433, at *3 (E.D. Va. March 31, 2004) (Brinkema, J.)) (internal quotation marks omitted).")

Case Date Jurisdiction State Cite Checked
2011-07-06 Federal VA

Chapter: 18.1102
Case Name: United States v. Under Seal (In re Grand Jury Investigation), 352 F. App'x 805, 808 (4th Cir. 2009)
("The burden is on the party asserting the crime-fraud exception, here the Government, to make a prima facie showing that the exception applies. Id. [In re Grand Jury Proceedings # 5, 401 F.3d at 251]; see also In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994).")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal

Chapter: 18.1102
Case Name: United States v. Under Seal (In re Grand Jury Investigation), 352 F. App'x 805, 808 (4th Cir. 2009)
("The invocation of the crime-fraud exception requires a prima facie showing that '(1) the client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme, and (2) the documents containing the privileged materials bear a close relationship to the client's existing or future scheme to commit a crime or fraud.' In re Grand Jury Proceedings # 5, 401 F.3d at 251 (citations omitted). A party invoking the crime-fraud exception can satisfy the first prong of this test by making a prima facie showing of evidence, which, if accepted by the trier of fact, establishes the elements of an ongoing or prospective violation of the law. . . . The second prong of this test is satisfied with a showing of a close relationship between the withheld communications and the alleged violation. . . . Once a sufficient showing has been made, the attorney-client privilege ceases to protect any of the communications related to the alleged violation. In re Grand Jury Subpoena, 419 F.3d 329, 345 (5th Cir. 2005) (citing In re Sealed Case, 676 F.2d 793, 812 n.74, 219 U.S. App. D.C. 195 (D.C. Cir. 1982)). . . . the district court could decide whether the crime-fraud exception applies in either of two ways. See In re Grand Jury Subpoena # 06-1, 274 F. App'x at 309. One approach permits the district court to examine the withheld documents in an in camera hearing after the Government makes a factual showing that would support a good faith belief by a reasonable person that an examination of the withheld documents would reveal evidence of a violation of the law. Id. at 310 (citations omitted). In the alternative, the district court could make a determination that the crime-fraud exception applied without examining the withheld documents by conducting an ex parte and in camera examination of evidence from the Government. Id. This second alternative does not require that the Government make a threshold factual showing of the basis for the application of the crime-fraud exception. Id. In determining whether the crime-fraud exception applies, courts may rely on evidence not ordinarily admissible at trial. In re Grand Jury Subpoena, 884 F.2d at 127.")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal

Chapter: 18.1102
Case Name: Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 446 (W.D. Va. 2009)
("In order to overcome the attorney-client privilege, a party must make an independent prima facie showing of fraud. See In re Grand Jury Proceedings v. Under Seal, 33 F.3d 342, 348 (4th Cir. 1994). In order to make a prima facie showing of fraud, the Fourth Circuit has held that two tests must be satisfied: (1) the client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme; and (2) the documents containing the privileged materials bear a close relationship to the client's existing or future scheme to commit a crime or fraud. Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999). The proof 'must be such as to subject the opposing party to the risk of non-persuasion if the evidence as to the disputed fact is left unrebutted.' Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1220 (4th Cir. 1976).")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal VA

Chapter: 18.1102
Case Name: The Flexible Benefits Council v. Feldman, 1:08cv371 (JCC), 2008 U.S. Dist. LEXIS 79226, at *13 (E.D. Va. Oct. 8, 2008)
("The party asserting the exception bears the burden of making a prima facie showing that the privileged communications fall within the exception. Chaudhry, 174 F.3d at 403-04.")

Case Date Jurisdiction State Cite Checked
2008-10-08 Federal VA

Chapter: 18.1102
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 831 (E.D. Va. 2005)
("These principles, applied here, make clear that the government has made a prima facie showing that the crime-fraud exception applies to the conversations in question. In this case, the contents of the telephone calls, viewed as a whole, leave no doubt that Lentz's primary purpose in calling Mr. Salvato was to discuss Lentz's murder-for-hire plot."), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal VA

Chapter: 18.1102
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 831 (E.D. Va. 2005)
(holding that the crime-fraud exception applied to communications between a jailed inmate and his lawyer, because "The party asserting the crime-fraud exception to the privilege here, the government bears the burden to establish a prima facie case that the communications in question fall outside the scope of the privilege. In re Grand Jury Proceedings # 5, 401 F.3d at 251; Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999). To overcome an established privilege using the crime-fraud exception, the government must show that the communications (i) were made for an unlawful purpose or to further an illegal scheme and (ii) reflect an ongoing or future unlawful or illegal scheme or activity. Importantly, the purported crime or fraud need not be proved either by a preponderance or beyond a reasonable doubt. Rather, the proof 'must be such as to subject the opposing party to the risk of non-persuasion [if] the evidence as to the disputed fact is left unrebutted.' See Union Camp Corp., 385 F.2d at 144-45. Finally, when making its prima facie showing, the government is not limited to admissible evidence; it may rely on any relevant evidence, including hearsay, that has been lawfully obtained that is not otherwise privileged." (footnote omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal VA

Chapter: 18.1102
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 832 (E.D. Va. 2005)
("Given that the government has more than met its burden to show that the calls at issue fall within the crime-fraud exception, it falls to Lentz to rebut this showing. He has failed to do so; he offers no plausible justification or argument for why the conversations at issue should escape the crime-fraud exception to the privilege. Therefore, because the crime-fraud exception strips the conversations at issue of any privilege protection, the contents of the calls between Lentz and Mr. Salvato would not be protected by the privilege even had they been confidential." (footnote omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal VA

Chapter: 18.1102
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251 (4th Cir. 2005)
("Specifically, we have held that the party invoking the crime-fraud exception must make a prima facie showing that (1) the client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme, and (2) the documents containing the privileged materials bear a close relationship to the client's existing or future scheme to commit a crime or fraud. . . . Prong one of this test is satisfied by a prima facie showing of evidence that, if believed by a trier of fact, would establish the elements of some violation that was ongoing or about to be committed. . . . Prong two may be satisfied with a showing of a close relationship between the attorney-client communications and the possible criminal or fraudulent activity.")

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 18.1102
Case Name: In re Galaxy Computer Servs., Inc., Civ. A. No. 04-07-A, 2004 U.S. Dist. LEXIS 28162, at *7 (E.D. Va. Mar. 31, 2004)
("For the crime/fraud exception to apply, the movant must make a prima facie showing of fraudulent conduct. United States v. Ruhbayan, 201 F.Supp.2d 682, 685 (E.D.Va. 2002). This prima facie showing has two prongs: '1) that defendant was engaged in or planning a criminal or fraudulent scheme and used his counsel to further the scheme, and 2) that the privileged information bears a close relationship to the criminal or fraudulent scheme.' Id. at 685-86.")

Case Date Jurisdiction State Cite Checked
2004-03-31 Federal VA

Chapter: 18.1102
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 287 (E.D. Va. 2004)
("[W]ill conduct an in camera review of the privileged documents to determine whether the documents themselves give rise to a prima facie case of spoliation sufficient to support application of the crime/fraud exception. Zolin, 491 U.S. at 574-75; In re Grand Jury Proceedings, 33 F.3d 342, 350 (4th Cir. 1994).")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 18.1102
Case Name: United States v. Ruhbayan, 201 F. Supp. 2d 682, 686 (E.D. Va. 2002)
("The government has met its burden in this case of demonstrating that the crime-fraud exception vitiates any asserted privilege. It has offered sufficient unrebutted prima facie evidence that, if believed by the trier of fact, establishes the elements of the crime of obstruction of justice. See In re Sealed Case, 333 U.S. App. D.C. 245, 162 F.3d 670, 674 (D.C. Cir. 1998); Haines v. Liggett Group Inc., 975 F.2d 81, 95-96 (3d Cir. 1992).")

Case Date Jurisdiction State Cite Checked
2002-01-01 Federal VA

Chapter: 18.1102
Case Name: Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999)
("Appellants, as the party asserting the crime/fraud exception, must make a prima facie showing that the privileged communications fall within the exception. Appellants must prove that '(1) the client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme and (2) the documents containing [the privileged materials] . . . bear a close relationship to the client's existing or future scheme to commit a crime or fraud.'"), cert. denied, 120 S. Ct. 215 (1999)

Case Date Jurisdiction State Cite Checked
1999-01-01 Federal

Chapter: 18.1102
Case Name: In re Grand Jury Proceedings, Thursday Special Grand Jury, Sept. Term, 33 F.3d 342, 348 (4th Cir. 1994)
("only the prima facie showing of fraud is necessary to establish the exception")

Case Date Jurisdiction State Cite Checked
1994-01-01 Federal

Chapter: 18.1102
Case Name: Union Camp Corp. v. Lewis, 385 F.2d 143, 144-45 (4th Cir. 1967)
("The attorney-client privilege is withdrawn upon a prima facie showing that the lawyer's advice was designed to serve his client in commission of a fraud or crime. . . The government met this burden. It was not at this stage of the proceedings required to prove the crime or fraud in order to secure the evidence. This leads us to add, perhaps unnecessarily, that in denying the writ, we express no opinion upon the facts or law touching upon the merits of the case. Nor do we foreclose Union Camp, or others, if an indictment be returned, from moving to suppress the evidence or otherwise objecting to its admission.")

Case Date Jurisdiction State Cite Checked
1967-01-01 Federal

Chapter: 18.1103
Case Name: Adidas America, Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2018 U.S. Dist. LEXIS 164159 (D. Ore. Sept. 25, 2018)
(finding the crime-fraud exception applicable; inexplicably ordering production of a category of documents rather than analyzing the documents one at a time; "The burden of proof by a party in a civil case seeking disclosure under the crime-fraud exception of documents protected by attorney-client privilege or the work-product doctrine is preponderance of the evidence.")

Case Date Jurisdiction State Cite Checked
2018-09-25 Federal OR

Chapter: 18.1103
Case Name: Kenyon & Kenyon LLP v. Sightsound Tech., LLC, 650795/2014, 2018 N.Y. Misc. LEXIS 2511 (N.Y. Sup. Ct. June 21, 2018)
("[T]he crime-fraud exception forces disclosure of communications involving fraudulent schemes, alleged breaches of fiduciary duty, or accusations of other wrongful conduct. . . . A party seeking to compel disclosure based on the crime-fraud exception must establish 'a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime' (id). The Firm has established neither."; "The facts alleged fail to establish probable cause that GE engaged in conversations to either commit or further a fraud on the Firm. . . . GE merely exercised its contractual discretion, as approved by the court.")

Case Date Jurisdiction State Cite Checked
2018-06-21 State NY
Comment:

key case


Chapter: 18.1103
Case Name: Hale v. Emporia State University, Case No. 16-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 56524 (D. Kansas April 3, 2018)
(analyzing the crime-fraud exception in connection with a University's racial discrimination internal investigation; affirming the Magistrate Judge's decision refusing to apply the crime-fraud exception to the attorney-client privilege; noting among other things that the Magistrate Judge properly applied Kansas law in analyzing the exception; "And she [Judge] applied federal common law to define the scope of the privilege and the crime-fraud exception. . . . Judge James then determined that plaintiff's allegations failed to make a prima facie showing of fraud to invoke the crime-fraud exception. Judge James cited Kansas law when she identified the elements of fraud. . . . This approach makes sense because, to determine whether the facts establish a prima facie showing that defendant had committed a crime or fraud sufficient to support the crime-fraud exception under federal common law, the court may apply the forum's law governing the alleged crime or fraud."; "Judge James had erred by using Kansas law as a point of reference, federal common law defines fraud using the same elements as Kansas law.")

Case Date Jurisdiction State Cite Checked
2018-04-03 Federal KS

Chapter: 18.1103
Case Name: Buttonwood Tree Value Partners, L.P. v. R.L. Polk & Co., Civ. A. No. 9250-VCG, 2018 Del. Ch. LEXIS 6 (Del. Ch. Ct. Jan. 10, 2018)
(analyzing the Garner doctrine and the client fraud exception; ultimately concluding that neither one applied in a lawsuit by the members of a family who sold their stock to self-tender; "To invoke the crime-fraud exception, 'a mere allegation of fraud is not sufficient.' Instead, the proponent of the exception must 'make[] a prima facie showing that the confidential communications were made in furtherance of a crime or fraud.' The client must intend the communications 'to be used as a basis for criminal or fraudulent activity, whether or not that criminal or fraudulent intent ever comes to fruition.' Put differently, 'the advice must advance, or the client must intend the advice to advance, the client's criminal or fraudulent purpose.' And it is not enough that the privileged communications 'would provide an adversary with evidence of a crime or fraud.' Nor can the exception be invoked simply because the advice relates to the crime or fraud.' Finally, the exception does not apply 'merely upon a showing that the client communicated with counsel while the client was engaged in criminal [or fraudulent] activity.'"; "The Plaintiffs' invocation of the crime-fraud exception suffers from a fatal flaw: the absence of any evidence that the Defendants sought the advice of their attorneys for the purpose of accomplishing their allegedly fraudulent scheme. The Plaintiffs aver that the 2011 self-tender was fraudulently induced via a failure to disclose several material facts, including that the Polk family was considering selling the company. And, as the privilege logs reveal, the Defendants consulted with attorneys about various restructuring options, including the self-tender. But there is no indication that the Defendants intended to use these consultations to further the purportedly fraudulent scheme, or that the advice received during these consultations helped them perpetrate the scheme. The Plaintiffs have shown only that, during the alleged fraud, the Defendants spoke with counsel about matters related to the transaction in connection with which they allegedly provided inadequate disclosures; the 2011 self-tender. That is not enough, to my mind, to invoke the crime-fraud exception."; "[T]he crime-fraud exception does not vitiate the privilege upon a showing that the privileged communications would provide the movant with evidence useful to demonstrating a crime or fraud. 'If it did, the privilege would be virtually worthless because a client could not freely give, or an attorney request, evidence that might support a finding of culpability.' A privileged communication may reveal that a fraudster knew the information he gave his victim was false. But the crime-fraud exception would not apply to that communication absent a showing that the fraudster consulted his attorney in order to further his fraudulent scheme. The Plaintiffs point to nothing indicating such is the case here. Because the Plaintiffs have failed to make a prima facie showing that the privileged communications at issue were made in furtherance of a fraudulent scheme, the crime-fraud exception does not apply.")

Case Date Jurisdiction State Cite Checked
2018-01-10 State DE

Chapter: 18.1103
Case Name: Hully Enters. V. Baker Botts LLP, Misc. Case No. 17-1466 (BAH), 2017 U.S. Dist. LEXIS 203066 (D.D.C. Dec. 9, 2017)
("The petitioners' submissions here fall short of making a prima facie showing that the crime-fraud exception would apply to the respondents' assertions of privilege.")

Case Date Jurisdiction State Cite Checked
2017-12-09 Federal DC

Chapter: 18.1103
Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "Through its ex parte production of evidence, the SCO has clearly met its burden of making a prima facie showing that the crime-fraud exception applies by showing that the Targets were 'engaged in or planning a criminal or fraudulent scheme when [they] sought the advice of counsel to further the scheme.'")

Case Date Jurisdiction State Cite Checked
2017-10-02 Federal DC

Chapter: 18.1103
Case Name: In re Grand Jury Subpoena ABC Co., No. 16-3479, 2017 U.S. App. LEXIS 10690 (3rd Dis. App. June 16, 2017)
("'[A] party seeking to apply the crime-fraud exception must demonstrate that there is a reasonable basis to suspect (1) that the privilege holder was committing or intending to commit a crime or fraud, and (2) that the attorney-client communication or attorney work product was used in furtherance of that alleged crime or fraud.'. . . 'there must be 'prima facie evidence that [the application of the exception] has some foundation in fact.'. . . 'A 'prima facie showing' requires presentation of 'evidence which, if believed by the fact-finder, would be sufficient to support a finding that the elements of the crime-fraud exception were met.'")

Case Date Jurisdiction State Cite Checked
2017-06-16 Federal

Chapter: 18.1103
Case Name: Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, Adv. Pro. No. 08-01789 (SMB), Adv. Pro. No. 10-04216 (SMB), 2017 Bankr. LEXIS 519 (S.D.N.Y. Feb. 17, 2017)
(noting that courts did not agree on the proof required to strip away privilege under the crime-fraud exception; "The Supreme Court has expressly avoided weighing in on 'the quantum of proof necessary ultimately to establish the applicability of the crime-fraud exception.' See United States v. Zolin, 491 U.S. 554, 563, 109 S. Ct. 2619, 105 L. Ed. 2d 469 & n.7 (1989). In this Circuit, however, it is clear that a party seeking to invoke the crime-fraud exception must 'at least demonstrate that there is probable cause to believe that a crime or fraud has been attempted or committed and that the communications were in furtherance thereof.'. . . the Second Circuit has never expressly indicated how this probable cause standard should be applied in a civil proceeding. . . . Nonetheless, the use of the 'at least' language in Roe I suggests that courts have the discretion to require a standard of proof higher than probable cause."; "Courts in other jurisdictions have described a requesting party's burden in different terms. For example, some courts have suggested (at least in the context of grand jury proceedings) that the requesting party need only make a prima facie showing. . . . By comparison, the Ninth Circuit has phrased the appropriate standard of proof as a 'preponderance of the evidence test.'. . . Indeed, requiring that the showing be made by a preponderance of the evidence is consistent with the procedure under Rule 104 of the Federal Rules of Evidence, which provides that preliminary questions regarding the existence of a privilege are to be decided by the court using that standard."; "Faced with this smorgasbord of competing views, Magistrate Judge Dolinger concluded in Omnicom II that in a civil case such as this one, in which the person asserting the privilege opposes the application to compel production, the test should be 'whether there is substantial reason to believe that [she] engaged in or attempted to commit a fraud and used communications with [her] attorney to do so.'. . . This is the test I choose to apply in this proceeding. I note that 'the fraudulent nature of the objective need not be established definitively; there need only be a reasonable basis for believing that the objective was fraudulent.")

Case Date Jurisdiction State Cite Checked
2017-02-17 Federal NY
Comment:

key case


Chapter: 18.1103
Case Name: In re Animation Workers Antitrust Litigation, Case No. 5:14-cv-04062-LHK, 2016 U.S. Dist. LEXIS 44154 (N.D. Cal. March 30, 2016)
(finding the crime-fraud exception inapplicable, but noting that a civil antitrust violation could trigger the exception under different circumstances; "Last week, the court ordered Defendant Pixar to submit for in camera review various documents involving former Pixar Executive Vice President and General Counsel Lois Scali. Pixar has asserted that these documents are subject to the attorney-client privilege. Notwithstanding that assertion, and after considering evidence from Pixar supporting that assertion, the court held that Plaintiffs had shown there was 'a reasonable, good-faith belief that review of the privileged documents may reveal evidence to establish the claim that the crime fraud exception applies.' The exception applies where (1) the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme and (2) the attorney-client communications for which production is sought are 'sufficiently related to' and were made in furtherance of the intended, or present, continuing illegality."; "While Plaintiffs initially sought in camera review of the documents, what they ultimately seek is the documents' production. Production, as compared to mere in camera review, carries a higher burden of proof than merely a 'reasonable, good-faith belief.' In civil cases such as this one, that burden is preponderance of the evidence, or whether 'it is more likely than not that the party resisting the disclosures sought or used legal advice to commit or to try to commit a crime or fraud.' Having read each and every document submitted, the court holds that Plaintiffs' burden, at least as to the first part of the applicable test, is not yet met.")

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal CA

Chapter: 18.1103
Case Name: Guyton v. Exact Software North America, Case No. 2:14-cv-502, 2015 U.S. Dist. LEXIS 170241 (S.D. Ohio Dec. 21, 2015)
("Here, Ms. Guyton argues that the crime-fraud exception applies because '[p]roviding false statements to the EEOC violates federal criminal statutes in 18 U.S.C. 1001 (providing false statements to a federal agency) and for Ms. Pannkuk's [Defendant's human resources manager] affidavit, 18 U.S.C. 1621 prohibits perjury in an affidavit.'. . . While there appears to be no dispute that those statutes could trigger an application of the crime-fraud exception, the issue is whether those statutes are applicable to the facts of this case."; "Both of the statutes relied upon by Ms. Guyton have an intent element."; "Here, there is no evidence to demonstrate that Ms. Pannkuk had actual knowledge of the falsity of the statements in her affidavit.")

Case Date Jurisdiction State Cite Checked
2015-12-21 Federal OH

Chapter: 18.1103
Case Name: United States v. Gorski, Nos. 14-1963, 14-1964, 14-2074, 2015 U.S. App. LEXIS 21302 (1st Cir. App. Dec. 9, 2015)
(analyzing interlocutory appeals and the crime-fraud exception; concluding the individual defendant cannot pursue an interlocutory appeal, but that a non-party could rely on the Perlman doctrine; finding that the crime-fraud exception applied to communications to and from Mintz Levin, and remanding for the trial court's review of certain documents to determine if the exception applied to them; "By prima facie showing, we mean 'a reasonable basis to believe that the lawyer's services were used by the client to foster a crime or fraud.'. . . This standard may be met by 'something less than a mathematical (more likely than not) probability that the client intended to use the attorney in furtherance of a crime or fraud.'. . . However, it requires more than 'speculation [or] evidence that shows only a distant likelihood of corruption.'")

Case Date Jurisdiction State Cite Checked
2015-12-09 Federal MA

Chapter: 18.1103
Case Name: United States v. Gorski, Nos. 14-1963, 14-1964, 14-2074, 2015 U.S. App. LEXIS 21302 (1st Cir. App. Dec. 9, 2015)
(analyzing interlocutory appeals and the crime-fraud exception; concluding the individual defendant cannot pursue an interlocutory appeal, but that a non-party could rely on the Perlman doctrine; finding that the crime-fraud exception applied to communications to and from Mintz Levin, and remanding for the trial court's review of certain documents to determine if the exception applied to them; "The first issue is whether the district court erred in conducting an in camera review of the privileged documents at all. The Supreme Court has held that district courts may conduct an in camera review of privileged materials upon a 'good faith belief by a reasonable person'. . . That 'in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies,'. . . The standard for in camera review is a 'very relaxed test' that requires a lesser evidentiary showing than what is ultimately needed to pierce the privilege. . . . That standard was met by the prosecution's allegation that Mintz Levin's restructuring of Legion was part of a five-year ongoing scheme whose essence was that the outward structure of the company did not match its actual ownership and control. Gorski's argument that the use of an effective date on corporate documents was not illegal and so could not have formed the basis for the in camera review is too narrowly focused, because it is the entire five-year scheme alleged in the indictment that justifies in camera review. A jury could view the chronology as an attempt to convince the SBA that transactions took place before they did, and to dispel any reason for further SBA inquiry.")

Case Date Jurisdiction State Cite Checked
2015-12-09 Federal MA
Comment:

key case


Chapter: 18.1103
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015)
In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015) (finding the crime-fraud exception inapplicable because the ignition switch plaintiffs could not establish that the King & Spalding communications did not further any alleged General Motors wrongdoing; "Under federal law, which applies here . . . a party seeking the production of otherwise privileged documents pursuant to the crime-fraud exception must make two showings. First, the party 'must at least demonstrate that there is probable cause to believe that a crime or fraud has been attempted or committed'; and second, the party must show 'that the communications were in furtherance thereof.'. . . Where the moving party seeks in camera review of documents to which the crime-fraud exception would potentially apply, the court 'should require a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies. Once that showing is made, the decision whether to engage in in camera review rests in the sound discretion of the district court.'. . . The threshold showing is intended to protect the policy of 'open and legitimate disclosure between attorneys and clients,' to prevent 'groundless fishing expeditions,' and to recognize 'the burdens in camera review places upon the district courts, which may well be required to evaluate large evidentiary records without open adversarial guidance by the parties.'")

Case Date Jurisdiction State Cite Checked
2015-11-25 Federal NY
Comment:

key case


Chapter: 18.1103
Case Name: In re Subpoena to Testify Before Grand Jury, Case No. 15-mc-80207-JSC, 2015 U.S. Dist. LEXIS 122305 (N.D. Cal. Sept. 14, 2015)
("The government must raise more than a mere suspicion of illegal activity . . . 'the exception only applies when there is reasonable cause to believe that the attorney's services were utilized in furtherance of the ongoing unlawful scheme.'. . . In this context, reasonable cause is 'more than suspicion but less than a preponderance of the evidence.'. . . It means 'evidence that, if believed by the jury, would establish the elements of an ongoing violation.'. . . Thus, 'the Government must [only] make a prima facie showing that a crime has been committed, and demonstrate the nexus between the prima facie showing and the communications sought.'. . . The prima facie showing must be made from evidence independent of the purportedly privileged communications."; "'The standard is different in civil cases than in grand jury cases. . . . In 'a civil case the burden of proof that must be carried by a party seeking outright disclosure of attorney-client communications under the crime-fraud exception [is] preponderance of the evidence.'"; "Importantly, '[t]he attorney need not himself be aware of the illegality involved; it is enough that the communication furthered, or was intended by the client to further, that illegality.'").

Case Date Jurisdiction State Cite Checked
2015-09-14 Federal CA

Chapter: 18.1103
Case Name: In re Grand Jury Proceedings, No. 15-1555, 2015 U.S. App. LEXIS 15911 (1st Cir. App. Sept. 4, 2015)
(assessing the crime-fraud exception; "The government has the burden of establishing the application of the crime-fraud exception by establishing 'a reasonable basis to believe that the lawyer's services were used by the client to foster a crime or fraud.'. . . If the party asserting the crime-fraud exception makes this reasonable cause showing (also referred to as a prima facie case), the privilege is forfeited.").

Case Date Jurisdiction State Cite Checked
2015-09-04 Federal

Chapter: 18.1103
Case Name: Stryker Corporation v. Ridgeway, Case No. 1:13-CV-1066, Case No. 1:14-CV-889, 2015 U.S. Dist. LEXIS 93741 (W.D. Mich. July 20, 2015)
("One cannot defeat the attorney-client privilege merely by making a charge of fraud. To defeat the privilege, a party must present prima facie evidence that the charge of fraud has some foundation in fact. . . . In other words, to invoke the crime-fraud exception, a party must make a sufficient showing that would give a prudent person a reasonable basis to suspect the perpetration of a crime or fraud.")

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal MI

Chapter: 18.1103
Case Name: Ishee v. Federal National Mortgage Association, Civ. A. No. 2:13-cv-234-KS-MTP, 2014 U.S. Dist. LEXIS 71141 (S.D. Miss. May 23, 2014)
("The party seeking to invoke the crime-fraud exception bears the burden of establishing a prima facie case that the attorney-client relationship was intended to further criminal or fraudulent activity. . . . To make the necessary prima facie showing, Plaintiff 'must produce evidence such as will suffice until contradicted and overcome by other evidence' to establish the elements of a crime or fraud. . . . 'Allegations in pleadings are not evidence and are not sufficient to make a prima facie showing that the crime-fraud exception applies.'. . . Also, Plaintiff must show 'some valid relationship between the work product under subpoena and the prima facie violation' or that the 'material reasonably relate[s] to the fraudulent activity.'")

Case Date Jurisdiction State Cite Checked
2014-05-23 Federal MS

Chapter: 18.1103
Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *13-14, *14 (E.D. Wis. July 10, 2013)
("[F]or the crime-fraud exception to apply there must be prima facie evidence regarding the charge, and prima facie evidence generally means probable cause to believe that a crime has been attempted or committed and that the communications at issue were in furtherance of the crime. As an indictment must be based on probable cause . . ., the government has established that the crime-fraud exception may apply to some communications. . . . Defendants Balsiger and Currey concede that the Superseding Indictment constitutes a prima facie showing for purposes of this privilege dispute."; "However, '[a]lthough an indictment may provide probable cause to believe that the crime charged was committed, an indictment, standing alone, does not provide probable cause to believe that [an individual's] communications with [his] lawyers were in furtherance of the conduct charged in the Indictment.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 18.1103
Case Name: United States v. Pons, No. 11 CR 670, 2013 U.S. Dist. LEXIS 35903, at *11-12 (N.D. Ill. Mar. 15, 2013)
("In order for the crime-fraud exception to apply, the party seeking the exception should first 'present prima facie evidence that gives color to the charge by showing some foundations in fact.'. . . Prima facie evidence does not mean evidence sufficient 'to support a verdict in favor of the person making the claim.'. . . Rather, the term 'prima facie evidence' is used by courts to describe evidence that is 'enough to require explanation rather than evidence that by itself satisfies a more-likely-than-not standard.'. . . Thus a 'prima facie case' is defined 'with regard to its function: to require the adverse party, the one with superior access to the evidence and in the best position to explain things, to come forward with that explanation.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal IL B 3/14

Chapter: 18.1103
Case Name: In re Grand Jury Subpoena, G.J. No. 10-127-02, 2013 U.S. Dist. LEXIS 8127, at *11 (E.D. Pa. Jan. 18, 2013)
(analyzing the crime-fraud exception; "The Third Circuit Court of Appeals has recently clarified the quantum of proof necessary to make a prima facie showing that the crime-fraud exception applies. See In re Grand Jury, 2012 U.S. App. LEXIS 25318, 2012 WL 6156176. In that decision, the Third Circuit Court of Appeals held that the 'reasonable basis' standard applies to crime-fraud exception determinations.")

Case Date Jurisdiction State Cite Checked
2013-01-18 Federal PA B 7/13

Chapter: 18.1103
Case Name: In re Park Cities Bank, 409 S.W.3d 859, 869 (Tex. Ct. App. 2013)
("The crime-fraud exception applies only if (1) the party asserting the exception makes a prima facie showing that a crime or fraud was ongoing or about to be committed, and (2) there is a relationship between the document for which the privilege is challenged and the prima facie proof offered. . . . The prima facie requirement is met when the proponent offers evidence establishing the elements of fraud and that the fraud was ongoing, or about to be committed, at the time the document was prepared. . . . The fraud alleged to have occurred must have happened at or during the time the document was prepared, and the document must have been created as part of perpetrating the fraud."; "In addition to the prima facie showing, the party asserting the crime-fraud exception must show that a nexus exists between the privileged documents and the alleged fraud. . . . This nexus must be established for each privileged document. . . . Mere allegations of a connection between the alleged fraud and the document will not suffice.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State TX B 4/14

Chapter: 18.1103
Case Name: People v. Radojcic, 998 N.E.2d 1212, 1222-23, 1223 n.4 (Ill. 2013)
(analyzing the crime-fraud exception in a criminal prosecution involving alleged mortgage fraud; "Disclosure of otherwise privileged attorney-client communications under the crime-fraud exception cannot be based solely on a charge of illegality unsupported by any evidence. . . . Specifically, the proponent of the crime-fraud exception must present evidence from which a '"prudent person"' would have a '"reasonable basis to suspect"' (1) '"the perpetration or attempted perpetration of a crime or fraud, and'" (2) '"that the communications were in furtherance thereof."'" (citation omitted); "This evidentiary burden has been described as both a prima facie showing and a probable cause showing.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 5/14

Chapter: 18.1103
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *10, *11 (E.D. Va. Dec. 3, 2012)
("It is incumbent upon the Government to make a prima facie showing that privileged communications fall within the exception. . . . To do so, the Government need not prove the existence of a crime beyond a reasonable doubt or even by a preponderance of the evidence it is sufficient if the prima facie showing establishes that . . . [t]he client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme."; "When applying the crime-fraud exception to the attorney-client privilege, the attorney need not be aware that illegal or fraudulent conduct is afoot.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA B 5/13

Chapter: 18.1103
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *23 (E.D. Va. Dec. 3, 2012)
("The Government is not required to prove Moazzeni's alleged crimes beyond a reasonable doubt, by clear and convincing evidence, or even by a preponderance of the evidence. In re Grand Jury Proceedings #5, 401 F.3d at 251. Rather, it is sufficient that the Government makes a prima facie showing that a fraudulent scheme was afoot and that the otherwise privileged documents relate to the fraud. Id."; "Here, the criminal activity is a scheme to defraud creditors by hiding assets; the means of accomplishing this feat were non-disclosure of Moazzeni's interest in the subject assets. By Moazzeni's design, the bankruptcy schedules prepared by Mahmoud omitted these assets, thereby using The Jernigan Law Firm to perpetrate a fraud. Thus, each of the documents related to the preparation, filing, and consequences of those inaccurate schedules falls within the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA

Chapter: 18.1103
Case Name: In re Grand Jury, 705 F.3d 133, 152 (3d Cir. 2012)
(finding the crime-fraud exception applicable; "While there is general agreement on these precepts, courts of appeals are divided as to the appropriate quantum of proof necessary to make a prima facie showing. This is not surprising. '"Prima facie" is among the most rubbery of all legal phrases; it usually means little more than a showing of whatever is required to permit some inferential leap sufficient to reach a particular outcome.'")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal B 8/13

Chapter: 18.1103
Case Name: In re McDowell, 483 B.R. 472, 490 (Bankr. S.D. Tex. 2012)
("Bare suspicions of fraud or criminal conduct, however, are not sufficient to establish the prima facie case.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal TX B 7/13

Chapter: 18.1103
Case Name: In re USA Waste Mgmt. Res., L.L.C., 387 S.W.3d 92, 98 (Tex. Ct. App. 2012)
("Because the record does not establish a prima facie case of the alleged crime, we conclude the trial court abused its discretion to the extent it concluded that Jennings established the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2012-01-01 State TX B 5/13

Chapter: 18.1103
Case Name: Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 446 (W.D. Va. 2009)
("In order to overcome the attorney-client privilege, a party must make an independent prima facie showing of fraud. See In re Grand Jury Proceedings v. Under Seal, 33 F.3d 342, 348 (4th Cir. 1994). In order to make a prima facie showing of fraud, the Fourth Circuit has held that two tests must be satisfied: (1) the client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme; and (2) the documents containing the privileged materials bear a close relationship to the client's existing or future scheme to commit a crime or fraud. Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999). The proof 'must be such as to subject the opposing party to the risk of non-persuasion if the evidence as to the disputed fact is left unrebutted.' Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1220 (4th Cir. 1976).")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal VA

Chapter: 18.1103
Case Name: United States v. Under Seal (In re Grand Jury Investigation), 352 F. App'x 805, 808 (4th Cir. 2009)
("The invocation of the crime-fraud exception requires a prima facie showing that '(1) the client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme, and (2) the documents containing the privileged materials bear a close relationship to the client's existing or future scheme to commit a crime or fraud.' In re Grand Jury Proceedings # 5, 401 F.3d at 251 (citations omitted). A party invoking the crime-fraud exception can satisfy the first prong of this test by making a prima facie showing of evidence, which, if accepted by the trier of fact, establishes the elements of an ongoing or prospective violation of the law. . . . The second prong of this test is satisfied with a showing of a close relationship between the withheld communications and the alleged violation. . . . Once a sufficient showing has been made, the attorney-client privilege ceases to protect any of the communications related to the alleged violation. In re Grand Jury Subpoena, 419 F.3d 329, 345 (5th Cir. 2005) (citing In re Sealed Case, 676 F.2d 793, 812 n.74, 219 U.S. App. D.C. 195 (D.C. Cir. 1982)). . . . the district court could decide whether the crime-fraud exception applies in either of two ways. See In re Grand Jury Subpoena # 06-1, 274 F. App'x at 309. One approach permits the district court to examine the withheld documents in an in camera hearing after the Government makes a factual showing that would support a good faith belief by a reasonable person that an examination of the withheld documents would reveal evidence of a violation of the law. Id. at 310 (citations omitted). In the alternative, the district court could make a determination that the crime-fraud exception applied without examining the withheld documents by conducting an ex parte and in camera examination of evidence from the Government. Id. This second alternative does not require that the Government make a threshold factual showing of the basis for the application of the crime-fraud exception. Id. In determining whether the crime-fraud exception applies, courts may rely on evidence not ordinarily admissible at trial. In re Grand Jury Subpoena, 884 F.2d at 127.")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal

Chapter: 18.1103
Case Name: The Flexible Benefits Council v. Feldman, 1:08cv371 (JCC), 2008 U.S. Dist. LEXIS 79226, at *15-16 (E.D. Va. Oct. 8, 2008)
("Defendants incorrectly believe that the crime-fraud exception requires the court to decide the ultimate issue. In re Grand Jury Proceedings, 401 F.3d 247, 251 (4th Cir. 2005) ("In satisfying this prima facie standard, proof either by a preponderance or beyond a reasonable doubt of the crime or fraud is not required."). Rather, the Fourth Circuit requires 'enough evidence to support a verdict in favor of the party making the claim.' See Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1220 (4th Cir. 1976). In light of this standard, the Court finds that Plaintiff has met its burden of proof and shown that the documents it seeks to compel involve communications between Feltman and Hawks intended to further a present scheme of fraudulent or tortious acts. The Court agrees with the Magistrate Judge's alternative finding that, if any attorney-client privilege does exist, it is excluded from that privilege by the crime fraud exception.")

Case Date Jurisdiction State Cite Checked
2008-10-08 Federal VA

Chapter: 18.1103
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 831 (E.D. Va. 2005)
(holding that the crime-fraud exception applied to communications between a jailed inmate and his lawyer, because "The party asserting the crime-fraud exception to the privilege here, the government bears the burden to establish a prima facie case that the communications in question fall outside the scope of the privilege. In re Grand Jury Proceedings # 5, 401 F.3d at 251; Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999). To overcome an established privilege using the crime-fraud exception, the government must show that the communications (i) were made for an unlawful purpose or to further an illegal scheme and (ii) reflect an ongoing or future unlawful or illegal scheme or activity. Importantly, the purported crime or fraud need not be proved either by a preponderance or beyond a reasonable doubt. Rather, the proof 'must be such as to subject the opposing party to the risk of non-persuasion [if] the evidence as to the disputed fact is left unrebutted.' See Union Camp Corp., 385 F.2d at 144-45. Finally, when making its prima facie showing, the government is not limited to admissible evidence; it may rely on any relevant evidence, including hearsay, that has been lawfully obtained that is not otherwise privileged." (footnote omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal VA

Chapter: 18.1103
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 832 (E.D. Va. 2005)
("Given that the government has more than met its burden to show that the calls at issue fall within the crime-fraud exception, it falls to Lentz to rebut this showing. He has failed to do so; he offers no plausible justification or argument for why the conversations at issue should escape the crime-fraud exception to the privilege. Therefore, because the crime-fraud exception strips the conversations at issue of any privilege protection, the contents of the calls between Lentz and Mr. Salvato would not be protected by the privilege even had they been confidential." (footnote omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal

Chapter: 18.1103
Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 251 (4th Cir. 2005)
("Both the attorney-client and work product privileges may be lost, however, when a client gives information to an attorney for the purpose of committing or furthering a crime or fraud. . . . The party asserting the crime-fraud exception, the Government in our case, must make a prima facie showing that the privileged communications fall within the exception. . . . In satisfying this prima facie standard, proof either by a preponderance or beyond a reasonable doubt of the crime or fraud is not required.")

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 18.1103
Case Name: In re Galaxy Computer Servs., Inc., Civ. A. No. 04-07-A, 2004 U.S. Dist. LEXIS 28162, at *7 (E.D. Va. Mar. 31, 2004)
("For the crime/fraud exception to apply, the movant must make a prima facie showing of fraudulent conduct. United States v. Ruhbayan, 201 F.Supp.2d 682, 685 (E.D.Va. 2002). This prima facie showing has two prongs: '1) that defendant was engaged in or planning a criminal or fraudulent scheme and used his counsel to further the scheme, and 2) that the privileged information bears a close relationship to the criminal or fraudulent scheme.' Id. at 685-86.")

Case Date Jurisdiction State Cite Checked
2004-03-31 Federal VA

Chapter: 18.1103
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 287 (E.D. Va. 2004)
(after finding that the crime/fraud exception applied, announcing that the court would review documents in camera to determine if "the sought-after documents bear a close relationship to Rambus' spoliation scheme"; finding that the court "will conduct an in camera review of the privileged documents to determine whether the documents themselves give rise to a prima facie case of spoliation sufficient to support application of the crime/fraud exception")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 18.1103
Case Name: In re Andrews, 186 B.R. 219, 222 (Bankr. E.D. Va. 1995)
("the movant does not have to conclusively prove the elements of the purported crime or fraud"; applying the crime/fraud exception)

Case Date Jurisdiction State Cite Checked
1995-01-01 Federal VA