Showing 369 of 369 results

Chapter: 18

Case Name:


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

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
1971-01-01 State VA

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
1967-01-01 Federal

Chapter: 18.302

Case Name: Guyton v. Exact Softwawre 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2004-01-01 Federal VA

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
1971-01-01 State VA

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
1992-01-01 Federal VA N 3/10

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 Jurisidction State Cite Checked
2014-07-02 Federal NY

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 Jurisidction State Cite Checked
2014-01-01 Federal B 7/14

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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)