In re: Grand Jury Investigation

The Organization assisted with the business dealings of a grand jury investigation target. Jane Doe (defendant) was the executive director of the Organization. The federal government (plaintiff) initiated a grand jury investigation of the Organization and Doe. The Organization’s counsel and Doe’s counsel (Doe’s Attorney) entered into a joint-defense agreement. The grand jury issued a subpoena to the Organization requesting materials, including emails related to document-retention and document-destruction policies. The Organization did not respond satisfactorily, so the government issued another subpoena and a letter indicating federal agents would copy the Organization’s hard drives. On January 20, 2005, Doe and Doe’s Attorney discussed the subpoena and the letter. On February 10, government agents copied the Organization’s hard drives. Deleted emails were recovered that indicated a scheme to destroy email evidence. The government began investigating Doe for obstruction of justice. Doe’s Attorney was subpoenaed to testify about and produce his notes regarding his conversations with Doe concerning her compliance with the prior subpoenas. The government filed a motion to enforce the subpoena against Doe’s Attorney. Doe filed a motion to quash, arguing the legal advice she received about complying with the subpoena was privileged. The district court granted the motion to enforce and denied the motion to quash under the crime-fraud exception. Doe appealed.