In re Grand Jury Subpoena (Torf)

Ponderosa Paint Manufacturing, Inc. (Ponderosa) was under investigation by the Environmental Protection Agency (EPA) for improper waste disposal at a Ponderosa plant. Ponderosa retained an attorney, John McCreedy, to represent it in the matter. McCreedy hired Mark Torf (defendant) to investigate the alleged violations and write reports to assist in McCreedy’s defense of Ponderosa. In an effort to avoid litigation, Ponderosa subsequently entered into a consent agreement with the EPA in which it agreed to preserve all records related to hazardous materials at the plant. Torf continued to assist McCreedy in advising Ponderosa on legal compliance by creating reports. A grand jury, still investigating potential violations, eventually subpoenaed Torf for all records involving hazardous-waste disposal. This included documents created after Ponderosa entered into the consent agreement with the EPA. Ponderosa asserted that Torf’s reports, prepared at the direction of McCreedy, were protected by the work-product privilege. The government (plaintiff) argued that these documents would have been created in substantially similar form to comply with the consent order regardless of anticipation of litigation, so the documents were not protected by the work-product doctrine. The magistrate judge granted a motion to quash, but the district court denied it on appeal. Ponderosa appealed the district court’s order.