In re Impounded

A federal grand jury issued subpoenas as part of an investigation into a target and business associated with him. The government (plaintiff) subpoenaed a wide range of records. The target’s attorney (the attorney) (defendant) provided some documents in response. The government requested more complete compliance, and the attorney represented that some of the requested categories of records did not exist. The government requested the records again and told the attorney that the target would be summoned to testify about production of the requested records. Again, not all the requested documents were produced, but the target was never summoned. The government issued a more extensive subpoena, and the attorney again represented that most of the requested material did not exist. The government then subpoenaed the custodian of records and a business officer at one of the target’s businesses to provide the unproduced records and testify about personal knowledge of the subpoenaed documents, but the subpoenas were never enforced. The government subpoenaed a third set of records. The attorney again partially complied but continued to assert that not all the documents existed. Search warrants were executed at the target’s home and businesses. Many materials the attorney asserted did not exist were recovered. The attorney was subpoenaed to testify about why he represented certain documents did not exist and why he did not produce certain records. The attorney claimed attorney-client privilege. The government filed a motion to compel. The government argued that any attorney-client privilege was waived under the crime-fraud exception because the target used the attorney’s services in furtherance of obstruction of justice. The district court held it would be fundamentally unfair to compel the attorney’s testimony involving his client and did not analyze whether the crime-fraud exception applied. The government appealed.