In re Sealed Case

A company was the subject of a grand-jury investigation. The company’s former vice president and in-house counsel (attorney) asserted the attorney-client privilege when asked to testify. The prosecution (plaintiff) filed a motion to compel the testimony. The testimony covered five subjects: (1) the attorney disclosing to the company’s president (president) a conversation he overheard at an airport; (2) the reasons for the attorney’s “hunches” about the company’s involvement in certain activities, which were based on things the attorney observed in public places; (3) a conversation between the attorney and a senior company executive at a restaurant, during which the attorney provided legal advice to the executive; (4) two conversations covering the company’s legal affairs between the attorney and the president, which included legal advice based in part on confidential company communications and were part of periodic meetings at which the attorney provided status updates on the company’s legal affairs; and (5) a conversation between the attorney and the president in first class on a commercial flight, regarding which the attorney testified that he and the president were seated next to each other speaking at volume levels such that they were not likely to be heard by anyone else. The district court granted the prosecution’s motion to compel and ordered the attorney to testify as to items (1), (2), (4), and (5). The district court denied the prosecution’s motion to compel as to item (3). Both parties appealed.