In re Grand Jury Matter

147 F.R.D. 82, 1992 U.S. Dist. LEXIS 21289, 1992 WL 450731
CourtDistrict Court, E.D. Pennsylvania
DecidedDecember 31, 1992
DocketGrand Jury No. 91-832
StatusPublished
Cited by12 cases

This text of 147 F.R.D. 82 (In re Grand Jury Matter) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Grand Jury Matter, 147 F.R.D. 82, 1992 U.S. Dist. LEXIS 21289, 1992 WL 450731 (E.D. Pa. 1992).

Opinion

RAYMOND J. BRODERICK, District Judge.

Before the Court is a motion by the inter-venor in this grand jury matter to quash a subpoena duces tecum dated April 28, 1992, and for a protective order. The intervenor is a company (hereinafter referred to as the “company”) that is currently being investigated by the Grand Jury for alleged violations of federal criminal statutes in connection with its handling and disposal of hazardous wastes. The subpoena was issued to a professional environmental consulting firm (“expert consultant”), and calls for production of all documents in the expert consultant’s possession with respect to the company’s waste handling and disposal practices from 1987 to the present.

The expert consultant partially complied with the subpoena. At the direction of the [84]*84company, however, it has withheld production of 76 documents concerning the period of October, 1990, to the present. These 76 documents, the company asserts, are protected from disclosure to the Grand Jury by the company’s attorney-client privilege, the attorney work product doctrine, or both.

As stated heretofore, the company is now the subject of a federal criminal investigation by the Grand Jury of its waste handling and disposal practices. The company asserts that the 76 withheld documents were prepared in connection with proceedings initiated by the Pennsylvania Department of Environmental Resources (“PaDER”) in October, 1990, for alleged violations of solid waste management laws and regulations. The company asserts the attorney-client privilege and work product doctrine as to these documents based on its contention that it hired a law firm to provide it with legal advice in connection with PaDER proceedings, which law firm, in turn, retained the expert consultant to provide the law firm with expert environmental consulting services in order for the law firm to render legal advice to the company. The company asserts that it is claiming the privilege only with respect to documentation for tasks that were done by the expert consultant during that period for the purpose of enabling the law firm to render environmental legal advice to the company.

The attorney-client and work product privileges are both applicable to grand jury proceedings. In re Grand Jury Investigation (Sun Co.), 599 F.2d 1224, 1228, 1233 (3d Cir.1979). The Third Circuit has noted, however, that these privileges obstruct the truth-finding process and provide benefits that are “at best, indirect and speculative.” Therefore, they must be “strictly confined within the narrowest possible limits consistent with the logic of [their] principles.” Id. at 1235; In re Grand Jury Proceedings (FMC Corp.), 604 F.2d 798, 802-03 (3d Cir. 1979). Accordingly, it is the company which must establish the applicability of the attorney-client privilege and the work product doctrine by setting set forth with particularity its bases for asserting them.

The right of the public to every person’s evidence is “particularly applicable to grand jury proceedings.” Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972). Those constitutional, common law, or statutory privileges which constitute the exceptions to that right must not, therefore, be applied in a manner which will impede the search for truth in circumstances where the policies underlying these privileges would not be served.

Guided by these general principles, this Court held an in camera hearing on November 24, 1992, on the company’s motion to quash the subpoena duces tecum and for a protective order prohibiting questioning by the Grand Jury of any employees of the expert consultant as to areas claimed by the company to be privileged. Present at the hearing were the attorney for the United States, the agent of the Federal Bureau of Investigation handling this matter, and the attorneys for the company. Based on the evidence presentéd at the in camera hearing, and on the Court’s in camera examination of the 76 documents claimed to be privileged, the Court will deny the company’s motion to quash the subpoena duces tecum and further, will deny the company’s motion for a protective order.

THE ATTORNEY-CLIENT PRIVILEGE

As the Third Circuit recently stated, the purpose of the attorney-client privilege is to encourage full and frank communications between attorneys and their clients. Westinghouse v. Republic of the Philippines, 951 F.2d 1414, 1423 (3rd Cir.1991). The privilege protects only those disclosures that are necessary to obtain informed legal advice which might not have been made absent the privilege. Id. at 1423-24. Accordingly, voluntary disclosure to a third party of purportedly privileged communications has long been considered inconsistent with the privilege, and it is well-settled that when a client voluntarily discloses privileged communications to a third party, the privilege is waived. Id. at 1424. The Third Circuit noted, however, that the client may allow disclosure to an “agent” assisting the attorney in giving legal advice to the client without waiving the privilege. Id.

[85]*85The burden of proving the confidentiality of the communication rests on the party asserting the privilege. United, States v. Bump, 605 F.2d 548, 551 (10th Cir.1979). In this regard, the company has relied primarily on United States v. Kovel, 296 F.2d 918, 922 (2d Cir.1961). In Kovel, Judge Friendly analyzed the extent to which confidential communications made by a client to an accountant were protected from disclosure to a grand jury, when the accountant was an employee of the client’s counsel hired to assist counsel in rendering tax law advice. The company asserts that the expert consultant’s role in this matter is analogous to that of the accountant in Kovel, in that the expert consultant was retained by the law firm to “translate” a bundle of facts and circumstances regarding the company’s waste handling and disposal practices. The communications embodied in the 76 documents between the company and its employees and the expert consultant, and from the expert consultant to the law firm, the company asserts, were made for the sole purpose of assisting the law firm in providing environmental legal advice to the company.

In Kovel, however, the court cautioned as follows:

What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer. If what is sought is not legal advice but only accounting service, or if the advice sought is the accountant’s rather than the lawyer’s, no privilege exists.

Id. at 922 (emphasis original) (citations omitted).

Thus, when a client’s ultimate goal is not legal advice, but is rather accounting, medical, or environmental advice, the privilege is inapplicable. As stated in Kovel at 921:

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Bluebook (online)
147 F.R.D. 82, 1992 U.S. Dist. LEXIS 21289, 1992 WL 450731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-grand-jury-matter-paed-1992.