The Eighth Circuit today considered how to apply the crime-fraud exception to privilege in the context of a grand jury investigation. The government sought to pierce the attorney-client and attorney work product privileges on the ground that the client hoodwinked his lawyer into presenting a false explanation of the client’s conduct. The district court ordered production of most but not all of the relevant documents, allowing the lawyer to withhold those that reflected his opinion work product.
The Eighth Circuit affirmed. In re Green Grand Jury Proceedings, Nos. 06-3938 & 06-4030 (8th Cir. July 20, 2007). The court noted that, in civil cases, the party opposing application of the crime-fraud exception has the right to present "countervailing evidence." Slip op. at 11 (citing In re General Motors Corp.,153 F.3d 714, 716 (8th Cir. 1998); UMG Recording, Inc. v. Bertelsmann AG (In re Napster, Inc. Copyright Litig.), 479 F.3d 1078, 1093 (9th Cir. 2007)). But the court also observed that a different rule may apply in the grand jury context due to the need to avoid bogging down the process with "mini-trials" on evidentiary questions.