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Your client Clean Co. is defending a civil suit brought by the Environmental Protection Agency (EPA) for fees and penalties for noncompliance with certain hazardous waste disposal regulations applicable to dry cleaners. A consultant hired by the company to assist with compliance prepared a report advising Clean Co. that certain of its practices did not comply with the regulations. In a written opinion, you advise Clean Co. that the noncompliance may expose it to criminal penalties under various state and federal statutes. Clean Co.’s CEO takes a copy of the consultant’s report home to review it and then resigns. A few days later, Oregon Department of Environmental Quality (DEQ) agents show up at Clean Co.’s door, purportedly to do a routine investigation of the premises. They want an employee familiar with Clean Co.’s processes to give them a tour of the facilities. At the same time, they serve a request for “all” documents related to Clean Co.’s processing methods.

Introduction

We often think of the constitutional rights of individuals – but we rarely consider that corporations also possess constitutional rights. The steps your corporate client takes in response to an agency’s (or any other state entity’s) request to inspect its premises, talk to its employees or hand over its documents implicate important rights that should not unwittingly be waived. Such a waiver could affect your client’s rights in not only the agency proceeding, but also in an ongoing or subsequent criminal investigation.

The first step in avoiding an unwitting waiver is to know your corporate clients’ constitutional rights. Under the Oregon and U.S. Constitutions, corporations are protected against unreasonable searches and seizures, yet have no protection against compelled statements. They also have other constitutional rights, including federal due process rights and the right to effective assistance of counsel.

But what do these rights mean for your corporate clients when they are facing government search, seizure of documents and interrogation of employees? Does it matter that the search and seizure is pursuant to administrative authority or under a search warrant? Does it make a difference if the person making the potentially incriminating statement is an employee or former employee or if the statement is contained in a corporate document? Does it make a difference if the document is attorney-client privileged or if the person who possesses the document could be personally incriminated by his or her admission that the document exists? And, if your corporate clients have constitutional rights to be free from unreasonable search and seizure, to due process and to effective assistance of counsel, what are the implications of asserting them?

The Right to Be Free from Unreasonable Searches and Seizures

Unlike the Fifth Amendment privilege against compulsory self-incrimination (discussed below), the right to be free from unreasonable searches and seizures unquestionably extends to corporations like Clean Co. This right is protected by article I section 9 of the Oregon Constitution [1] and the Fourth Amendment of the U.S. Constitution.[2] Article I, section 9 and the Fourth Amendment protect against government violations of privacy interests, including a business’s or person’s privacy interest in business property.[3] These rights mean that the government cannot make unreasonable searches or seizures of a person’s property, including a business’s property, unless the person has abandoned his or her privacy interest in the area or object of the search or seizure (article I, section 9) or does not have a reasonable expectation of privacy in the area or object of the search or seizure (Fourth Amendment). Unless an exception to the warrant requirement applies (as will be discussed below), a search or seizure of an area or object in which a person has a privacy interest is presumed unreasonable.[4] Thus, absent an exception to the warrant requirement, a government agent cannot enter (search) or “secure” (seize) a business premises from which the public is generally excluded without consent.[5] Such an intrusion would violate the article I, section 9 and Fourth Amendment rights of any person with a privacy interest in the premises.[6]

Even for a Routine Administrative Inspection, if the Government Does not Obtain Consent and the Search Does Not Fall Under the “Pervasively Regulated Industry” Exception, the Government Must Obtain a Valid Warrant

Article I, section 9 and the Fourth Amendment prohibitions against unreasonable searches apply to administrative searches of regulated businesses.[7] Administrative searches are searches conducted pursuant to a regulatory or statutory scheme. The government can conduct an administrative search without a warrant if it obtains valid consent or the “pervasively regulated industry” exception applies. Otherwise, article I, section 9 and the Fourth Amendment require a valid warrant. However, the government’s administrative search power (with or without a warrant) does not authorize it, absent consent, to question employees in the course of the search.[8]

Under both article I, section 9 and Fourth Amendment jurisprudence, legislative schemes that authorize warrantless administrative searches of businesses that are pervasively regulated may be reasonable.[9] A warrantless search is reasonable when: (1) a substantial government interest informs the regulatory scheme pursuant to which the search is made; (2) the warrantless search is necessary to further the regulatory scheme; and (3) the certainty and regularity of the statute’s or regulation’s inspection program provides a constitutionally adequate substitute for a warrant.[10] Accordingly, if the regulatory scheme under which DEQ may proceed with an administrative search without a warrant or consent – assuming the search constitutes an administrative search.[11] But, regardless of how detailed, complex and important the regulatory scheme is, if it does not provide for nondiscretionary routine inspections that are limited in scope you should argue that it is not a constitutionally adequate substitute for a warrant.[12] And, even if the inspection goes forward, its scope may not exceed the bounds of the regulatory scheme under which it is conducted.

To obtain an administrative search warrant, the agency need not satisfy the probable cause standard applicable to non-administrative warrants (i.e., specific knowledge that Clean Co, has committed an offense or that Clean Co.’s property contains evidence of an offense). Instead, the agency can obtain an administrative search warrant when the particular needs of the search outweigh the invasion.[13] In practice, this has meant that an administrative search warrant may issue when the search is pursuant to “reasonable legislative or administrative standards”[14] (e.g., the DEQ inspection is pursuant to a regulatory and statutory scheme that provides for such inspections). The legislative or administrative standards must be specified in the warrant. And, because the scope of the search is limited to the specific administrative or statutory scheme under which the government is operating, a nexus must exist between the place or places to be searched and the administrative or statutory authority. This means that, if DEQ’s statutory and regulatory scheme provide for routine inspections of paperwork related to the use and disposal of dry cleaning chemicals in Oregon, it would be a violation of Clean Co.’s article I, section 9 and Fourth Amendment Rights for DEQ to use and administrative search warrant to inspect Clean Co.’s records related to out-of-state use and disposal of dry cleaning chemicals.

But Beware Parallel Criminal Investigations – the Government May Not Avail Itself of the Lesser Administrative Standard when a Purpose or Consequence of the Search is the Gathering of Evidence of a Crime (Article I, Section 9) or when the Administrative Investigation Is Used Improperly to Gather Evidence for a Criminal Investigation (Fourth Amendment).

Clean Co. may be inclined to consent to DEQ’s search – the agents may have told Clean Co. that they can easily obtain an administrative warrant, they don’t need on because dry cleaners are pervasively regulated, consenting to the search will benefit Clean Co. in any enforcement actions, and failure to consent will result in civil sanctions.[15] However, before granting consent, and thereby waiving its article I, section 9 and Fourth Amendment rights, Clean Co., should carefully consider the ramifications of the waiver. If Clean Co. asserts its rights, the government will be forced to get a warrant. Clean Co. can then subject the agency’s actions – including the warrant, its supporting affidavit, and the execution of the warrant – to the rigor of the constitutional standards. Holding the agency to these standards may be especially important when the company is potentially facing criminal as well as civil enforcement.

Moreover, the Oregon constitution requires a showing of individualized suspicion of wrongdoing (i.e., traditional probable cause) to support a search to gather evidence for a criminal prosecution, even when the search is conducted pursuant to a statutory or regulatory scheme.[16] A series of Oregon cases addressing sobriety checkpoints provide that a search is not “administrative” in nature if the purpose of the search is to gather evidence of a crime or the consequences of the search are criminal sanctions.[17] This suggests that when a parallel criminal investigation is ongoing, or the civil or regulatory investigators are sharing or will share information criminal law enforcement, an otherwise administrative search may be invalid under article 1, section 9 absent a warrant based on traditional probable cause.[18] The government may or may not be able to meet this higher burden.

Unlike article I, section 9, the Fourth Amendment allows use of the lower administrative standards even when the evidence may be used for a criminal prosecution unless the administrative investigation is a pretext for a criminal investigation, the civil investigation is actually being controlled by the criminal investigation, or the government is improperly using the administrative investigation to gather evidence for a criminal investigation.[19]

Here – assuming a purpose or consequence of the search is furtherance of a criminal investigation – a warrantless search or search based on the lower administrative standard would violate Clean Co.’s article I, section 9 rights. Accordingly, as long as Clean Co. does not waive those rights, the search would be unlawful and its fruits subject to supersession, without regard to the Fourth Amendment analysis.

The Right Against Compulsory Self-Incrimination

Article I, section 12 of the Oregon constitution and the Fifth Amendment to the U.S. Constitution[20] establish a constitutional right for individuals – and not corporations – to be free from compulsory self-incrimination.[21] This right applies to any type of judicial or nonjudicial procedure in the course of which the state seeks to compel testimony that may be used, or may lead to evidence that may be used, against the witness in a criminal prosecution.[22]

Because the state and federal constitutional right to be free from compulsory self-incrimination is available only to natural persons, Clean Co. cannot invoke it to avoid answering interrogatories even when the answers will incriminate the corporations.[23] Likewise, Clean Co. has no constitutional right to refuse to produce documents even when the contents of the documents or the act of producing them in incriminatory.[24] And, because the right is personal in nature, Clean. Co. cannot assert it on behalf of its employees or former employees and Clean Co.’s employees cannot assert it on behalf of Clean Co.[25] In other words, neither a corporation nor its employees may use article I, section 9 or the Fifth Amendment to avoid incriminating the corporation. Accordingly, Clean Co. has no article I, section 9 or Fifth Amendment privilege against producing the consultant’s report in response to a valid request for production or inspection.

As Distinct from the Corporation, Custodians of Corporate Records Have – at a Minimum – Immunity from Evidentiary Use Against Them Personally of their Individual Acts of Producing Corporate Records.

Oregon courts have not addressed the extent to which article I, section 12 protects custodians of corporate records[26] from individual incrimination through compelled production of those records. Under the Fifth Amendment “collective entity rule,” the government can compel corporate employees in capacity as agents of a corporation to produce corporate records even when the contents of the records or the act of production will incriminate the employees individually, but the government may not make evidentiary use of the individual act of production against the custodian.[27] Likewise, a custodian’s sworn statement that he or she does not possess the records may also be compelled, but the statement, like the act of production, cannot be used against the custodian individually.[28 ]Additionally, following the agency rationale underlying the act of production cases, a custodian may be compelled to identify and authenticate by oral testimony the records that she or he has produced, but such testimony cannot be used against the custodian individually.[29] Accordingly, the Fifth Amendment protects current employees from evidentiary use against them personally of their acts of production of corporate records.[30]

The Oregon courts, when confronted with a corporate custodian’s article I, section 12 challenge, may develop an independent analysis.[31] At least one other state has interpreted its state constitutional privilege against compulsory self-incrimination as protecting the custodian’s right to refuse to produce the records at all, while, at the same time, not relieving corporations of their duty to produce records (for example, through appointment of an alternative custodian).[32]

Both Article I, Section 12 and the Fifth Amendment Provide Employees with a Privilege Against Compelled Sworn Testimony (and Immunize their Individual Acts of Production) that Would Incriminate the Employee Personally.

With the exception of the federal jurisprudence regarding authentication of produced documents and nonpossession statements, article I, section 12 and the Fifth Amendment provide protection against compelled sworn testimony that would incriminate the witness personally.[33] Therefore, when faced with a subpoena to provide oral testimony or answers to interrogatories, a corporate employee must assert his or her personal Oregon and U.S. constitutional rights against compelled self-incrimination or risk waiving them.

Former Employees Have Both and Article I, Section 12 and Fifth Amendment Privilege Against Compulsory Production of Documents that Would Be Self-Incriminating

Under Ninth Circuit precedent, the agency rationale of the Fifth Amendment collective entity rule does not apply to former employees – i.e., because former employees are no longer acting as agents of the corporation, their actions are attributable to the former employees individually. Consequently, a former employee may have personal article I, section 12 and Fifth Amendment privileges with respect to corporate records that remain in his or her possession or control and may refuse to produce them pursuant to a subpoena to the corporation or the individual.

Although no Fifth Amendment or article I, section 12 privilege applies to the contents of records that were created voluntarily,[34] the privilege does apply to the act of production itself because that act may communicate the individuals belief that the requested records exist, the individual possesses them, and they are authentic. Ninth Circuit cases hold that, unless the existence, location and authenticity of the records is a “foregone conclusion,” the former employee’s act of producing the records is attributable to the former employee only, is testimonial in nature and cannot be compelled.[35] Accordingly, Clean Co.’s ex-CEO, in response to a valid subpoena issued to the corporation or the individual, could claim a Fifth Amendment and article I, section 12 privilege against compulsory production of the records in her possession (unless the government can show their existence, location and authenticity is a foregone conclusion).

The Right to Be Free from Unlawful Government Intrusions on the Attorney-Client Relationship

Both the Fifth Amendment Due Process Clause and the Sixth Amendment right to effective assistance of counsel protect the right to be free from unlawful government intrusions on the attorney-client relationship.[36] These federal constitutional rights extend to corporations.[37]Accordingly, a request for documents that includes “all” documents, with no exception for attorney-client privileged communications, may violate a corporation’s Fifth and Sixth Amendment rights.[38] Likewise, an administrative search (even pursuant to a regulatory scheme that includes authority to seize documents) would also violate these rights if the search and seizure unlawfully intrudes on the corporation’s attorney-client relationship. Therefore, in response to the request for documents and administrative search, Clean Co. must assert or risk waiver of its constitutional rights (and other privileges) by refusing to produce any attorney-client privileged document and should also take steps to protect its attorney-client privileged documents from seizure during the course of the inspection. If DEQ nevertheless seizers the legal opinion, the violation of Clean Co.’s Fifth and Sixth Amendment rights will provide a basis for suppression of the document and may even require dismissal of the regulatory action.[39]

Practice Tips

Given the risks that flow from civil and regulatory investigations, you need to understand fully the protections available to preserve your clients’ constitutional and other rights. You should also be aware of when your corporate clients’ rights and duties may conflict with the rights of employees and former employees. To avoid such conflicts, you may counsel your corporate clients to designate document custodians who have no independent criminal liability. When such designation is not possible, the safest option is probably to obtain separate counsel for the employee while counseling the corporation on its rights and duties with respect to the production of corporate records. You should advise corporate clients to clearly mark all attorney-client confidential materials.

When you represent a client in a civil or regulatory investigation, it is important to investigate whether a parallel criminal investigation is ongoing likely. You may start by simply asking the civil or regulatory investigators if they are working with criminal enforcement authorities and contacting the prosecutors with jurisdiction. But, to fully understand your client’s rights and risks, you must thoroughly evaluate the applicable facts and law of the client’s case to determine if they might give rise to criminal charges. If so, you must assume a parallel criminal investigation is likely and take steps to analyze and protect your client’s constitutional rights.

 

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[1] Article I, section 9 provides:

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probably cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

See also ORS 133.545 et seq. (limiting state’s ability to search or seize persons or places).

[2] The Fourth Amendments provides:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

[3] State v. Rivas, 100 Or. App. 620, 623, 788 P.2d 464 (1990); Hale v. Henkel, 201 U.S. 43 (1906). You should be aware that the protections afforded by ORS 13.545 et seq., article I, section 9 and the Fourth Amendment, while similar, are not identical. State v. Caraher, 293 Or. 741, 756, 653 P.2d 942 (Or. 1982) (en banc) (“citizens of Oregon are entitled to an analysis of the protections afforded by the Oregon constitution independent of the United States Constitution”). So, when bother Oregon and U.S. constitutional rights are implicated – e.g., when a state agency or police officer conducts the search or seizure at issue – you must evaluate possible violations of you client’s rights in the following order: (1) state statutory rights, (2) article I, section 9 rights, and finally (3) Fourth Amendment rights.

[4] State v. Miller, 269 Or. 328, 334, 524, p.2d 1399 (Or. 1974); Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971). But see California v. Acevedo, 500 U.S. 565, 581 (1991) (Scalia, J., concurring) (observing that “warrant requirement ha[s] become so riddled with exceptions that it [i]s basically unrecognizable”).

[5] Marshall v. Barlow’s Inc., 436 U.S. 307, 311 (1977); G.M. Leasing Corp.v. United States, 429 U.S. 338, 352-359 (1977) (warrant requirements applicable to individuals apply when commercial property is searched for contraband or evidence of crime).

[6] Rivas, 100 Or. App. At 623-24 (warrantless search of restaurant kitchen violated Art. I sect. 9 privacy interest of employee working in kitchen); State v. Tanner, 304 Or. 312, 321, 745 P.2d 757 (Or. 1987) (entrustment of stolen video tape to third party established Art. I, sect. 9 privacy interest that was violated when tape was discovered through unlawful search of third party’s residence even though defendant did not control access to residence. To establish a Fourth Amendment privacy interest, a person would have to sow that he or she personally had an expectation of privacy in the place searched based on concepts of real or personal property or understandings recognized or permitted by society. Minnesota v. Carter, 525 U.S. 83 (1998) (short time visitor to apartment had no privacy interest in apartment). Unlike the article I, section 9 privacy interest may not include an interest in a place over which the person has no control. Rawlings v. Kentucky, 448 U.S. 98, 105 (1980) (placing drugs in third party’s purse did not establish Fourth Amendment privacy interest in part because defendant did not control access to purse); but see United States v. Johns, 707 F.2d 1093, 1100 (stating that power to exclude others is not determinative of Fourth Amendment privacy interest) (9^th Cir 1983), rev’d on other grounds, 469 U.S. 478 (1985).

[7] State v. Boyanovsky, 304 Or. 131, 133-34. 743 P.2d 711 (Or. 1987) (article I, section 9 applies to purportedly “administrative” sobriety checkpoint searches); Marshall, 436 U.S. 307 (1978); See v. City of Seattle, 387 U.S. 541 (1967).

[8] Seem e.g., ORS 459.385 (authorizing DEQ to enter premises, access and copy records, and take samples; not authorizing interrogations); ORS 466.195 (same). As discussed below, employees, even in their corporate capacity, have article I, section 12 and Fifth Amendment rights to be free from compelled oral statements that would be personally incriminating.

[9] United States v, Biswell, 406 U.S. 311 (1972) (upholding constitutionality of warrantless search of pawn show owner’s locked gun storeroom pursuant to Federal Gun Control Act); State v. Westside Fish Co., 31 Or. App. 299, 570 P.2d 401 (Or. App. 1977) (approving of Biswell and upholding under article I, section 9 Fish and Game Commission warrantless search of premises of licensed fish canner and wholesale fish dealer pursuant to statutory investigatory powers). See also Colonnade Catering Corp. v. United States, 397 U.S. 72 (1969) (liquor industry is pervasively regulated); Donovan v. Dewey, 452 U.S. 594 (1981) (mining industry is pervasively regulated).

[10] New York v. Burger, 482 U.S. 691, 702-03 (1987); State v. Saunders, 103 Or. App. 488, 493-94, 799 P.2d 159 (Or. App. 1990) (analyzing lawfulness under article I, section 9 based on factors articulated in Burger); see also Biswell, 406 U.S. at 316 (articulating different factors that emphasize importance and pervasiveness of regulatory scheme); Westside Fish Co., 31 Or. App. At 302 (following Biswell).

[11] Under article I, section 9 jurisprudence, if the consequences of the search are criminal sanctions the search may not be ‘administrative’ in nature regardless of whether it is purportedly conducted pursuant to a statutory or regulatory scheme. See cases discussed as notes 16 and 17 below.

[12] See Saunders, 103 Or, App at 493-94 (holding warrantless search unconstitutional under article I, section 9 when statutory scheme did not provide specifically for routine inspections that are limited in scope).

[13] Camara v. Municipal Court, 387 U.S. 523 (1967) (lower probably cause standard reasonable for administrative searches pursuant to municipal housing code); State Accident Prevention Division of Worker’s Compensation Board v. Foser, 31 Or. App. 251, 258, 570 P.2d 398 (1977) (approving of Camara and adopting a “a sliding scale of evidence/probably cause” for analysis of administrative searches under article I, section 9).

[14] State Accident Prevention, 31 Or. App. At 257.

[15] Civil and regulatory inducements to waive constitutional rights are common. See, e.g., ORS 465.503 (exemption from action to compel removal not available to dry cleaning operator who denies government agency access to premises); Memorandum form Larry D. Thompson, Deputy Attorney General, or Principles of Federal prosecutions of Business Organizations, to Heads of Department Components, United States Attorneys (Jan. 20, 2003), available at http://www.usdoj.gov/dag.cftf/corporate­_guidelines.htm (cooperation is primary factor in determining whether or not to do criminal referral or initiate criminal investigation).

[16] See, e.g., State v. Boyanovsky, 304 Or. 131, 133-34, 743 P.2de 711 (Or. 1987); see also Saunders, 103 Or. App. At 493-94 (article I, section 9 requires warrant be based on probable cause when purpose of criminal violation of commercial fishing laws); Commonwealth v. Frodma, 436 N.E.2d 925 (Sup. Jud. Ct. Mass. 1982) (search with “presupposition of criminal activity” using administrative search warrant issued on lesser probable cause standard would be “fatally flawed”).

[17] See, e.g., Nelson v. Lane County, 304 Or. 97, 11, 104, 743 P.2d 692 (1987).

[18] Parallel investigations are common and are not, in and of themselves, unlawful. See United States v. KordelI, 397 U.S. 1, 11 (1970); SEC v. Dresser Indus., Inc. 628 F.2d 1368 (D.C. Cir. 1980) (en banc).

[19] Impropriety in the administrative investigation includes affirmative misrepresentations, deceit, or trickery about the status of the investigation. See United States v. Stringer, 408 F. Supp. 2d 1083, 1092 (D. Or. 2006) (dismissing indictment largely on basis of active deception regarding criminal investigation); Abel v. United States, 362 U.S. 217 (1960) (deliberate use of administrative search warrant to gather evidence for criminal case “must meet stern resistance by courts”); United States v. Bulacan, 156 F.3d 963, 967-74 (9^th Cir 1998) (suppressing evidence because purported administrative search had impermissible criminal investigative purpose). See also United States v. Knights, 219 F.3d 1138, 1141 (9^th Cir. 2000) (legality of probation searches dependent on whether search was true probation search or criminal investigation for law enforcement).

[20] Article I, section 12, of the Oregon constitution provides, in part, that “No person shall… be compelled in any criminal prosecution to testify against himself.” The Fifth Amendment provides, in part, that [n]o person…shall be compelled in any criminal case to be a witness against himself.”

[21] State ex rel. Juvenile Dept. of Lincoln County v. Cook, 138 Or. App. 401, 407, 909, P.2d 202 (Or. App. 1996) (observing article I, section 12 and Fifth Amendment may be effectively invoked or waived only by individual holding those rights); Hale, 201 U.S. 43.

[22] State v. Langan, 718 P.2d 719, 722 (Or. 1986); Kastigar v. United States, 406 U.S. 441, 444-45 (1972).

[23] See Kordel, 397 US at 9. However, because individuals have a right not to incriminate themselves in compelled sworn statements, even those made in their capacity as corporate employees, when no authorized person at a corporation can answer interrogatories addressed to the corporation without personally incriminating themselves, the appropriate remedy is a protective order postponing the civil discovery until termination of the criminal action. Id.

[24] Braswell v. United States, 487 US 99, 109-10 (1988). Keep in mind that not only the content of documents, but also the act of producing documents, may have incriminating testimonial significance – for example, compliance with a subpoena may tacitly concede the existence of the documents demanded, their possession or control by the individual or entity producing them, and the producing individual’s or entity’s belief that the papers are those described in the subpoena. See United States v. Doe, 465 U.S. at 613, n. 11.

[25] Cook, 138 Or. App. At 407; United States v. Darwin Const. Co., 873 F.2d 750 (4^th Cir. 1989).

[26] A “custodian of corporate records” is any agent of the corporation who under ordinary principles of corporate law has custody or control over corporate documents. In re Sealed Case, 877 F.2d 83, 86 (D.C. Cir. 1989).

[27] Braswell, 487 U.S. at 109-10, 118. Note that the availability of the Fifth Amendment privilege against production does not hinge on whether the subpoena is addressed to the corporation or the custodian. Dreier v. United States, 221 U.S. 394, 400 (1911); Braswell, 487 U.S. at 109-10.

[28] United States v. Lawn Builders of New England, Inc., 856 F.2d 388, 394 (1^st Cir. 1988); United States v. O’Henry’s Film Works, Inc. 598 F.2d 313, 318 (2d Cir. 1979).

[29] In re Grand Jury Proceedings (John Doe Co., Inc.),838 F.2d 624, 626 st Cir. 1988). The rationale behind such compelled oral testimony is that, because the act of producing the records is a representation that the documents are those demanded by the subpoena, oral identification merely makes explicit what is implicit in the production.

[30] Note that article I, section 12 requires transactional immunity as a substitute for the right not to testify against oneself. See State v. Soriano, 68 Or. App. 642, 662-63 (holding that use and derivative use immunity does not clearly protect against non-evidentiary and evidentiary use of immunized testimony and therefore cannot substitute for right not to testify against oneself), aff’d, 298 Or. 392, 693 P.2d 26 (Or. 1984).

[31] The Oregon bill of rights is not derivative of the federal bill of rights, and, even if it were, Oregon is not bound to apply federal bill of rights precedence to the Oregon bill of rights. Caraher, 293 Or. At 756; Soriano, 68 Or. App. At 645-46.

[32] See Matter of John Doe Grand Jury Investigation, 418 Mass. 549, 637 N.E.2d 858 (Mass. 1994).

[33] While no Oregon cases address the sworn testimony of corporate representatives, it is well-established under Oregon law that the right against compelled self-incrimination is not self-executing – i.e., failure of the witness to assert the privilege is a waiver. State v. Tensbusch, 886 P.2d 1077 (Or. App. 1994); see also Kordel, 397 U.S. at 7-8 (employee has individual Fifth Amendment privilege against compelled incriminatory answers to interrogatories).

[34] See United States v. Doe, 465 U.S. 605, 611-12 (1984) (“‘[T]he Fifth Amendment would not be violated by the fact alone that the papers on their face might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications.’” (quoting Fisher v. United States, 425 U.S. 391, 409-10 (1976)). Doe concluded that the contents of the taxpayer’s documents were not privileged absent a showing that the owner “prepared the documents involuntarily or that the subpoena would force him to restate, repeat, or affirm the truth of their contents.” Id. (footnotes omitted). State v. Jancsek, 302 Or. 270, 284-85, 730 P.2d 14 (letter that was voluntarily created and non-privileged could not be compelled). Note that Jancsek expressly did not address whether the contents of a voluntarily created , but privileged against compulsory production under article I, section 12. Id. at 285, n.8.

[35] In re Grand Jury Subpoena, dated April 18, 2003, 383 F.3d 905, 910-13 (9^th Cir. 2004); In re Grand Jury Proceedings (Mora), 71 F.3d 723, 724 (9^th Cir. 1995); see also In re Grand Jury Subpoenas Duces Tecum, dated June 13, 1983 and June 22, 1983, 722 F.2d 981, 986-87 (2d Cir. 1983). Oregon courts have not addressed the “foregone conclusion rule.”

[36] Weatherford v. Bursey, 429 U.S. 545 (1977) (government intrusion on attorney-client relationship seriously undermines defendant’s Sixth Amendment right to counsel that in necessary for effective legal representation and fair trial); United States v. Fortna, 796 F.2d 724, 731, 732 (5^th Cir.0, cert. denied, 479 U.S. 950 (1986) (government violates Fifth Amendment due process rights when it tramples on attorney-client relationship by obtaining confidentiality attorney-client communications and using information therein to defendant’s detriment).

[37] Noble v. Union River Logging R. Co., 147 U.S. 165, 176 (1893) (recognizing Fifth Amendment due process right of corporation); United States v. Rad-O-Lite of Philadelphia, Inc., 612 F.2d 740, 743 (3d cir. 1979) (recognizing Sixth Amendment right to effective assistance of counsel applies to corporations). The Oregon constitution does not have a due process clause and no Oregon cases have recognized a corporation’s right to effective assistance of counsel under article I, section 11.

[38] Note that the Sixth Amendment right does not attach until “at or after the initiation of adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” United States v. Gouveia, 467 U.S. 180, 188-89 (1984).

[39] See United States v. Marshank, 777 F. Supp. 1507, 1521-22 (N.D. Cal. 1991) (observing that suppression is the appropriate remedy for Fifth Amendment violation except when continuing prejudice from violation cannot be remedied by suppression).

While most attorneys assume that their notes from client and witness interviews, as well as their mental impressions and resulting work product, will be protected from disclosure in all circumstances, counsel must take care to ensure client confidences and secrets are adequately protected in the face of a subpoena.[1]

Numerous scenarios can arise where counsel is served with a subpoena to produce a client file, or to even testify regarding a client’s confidential information. Employees, consulting experts, and other professionals retained by counsel, including accountants and public relations firms, may also be subpoenaed for client information. For example, counsel may be subpoenaed to testify regarding the state of mind of a client when a contract is signed or to detail what was said at a meeting between business partners. When a subpoena is issued relating to confidences of a current client, the attorney is in a particularly difficult position because compliance with the subpoena may result in the attorney becoming a witness against her client and the potential destruction of the attorney-client relationship.[2] The following article reflects some of the significant obstacles counsel may face and the best strategies for protecting the client information in these circumstances.

If served with a subpoena for a client’s confidential information there are a few steps an attorney should initially undertake. An Oregon attorney should first contact the Professional Liability Fund (PLF). Under current PLF policies, the PLF will provide a consultation for attorneys who have received subpoenas to testify or to provide client files relating to former or current clients. Additionally, an attorney should immediately contact the client to determine whether the client provides consent to the disclosure or whether they desire the confidences to be maintained. Assuming confidentiality is desired, both the attorney and the client may separately move to quash the subpoena, with the client as intervenor in the matter.

The question then becomes how to best protect the client’s confidences and secrets in the face of a subpoena. The first part of this article outlines the attorney’s ethical duty to make all non-frivolous arguments in opposing a subpoena for client confidences, the second part highlights the best legal strategies for prevailing on a motion to quash a subpoena for client confidences, and in conclusion we offer several practical tips for maintaining client confidentiality during the representation so as to have the strongest legal arguments if faced with subpoena for client confidences and secrets.

Attorney’s Ethical Duty to Oppose Subpoenas for Client Confidences and Secrets

At the outset, it’s important to review the Oregon ethical duties relating to client confidences and secrets. The duty to protect “confidences and secrets” of the client is one of the most important duties a lawyer owes to a client. It is so important that it has been engrafted into both the Oregon Revised Statutes and the Oregon Rules of Professional Conduct. ORS 9.460(5) provides that an attorney shall “[m]aintain inviolate the confidence, and at every peril to the attorney, preserve the secrets of the clients of the attorney[.]”

Under ORPC 1.6, a lawyer must not “reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”[3] The Oregon Supreme Court has adopted a definition to aid in the interpretation of ORPC 1.6 ORPC 1.0(f) provides:

“Information relating to the representation of a client denotes both information protected by the attorney-client privilege under applicable law, and other information gained in a current or former professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.”

Notably, ORPC 1.0(f) encompasses both information protected by the attorney-client privilege (client confidence), as well as any other client information that the client has requested to be kept confidential and of which disclosure would negatively impact the client (client secrets). Thus, the duty to protect information provided to an attorney extends beyond information protected by the attorney-client privilege, and in fact has been interpreted very broadly by the Oregon Supreme Court to include information to the public record.[4] The Oregon Supreme Court saw fit to provide specifically that this duty encompasses “other information gained in a… professional relationship that the client has requested to be held inviolate or the disclosure of which… would be likely to be detrimental the client.” An attorney would therefore violate ORPC 1.6 and 1.0(f) if he or she disclosed this information without the client’s consent.

Accordingly, when faced with a subpoena that requires disclosure of client confidences, an attorney has an ethical obligation to limit the subpoena on all available grounds and may not reveal a broad range of information relating to the representation of a client until ordered to do so by a court of appropriate tribunal.[5]

Legal Strategies for Prevailing on Motion to Quash Subpoena

Attorneys typically have several legal bases for opposing a subpoena for client confidences. In addition to relying on the ethical rules prohibiting the disclosure of client secrets, an attorney should also assert attorney-client privilege and work-product protections as appropriate when moving to quash.[6] In arguing that materials or testimony sought are protected by the relevant privilege, protection or ethical rule, counsel may need to request in camera review of any underlying documents and attorney affidavits for the judge to make any necessary factual determinations regarding the claims of confidentiality.[7] In camera review does not waive any privilege or protection.[8]
Of course, an attorney will be most likely to prevail in quashing a subpoena when all client confidences have been maintained to the greatest degree possible throughout the representation; however, an effective advocate must be prepared to present the strongest legal arguments for maintaining confidentiality. To review the basic legal doctrines protecting client confidences, attorney-client privilege protects confidential communications between attorney and client made in order to obtain legal assistance.[9] In Oregon, attorney-client privilege is established by Rule 503 of the Oregon Evidence Code, while the federal rule is grounded in the common law. It is well-established that “voluntary disclosure to a third party waives the attorney-client privilege even if the third party agrees not to disclose the communications to anyone else.”[10] The privilege is not waived, however, by disclosures made between counsel, counsel’s representatives, the client, and client’s representatives.[11]

Work product protection shields from the discovery tangible and intangible materials prepared by a party or a party’s representative in anticipation of litigation.[12] The doctrine encompasses “documents and tangible things” and “opinions and impressions” of attorneys and their representatives.[13] Indeed, because intangible work product often includes attorney opinions, impressions, legal theories and conclusions, it is often afforded heightened protection under both Oregon and federal law.[14]

Using Attorney-Client Privilege to Maintain Client Confidences

In many instances, there will be a challenge to the privilege when a third party is present during the communication between counsel and client. In that case, an adversary will argue that what is being sought by subpoena has been voluntarily disclosed to third parties and is therefore not protected by attorney-client privilege. For example, and adversary would argue that the presence of the client’s brother at the client meeting waived attorney-client privilege as to what was discussed at the meeting.

While Rule 503 protects only those communications that the lawyer and the client treat as confidential, the rule and its commentary expressly contemplate that effective representation sometimes requires the inclusion of certain third parties in confidential lawyer-client communications. Specifically, Rule 503 defines “confidential communication” to include those communications between a lawyer and client and other persons “to whom disclosure is in furtherance of the rendition of professional legal services to the client.”[15] The rule’s commentary expressly anticipates that such other persons will include family members, business partners, and others whose presence during the lawyer-client communication may be necessary to further the interest of the client in the consultation with his attorney, especially when the subject matter of the communication is a matter of joint concern with the other person.[16] Note, however that the commentary’s list of person that could be considered necessary to the furtherance of legal services is not exhaustive, and arguments could be made that a wide variety of individuals are necessary to best provide counsel with the information counsel needs to effectively represent the client.

Accordingly, the practitioners should focus on the necessity of the third party’s presence to further the provision of legal services, when arguing that attorney-client privilege has not waived. Business associates, close friends and family are often necessary to further both (1) the lawyers’ receipt of complete information about matters affecting decisions in the representation and (2) the lawyers’ provision of legal advice to the client regarding those decisions. Both these purposes are central to the provision of legal advice. [17]

A similar issue arises when counsel has provided materials containing client confidences to individuals retained by counsel to assist in the furtherance of legal advice, such as accountants, public relations firms and other consulting experts. Adversaries will surely argue that such documents, including drafts of documents ultimately intended for public disclosure, are not privileged. Attorney client privilege, however is held to cover communications made to certain agents of an attorney, including accountants hired to assist in the rendition of legal services. [18] As to such agents, “[w]hat is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.” [19] Accordingly, “[i]nformation provided to an accountant by a client at the behest of his attorney for the purposes of interpretation and analysis is privileged to the extent that is imparted in connection with the legal representation.”[20] This analysis has been extended in other jurisdictions to include communications between counsel and public relations firms, when the public relations firm had been hired by counsel and had a sufficiently close nexus to the attorney’s role in advocating on behalf of the client before a court or other decision-making body.[21]

Using Work-Product Protection to Maintain Client Confidences and Secrets

While attorney-client privilege provides an absolute privilege against disclosure and work-product protection can be overcome by a showing of necessity in some instances, work-product protection can still be used to protect client confidences when attorney-client privilege has been waived by disclosure to third parties.[22] Work-product protection exists not to protect client confidences, as does the attorney-client privilege, but to support the fundamental adversarial nature of our legal system – in other words, one party should not benefit from the work product of another.[23] Because the doctrinal basis for work-product protection differs from that for the attorney-client privilege, work-product protection is not compromised by disclosure to third parties “unless the [disclosure] has substantially increased the opportunities for potential adversaries to obtain the information.”[24]

Attorneys will rarely provide tangible work product directly to adversaries. The closer question becomes when an attorney has provided materials related to client confidences to a third party and whether that disclosure has made it more likely for a potential adversary to obtain the information.

For example, courts have split on whether materials prepared in anticipation of litigation, but provided to independent auditors to assess litigation risk, waives the work-product protection. In Medinol Ltd. v. Boston Scientific Group, the court found that work-product protection for board minutes discussing outside counsel’s internal investigation had been waived by the disclosure to auditors because the auditor necessarily performed an independent watchdog function, and then therefore no common interest existed between the auditor and company.[25] Conversely, in Merrill Lynch & Co., Inc. v. Allegheny Energy, Inc., the court found that disclosure of internal investigative reports to an independent auditor did not waive work-product protection because the auditor was not an adversary or conduit to a potential adversary.[26] the Allegheny court noted the different outcome in Medinol and explained that Medinol turned on the fact that there was no pertinent litigation purpose in providing the board minutes to the auditor.[27] The Allegheny court rejected this approach, and held that no common litigation purpose between the client and the third party was needed, but instead it was enough that “they both seek to prevent, detect, and root out corporate fraud.”[28] Notably, the Allegheny court also explained that the auditor was under an ethical and professional obligation to maintain confidentiality, and therefore was little likelihood that the material would be disclosed to a true litigation adversary.[29] Accordingly, when arguing that providing tangible work product to a third party has not waived work-product protection, counsel should focus on any common interest between the client and the third party and the facts surrounding the disclosure, including whether any confidentiality agreement was entered into or was required under the professional standards of the third party.

The subpoena for counsel to testify as a witness against a client is particularly troublesome, yet there are strong defenses to such a subpoena. Work-product doctrine can be used as a basis to object to any subpoena which would require an attorney to testify regarding her recollection of what was said at a meeting that she attended as a legal advisor. The Supreme Court has pointedly discussed the inappropriateness of turning counsel into a fact witness. As explained in Hickman, the work-product privilege safeguards, among other things, “personal recollections… formed by an adverse party’s counsel in the course of his legal duties.”[30] The Supreme Court has observed that “not even the most liberal of discovery theories can justify unwarranted inquires into the files and the mental impressions of an attorney…”[31] As the Hickman Court recognized, forcing an attorney to disclose his recollection of oral statements is disfavored because the impressions are so influenced by the attorney’s role that his memory may be inaccurate:

“[A]s to oral statements made by witnesses to [the attorney]…, whether presently in the form of his mental impressions or memoranda, we do not believe that any showing of necessity can be made under the circumstances of this case so as to justify production. Under ordinary conditions, forcing an attorney to repeat or write out all that witnesses have told him and to deliver the account to his adversary gives rise to grave dangers of inaccuracy and untrustworthiness. No legitimate purpose is served by such production. The practice forces the attorney to testify as to what he remembers or what he saw fit to write down regarding witnesses’ remarks. Such testimony could not qualify as evidence; and to use it for impeachment or corroborative purposes would make the attorney much less an officer of the court and much more an ordinary witness. The standards of the profession would thereby suffer.”[32]

Further, forcing counsel to play the role as witness interferes with counsel’s role as officer of the court, Accordingly, practitioners should zealously defend against such a subpoena and argue that the facts an attorney would be called upon to testify to regarding any client meeting or witness interview are inextricably linked with her mental impressions and other work performed in her role as counsel, and are therefore protected work product.

Using Ethical Rules to Maintain Client Confidences and Secrets

Notably, however, an attorney facing a subpoena for client confidences should not abandon opposition to the subpoena because the client has disclosed the confidences to third parties inconsistent with maintaining attorney-client privilege or work-product protection. A client’s disclosure of the secrets to others does not waive his counsel’s independent duty to preserve those secrets. ORPC 1.6 offers a broader and different protection of confidential communication that does the evidentiary rule of privilege.[33] Waiver or inapplicability of the privilege does not allow the lawyer to disclose other client information that the client has asked be kept secret or that would embarrass or injure the client if revealed.[34]

The Oregon Supreme Court has been consistent in interpreting a lawyer’s obligation to maintain confidential information very broadly. In In re A., the Oregon Supreme Court held that information about a person’s death, while available in the public record, was nevertheless a secret of the client when the disclosure of the information would prejudice the client.[35] Thus, even public information can fall within the duty under ORPC 1.6 and ORS 9.460(5) under some circumstances. Therefore, any argument that the presence of third parties somehow takes the information shared by a client to their attorney outside of the attorney’s ethical duty to maintain a client’s confidences should be rebutted if any argument can be made that the disclosure would be prejudicial to the client. As the court noted in In re A., a lawyer’s duty to the court “involves also the steadfast maintenance of the principles which he courts themselves have evolved for the effective administration of justice, one of the most firmly established of which is the preservation undisclosed of the confidences communicated by his clients to the lawyer in his professional capacity.”[36]

Whether a court will find persuasive the argument that ethical rules protect the information sought by an adversary, and therefore any such efforts and compelled disclosure should be rejected, may depend on the context in which the client information is being sought. For example, a pre-existing statutory duty to provide information that is covered as a client secret has been found to trump and ethical rules requiring confidentiality,[37] while a subpoena for an attorney’s testimony has been found to be “unreasonable or oppressive” when compliance with the subpoena would potentially destroy the attorney-client relationship based on the relevant ethical rules.[38]

Practical Strategies for Maintaining Client Confidences and Secrets During the Representation

Of course, the best defense to any subpoena for client confidences is to anticipate that current and future adversaries may seek information that an attorney may presume to be protected, including an attorney’s recollection of client meetings, witness interviews and internal investigation reports. Well-prepared practitioners will implement case management strategies that contemplate the contours of the applicable legal and ethical doctrines related to confidentiality. As practical matter, that means educating the client as to the importance of confidentiality using care when disclosing confidential materials to any third parties, and being aware of the potential for becoming a witness when attending meetings with clients and third parties. Counsel should also clearly define at the outset the purpose behind any third parties’ being present at client meeting and whether materials provide to third parties are for the furtherance of legal advice and are intended to remain confidential.

 

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[1] By way of caveat, this article is not intended to be applied in instances where information is sought in a criminal case by a criminal defendant. In this case the Due Process Clause, Confrontation Clause, compulsory process rights, and other constitutional guarantees may trump other privileges. See Janet Hoffman and Carrie Menikoff, When the Accused Knocks, the Constituional Answers, Litigation Journal, Spring 2007, Vol. 26, No. 1

[2] See In re Bergeson, 425 F.3d 1221, 1226 (9^th Cir. 005) (noting that the district court found that the attorney-client relationship would be destroyed if the attorney were forced to testify at grand jury because the attorney would become a witness against her client in violation of ORPC Rule 3.7).

[3] ORPC 1.6(b) provides:
A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to disclose the intention of the lawyer’s client to commit a crime and the information necessary to prevent the crime;
(2) to prevent reasonably certain death or substantial bodily harm;
(3) to secure legal advice about the lawyer’s compliance with these Rules;
(4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(5) to comply with other law, court order, or as permitted by these Rules; or
(6) to provide the following information in discussions preliminary to the sale of a law practice under Rule 1.17 with respect to each client potentially subject to the transfer: the client’s identity; the identities of any adverse parties; the nature and extent of the legal services involved; and fee and payment information. A potential purchasing lawyer shall have the same responsibilities as the selling lawyer to preserve information relating to the representation of such clients whether or not the sale of the practice closes or the client ultimately consents to representation by the purchasing lawyer.

[4] See Section B.3, below, for further discussion of the Oregon Supreme Court’s broad interpretation of “information relating to the representation of a client.”

[5] See ABA Formal Op. 94-385 (1994); Helen Hierschbiel, Client Information Subpoenas, Oregon State Bar Bulletin, June 2008 (noting that although Oregon has no relevant case law or ethics opinions directly on point “many authorities have concluded that the duty of confidentiality compels lawyers who are faced with a subpoena or request for client information to assert on behalf of the client all non-frivolous claims that the information is protected from disclosure” and it is safe to assume the same is true in Oregon).

[6] Although not the subject of this article, counsel for clients under criminal investigation should additionally assert, as applicable, their client’s state constitutional right to counsel under Article I, section 11 and the related federal constitutional rights under the Fifth, Sixth, and Fourteenth Amendments when moving to Quash a subpoena for client confidences, whether the subpoena stems from civil or criminal proceedings.

[7] Frease v. Glazer, 330 Or.364 (2000) (in camera review is appropriate where the applicability of a privilege or privileges is at issue).

[8] Frease v. Glazer, 330 Or.364 (2000) (stating that in camera review does not destroy privilege).

[9] Fisher v. United States, 425 U.S. 391, 403 (1976), citing 8 J. Wigmore, Evidence § 2292; see also OEC Rule 503.

[10] Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 1427 (3d Cir. 1991); see also OEC Rule 511.

[11] See OEC Rule 503(2)(a)-(e).

[12] See ORCP 36B(3).

[13] See Kirkpatrick, Oregon Evidence, § 503.14[1] (5^th ed. 2007) (work product includes communications in anticipation of litigation whether or not reduced to writing); State v. Bockorny, 125 OR. App. 479, 485-86 (1993) (Bockorny I) (protection applied to attorney’s discussions of opinions and theories), on recons. 126 Or. App. 504 (Bockorny II), rev. den. 319 Or. 150; (1994). See also Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947) (recognizing work-product privilege for memoranda, statements and mental impressions of attorneys); Wright & Miller, Federal Practice and Procedure, § 2024 (2d ed. 1987)(West 2008) (“‘[i]t is clear from Hickman that work product protection extends to both tangible and intangible work product’”) (quoting In re Cendant Corp. Securities Litigation, 343 F.3d 658, 662 (3d Cir. 2003)).

[14] See ORCP 36B(3) (“the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney… concerning the litigation” even when substantial need and undue hardship are shown); Wright & Miller, Federal Practice and Procedure, § 2024 (since intangible work product includes thoughts and recollections of counsel, it is often eligible for the special protection accorded opinion work product).

[15] OEC 50391)(b). The definition in its entirety reads: “Confidential communication means a communication not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” Id.

[16] See OEC Rule 503, comment (“The rule allows some disclosure beyond the immediate circle of lawyer and client their representatives without impair confidentiality, as a practical matter. It permits disclosure to persons to whom disclosure is in furtherance of the rendition of professional legal services to the client, contemplating that these will include a ‘spouse, parent, business associate, or joint client.’”); see also Kevlik v. Goldstein, 724 F.2d 844, 849 (1^st Cir. 1984) (holding that presence of adult defendant’s father in conference between defendant and attorney to provide “support and guidance” was consistent with intent to make communications confidential and therefore did not destroy privilege).

[17] See State v. Jancsek, 302 Or. 270, 274 (1986) (“Lawyers can act effectively only when fully advised of the facts by the parties whom they represent[.]”); State v. Durbin, 335 Or. 183 (2003) (“The purpose of the… privilege ‘is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.’”) (quoting State ex rel OHSU v. Haas, 325 Or. 492, 500 (1997) (quoting Upjohm Co, v. United States, 449 U.S. 383, 389 (1981)).

[18] United States v. Kovel, 296 F.2d 918 (2d Cir. 1961).

[19] Id. at 922.

[20] United States v. Schwimmer, 892 F.2d 237, 243 (2d cir. 1989)

[21] See In re Grand Jury Subpoenas Dated march 24, 2003 Directed to (a) Grand Jury Witness Firm and (b) Grand Jury Witness, 265 F.Supp.2d 321, 326 (S.D.N.Y 2003) (holding that confidential communications between public relations firm and counsel were protected by the attorney-client privilege to the extent that they took place for the purpose of giving or receiving legal advice); but see Calvin Klein Trademark Trust v. Wachner, 124 F.Supp.2d 207 (S.D.N.Y. 2000) (holding that a draft press release and accompanying memo requesting comment from counsel prepared by public relations firm was not expert or legal advice and was, therefore, discoverable).

[22] Note, however, that the majority view is that a non-party to current litigation cannot assert work production in that litigation. See Wright & Miller, Federal Practice and Procedure, § 2024 (Documents prepared for one who is not a party to the present suit are wholly unprotected by Rule 26(b)(3) even though the person may be a party to a closely related lawsuit in which he will be disadvantaged if he must disclose in the present suit.).

[23] See Wright & Miller, Federal Practice and Procedure, § 2024.

[24] Goff v. Harrah’s Operating Co., 240 F.R.D. 659, 661-62 (D. Nev. 2007) (internal quotation marks omitted); see also United States v. MIT, 129 F.3d 681, 687 (1^st Cir. 1997) (stating that “work product protection is provided against ‘adversaries,’ so only disclosing material in a way inconsistent with keeping it from an adversary waives work product protection”).

[25] 214 F.R.D. 113, 116-176 (S.D.N.Y. 2002).

[26] 229 F.R.D. 441 (S.D.N.Y. 2004).

[27] Id. at 446.

[28] Id. at 448.

[29] Id.

[30] Hickman v. Taylor, 329 U.S. 495, 510 (1947).

[31] Id. at 510-11

[32] 329 U.S. at 512-13

[33] See State v. Keenan/Waller, 307 Or. 515, 519 (1989).

[34] See In re Lackey, 333 Or. 215, 227 (22) (stating that “even if the information was no longer privilege because its prior, authorized disclosure… it still could be held a “secret” if the client had requested that it be held inviolate or if the disclosure would be embarrassing or likely be detrimental to the client.”).

[35] 276 Or. 225 (1976).

[36] Id. at 237 n.2.

[37] United States v. Blackman, 2 F.3d 1418 (9^th Cir. 1995).

[38] In re Bergeson, 425 F.3d 1221 (9^th Cir. 2005).