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In re In re Grand Jury Proceedings (FMC Corp.)

Citation: 9 ELR 20553
No. No. 79-1481, 604 F.2d 798/13 ERC 1519/(3d Cir., 07/18/1979)

The crime fraud exception to the attorney-client privilege permits the disclosure of an attorney's work product produced during the continuation of criminal violations of pollution control laws. An attorney for FMC Corp. claimed attorney-client and work product privileges in refusing to produce certain documents subpoenaed by a grand jury investigating allegations that the corporation had made false statements in connection with the illegal discharge of chemicals into the Kanawha River. After an in camera inspection and presentation, the district court directed that the documents be produced, ruling the attorney-client privilege inapplicable because of prima facie evidence that a crime had been committed. The court also determined that the work product privilege does not exempt the documents from disclosure because of the crime fraud exception to the doctrine and the government's showing of substantial need for the documents. The Third Circuit first holds that the corporate client has standing to assert its attorney's work product privilege. On the merits, the Third Circuit notes the overlapping and identical rationales supporting the crime fraud exception to both the attorney-client and work product privileges and finds the crime fraud exception constitutes "good cause" to deny application of the work product doctrine. If the crime was a continuing one or occurred after the attorney was retained, the prima facie showing made by the government in this case is sufficient to defeat the privilege. The Third Circuit remands to the district court, however, for a more specific finding as to when the alleged crime occurred.

Counsel for Appellant FMC Corp.
Thomas A. Bergstrom
1401 Two Penn Center, Philadelphia PA 19102
(215) 569-2444

Counsel for Appellants Douglas E. Kliever and Cleary, Gottlieb, Steen & Hamilton
James D. Crawford, Joseph A. Tate
Schnader, Harrison, Segal & Lewis
1719 Packard Bldg., Philadelphia PA 19102
(215) 988-2000

Counsel for Appellee United States
Walter S. Batty, Jr., William B. Lytton, Ass't U.S. Attorneys; Peter F. Vaira, U.S. Attorney; Jane Barrett McEvoy, Paul Laskow, Spec. Ass't U.S. Attorneys
3310 U.S. Cthse, 601 Market St., Philadelphia PA 19106
(215) 597-2556

Hunter & Garth, JJ., concur