Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
No. 97-1287
No. 97-1382
Petitioner-Appellee, Cross-Appellant,
v.
Respondent-Appellant, Cross-Appellee.
____________________
____________________
Before
____________________
Jeffrey Swope
_____________
Division,
Department
of Justice,
States Attorney,
and
Charles E. Brookhart,
______________________
Tax
Divisi
____________________
the
Massachusetts
attorney-client
Institute
privilege
and
Technology to
work-product
request
by
the
assert
the
doctrine
in
response
to a
Service.
disclosure
document
of
Internal
Revenue
MIT
26
U.S.C.
501(c)(3).
examination of MIT's
qualified for
In
1993,
the IRS
complying with
the reporting of
conducted
provisions relating
MIT still
whether it was
to employment taxes
an
In
and
aid of this
of
the
MIT
Corporation
and
its
executive
and
auditing
committees.
In
response, MIT
client privilege or
to be covered by
requested but
the attorney-
or both.
In
information be
to
-2-2-
Contract
some or all of the minutes sought by the IRS had earlier been
provided
to the audit
agency helps
agency pursuant to
contracts between
entities in
the Department
The audit
of Defense
review
contract performance
to be sure
is not
without the
The audit
the
offered
MIT
disclosure
secret,
some
was
administrative
specific
latter's consent,
documents
which MIT
but its
to
on
minutes
regulations
think
unlikely.
unredacted
declines to
no unconditional promise
reason
summons
provided to it by
The
MIT
in
of nine
that
IRS
and
MIT
give.
to keep
practices
indiscriminate
then
December
meetings
served
an
1994
seeking
of
the MIT
1991,
expenses paid or
When
petitioned
MIT
1, 1990, through
26 U.S.C.
7402(b), 7604(a).
declined to
comply,
-3-3-
the IRS
to enforce the
in
early 1996
summons.
The
district
court
obtained
basis of
briefs,
heard
arguments
and
on the
an affidavit
submitted by MIT.
a memorandum
order
summons
and
enforcing
as to the unredacted
the
IRS
administrative
bills
to
privilege.
the
As
the privilege
agency.
audit
agency forfeited
the
attorney-client
After reviewing
the minutes
to the audit
in camera,
_________
the court
found that
MIT to
had
three contained
privileged material
and ordered
others as unprivileged or
because MIT
by disclosing
the substance
of the
The
district
resolving
legal bills
anticipation of
ordinary
discuss
followed
neither the
26(b)(3).
court
nor the
work
in
trial."
"prepared in
Fed. R.
Civ. P.
business records.
whether
path
minutes were
litigation or for
It ruled that
different
product
-4-4-
protection
was
did not
waived
by
MIT
statements
to
the
privilege; MIT no
the billing
audit
agency
should
not
statements.
The
government has
forfeit
protection for
cross-appealed
the
of the
was on MIT
to prove that the minutes had not been disclosed to the audit
agency.
if the minutes
On
of
review depends
court on
are
issues of law
tested under a
judgments
(1st Cir.
forfeiture
possible in
plenary.
issue.
Rulings by
the district
fact findings
and discretionary
of discretion.
512
on the
1986).
On the
by disclosure--this
posing an
principal issue
case goes
abstract issue of
about
law and
F.2d 509,
before us--
as far
as
review is
The
question
whether
disclosing documents to
any
MIT
forfeited
federal constitutional
provision,
of
an IRS summons
in
not governed by
federal statute,
or
-5-5-
protection
supplies a rule
of decision.
Accordingly, the
scope of the
See
___
MIT's Appeal.
_____________
privilege.
We
begin
with
the
attorney-client
by
(1)
Where legal
sought
(2)
from
advice of any
a
kind is
professional
legal
(3) the
that purpose,
are
at
his
instance
permanently
disclosure by himself
the
protection be waived.
8 J. Wigmore, Evidence
________
The
its
attorney-client privilege
present
communications
rationale
between
is well-established
straightforward:
lawyer
and
client,
by
and
safeguarding
it
encourages
to
See Upjohn Co. v. United States, 449 U.S. 383, 389-90 (1981).
___ __________
_____________
-6-6-
Waiver
issues aside,
the
contours
of
the
privilege
are
reasonably stable.
Quite a different
what is in fact a
one turns
different
problems.
include situations as
surrender
of
the
Cases
under
this
"waiver"
divergent as an express
privilege,
partial
and voluntary
disclosure
disclosure to some
but not
overhearings or
all,
and inadvertent
93, at 341-48
heading
of
outsiders
disclosures.
Even where
deliberate
and
voluntary
communication to someone
the case
mark
circle
limited to those
disclosure
of
"others"
out, although
of
not with
with
involving a
privileged
or client,
perfect
consistency, a
whom information
may
small
be shared
without
loss
interpreters,
of
the
counsel
for
privilege
(e.g.,
____
cooperating
secretaries,
co-defendant,
____________________
F. Supp.
2d ed. 1997).
-7-7-
McLaughlin ed.,
849
representation
closely
vital, to
and that
related persons
a consultation.
F.2d 844,
is functional:
the
client
who are
be
allowed
appropriate,
to
even if
bring
not
F.2d 1414,
1424 (3d
Cir.
1991).
An
is ordinarily
On
the
contrary,
communications
usually
outside this
refused
platitude
where the
to
client
chooses
magic circle,
extend the
the
privilege.2
courts have
The familiar
2291, at 554.
permitted to
while
to share
choose to
withholding them
See Fisher v.
___ ______
disclose materials
from another.
a client is
to one
See, e.g.,
___ ____
outsider
Permian
_______
Corp. v. United States, 665 F.2d 1214, 1221 (D.C. Cir. 1981).
_____
_____________
____________________
-8-8-
93, at 347-48.
Should
disclosed
this
inclination
outside the
circle
agency?
The
This
most common
Exchange
to
apply
protect
where,
cases have
Commission
as
document
here,
been
to six circuits.
disclosures of
communications to
by corporations
otherwise
the Securities
during
voluntary
the
privileged attorney-client
and
not
The
v. Meredith,
________
572 F.2d
Cir. 1978)
(en banc).
Subsequently,
Circuits
the Second,
Third, Fourth,
Federal
and D.C.
The
position
primary argument
in favor
is that
loss of
wherever the
of
the Eighth
client anticipates
making a
Circuit
discourage the
future cases,
disclosure to
at
____________________
122
F.3d
1409,
1417
(Fed.
Cir.
1997);
In re
______
Westinghouse,
____________
Corp., 856
_____
951 F.2d
at 1424-26;
In re Martin Marietta
_______________________
cert. denied,
____________
-9-9-
such
they need
By
and, if not,
contrast,
the
means to secure
safeguarding
of
the
the information
from Congress.
attorney-client
a comparative
advantage in
assessing
consequences in
this
sphere.
nature
of its communications
the ultimate
decision
whether
parties.
here
to disclose
invoked by the
such communications
government--that disclosure to
to third
a third
provided
no evidence
that respecting
MIT has
this constraint
will
overwhelming.
The IRS'
advanced if MIT
normally
will not
But
negates the
be much
disclosures to
privilege is
worth
maintaining.
To
eases
its
approach
administration.
would require,
Following the
at the
-10-10-
very
Eighth Circuit's
least, a
new set
of
increase uncertainty.
agency
should be
regarded as
akin to
the disclosure
by a
interest," MIT
disclosure
has
been
allowed,
without
forfeiting
the
or
consultation (e.g.,
____
codefendants,
insurer and
insured,
have
defense
contracts and
MIT's bills.
which the
the proper
auditing
and payment
of
interest to
lawsuit
exchange
or
in
certain
information among
other
legal
transactions--can
themselves without
loss
of the
____________________
(Fed. Cir.
1996),
cert. denied,
____________
117
1484
308,
Corp., 107
_____
310 (N.D.
Cal. 1987),
and Roberts
___ _______
117
v. Carrier
_______
S. Ct.
2482
In re
_____
(1997),
and
___
Linde
_____
-11-11-
privilege.
the
To
audit
agency,
characterized
as
which
on
adversarial,
another
would
be
relationship with
level
is
easily
to
dissolve
the
MIT
further argues
that the
disclosure
to the
audit
and
the legal
constraints
government contractor.
constraints
is far from
The
to
extent of
was
subject as
those pressures
to the
which it
and
arguendo that
________
this position by
contractor
a defense
disclosure.
Cir. 1982).
Anyone
a third
party, or does so
pursuant to a
prior agreement or
to avoid
disadvantage.
the
It would
be perfectly
of those disclosures
disclosure itself is
possible to
not necessary to
although
foster attorney-
____________________
There is no
-12-
-12-
With rare
exceptions, courts
have been
unwilling to
start
this reluctance.
MIT
could
disclose documents
maintain
documents.
the
See
___
to
privilege
when
the
audit
IRS
note 3, above.
then
agency
and
sought
still
the
same
may
appeal.
refusal to
The
Here,
the
We
IRS
require MIT
refusal reflected
challenges
to produce
the district
the
district
three specific
court's
documents
no waiver
minutes.
view that
the
court's
have disclosed
Where
privilege is claimed
alleges a
to
show nondisclosure
disposition of the
wherever
claim.
that
is
material
-13-13-
to
the
v. Wilson, 798
______
cannot
for
Instead, it proffers
sustaining the
minutes,
district court's
alternative grounds
judgment
that
not
these protections
as to
were
waived
these
under the
doctrine and
even
though
the
favor on
any
party may
defend
judgment in
its
issue.
1325
Martin v.
______
(1st
statements
Cir.
1992).
Our
discussion
of
the
billing
the
audit
attorney-client
agency.
doctrine.
survived disclosure
to
therefore
turn
product
to
the
work
the
its
We
privilege
reply brief;
answering brief
MIT's "reply"
on the
brief
raising it in
was effectively
government's cross
appeal, and
its
the
The district
did
not
apply because
the
anticipation of litigation,"
26(b)(3).
information
minutes were
not
as required by Fed.
prepared "in
R. Civ. P.
-14-14-
in
this area--partly,
one
suspects,
because work
product
for
litigation
or, if
given
to the
client,
in documents
The
to
the
extent
impressions,
that
the
minutes
conclusions, opinions,
MIT's attorneys,
Fed.
court
concluding
erred
in
R. Civ.
P.
that
contained
or
"the
mental
legal theories"
26(b)(3), the
work
of
district
product
lost
its
prepared
in anticipation
of litigation.
A Third
Circuit
F.3d
Cir. 1997).
Nevertheless,
the
In
110
government
claims
that
any
such
prove that
standard of
waiver for
the attorney-client
why the
privilege--that
waiver--would
to the work
product doctrine.
-15-15-
the resolution
of
evidentiary disputes
where, as
often
happens, the
two
approach uniformity in
attorney-client privilege.
is not as easily
The
outside
by
so that any
is said,
is
disclosure
contrast, work
"adversaries,"
inconsistent
so
product
only
protection
disclosing
with keeping it
product protection.
rule
waived as the
privilege, it
implying
in some form.6
is provided
material
from an adversary
in
against
way
waives work
See also 8
________
C. Wright, A.
Miller & R.
Marcus,
2024, at
368-69
one
more
wanted to explain
persuasive
to
confined
because
product
protection
overcome by
say
it is
that
the
privilege
absolute; on
(with
certain
the other
P. 26(b)(3).
it might be
is
strictly
hand, work
qualifications)
If
can
be
____________________
6See
___
Westinghouse,
____________
951
F.2d
at
1428-29;
Steinhardt
__________
856 F.2d
at
625;
F.2d 844,
846-47 (8th
Cir.
1988).
-16-16-
an
adversary,
protection.
real
or
potential,
forfeits
work
product
a potential adversary.
expense submissions.
no
actual controversy
Defense,
between
it
and
the
Department
even litigation
situation as one
F.2d at
9 F.3d at 234;
of
See,
____
Westinghouse, 951
____________
F.2d at
In
closing,
it
may be
helpful
to
stress that--with
regard to
both the
attorney-client privilege
and the
work
product doctrin
ine--we are concerned only with loss of
protection
as to
the
the
agency.
to
one
very documents
Nothing
disclosed to
document
already
warrants
forfeiture
of
to be directed
disclosure of
protection
for
-17-17-
audit
the
Similarly, even
where work
governing rule
directs that
against disclosure
opinions,
or
of the
legal
representative of a
R.
Civ.
P.
product can
"the
be discovered,
court shall
mental impressions,
theories
an
conclusions,
or
other
Fed.
26(b)(3).
of
protect
attorney
Conceivably,
underlying
this
reservation
materials,
even
if
might serve
protection
of
the
to
ordinary
strong
policy
protect
work
such
product
or may not
Accordingly,
district
court
on
is
MIT's
appeal,
affirmed.
________
On
production of
matter
is
the
to
the
minutes is
district
It is so ordered.
________________
judgment
of
the
government's cross-
three specified
remanded
________
the
vacated, and
_______
court
for
the
further
-18-18-