This Court entered an order on July 10, 2000, directing that an evidentiary hearing would be held to determine the best way to restore and search non-archived emails not produced in this case. A subsequent evidentiary hearing was ordered on July 20, 2000 to determine the extent and circumstances of non-disclosure of requested email documents in the underlying case. Plaintiffs had filed substantial evidence with this Court revealing the existence of an email problem, additional evidence that the defendants had provided false statements to this court about the missing emails, and evidence of an effort to obstruct justice through threats and intimidation of witnesses to the email problem. During the course of the evidentiary hearing, questions arose regarding the applicability of attorney-client privilege to certain documents and testimony sought by the plaintiffs. The Court has recessed the evidentiary hearing to determine the extent of the attorney-client privilege in this situation.
This matter comes before the Court upon application by Intervenor Northrop Grumman Corporation ("Northrop Grumman") and Nonparty Witness Piper Marbury Rudnick and Wolfe ("Piper Marbury"). On October 16, 2000, Nonparty Northrop Grumman filed a Memorandum in Support of Assertion of Attorney-Client Privilege and Work Product. Northrop Grumman and Piper Marbury, on Northrop Grumman's behalf, assert that the documents (Nos. 1-18) *fn1 submitted to the Court in Piper Marbury's privilege log of October 5, 2000 should not be disclosed to the plaintiffs in this case.
Northrop Grumman has also submitted two other privilege logs, one from the files of in-house counsel H. Lowell Brown ("Brown privilege log"), the other from the files of in-house counsel Ralph Pope ("Pope privilege log"). These additional privilege logs were provided on November 13, 2000, in conjunction with Northrop Grumman's response to this Court's interrogatory as to whether Northrop Grumman had any information indicating that the White House Counsel's Office was aware of the alleged threats to Northrop Grumman employees before January, 2000.
The underlying allegations in this case arise from what has become popularly known as "Filegate." Plaintiffs allege that their privacy interests were violated when the FBI improperly handed over to the White House hundreds of FBI files of former political appointees and government employees under the Reagan and Bush Administrations.
During the course of this litigation, it has come to light that a large amount of electronic mail within the White House computer system was not records managed, and thus, the data was not searched for responsive documents when the White House responded to subpoenas. The contractor who was responsible for maintaining the computer system for the Executive Office of the President ("EOP"), Northrop Grumman, has been subpoenaed and its employees questioned in relation to when this computer error was discovered, and when the problem was disclosed to the White House Counsel's Office and other bodies.
The current dispute revolves around whether the attorney-client privilege and/or the work product doctrine apply to documents held by Piper Marbury, outside counsel for Northrop Grumman, the White House contractor responsible for the computer systems of the EOP. Plaintiffs allege that the documents included in Piper Marbury's privilege log should be disclosed, while Piper Marbury and Northrop Grumman assert the attorney-client privilege and/or work product doctrine apply to these documents. A similar dispute covers the documents listed in the Brown and Pope privilege logs submitted by Northrop Grumman. Plaintiffs argue that these documents are not within the scope of the attorney client or work product privileges, while Northrop Grumman and Piper Marbury assert both privileges for each document listed on the Brown and Pope privilege logs.
The Court will also address the dispute regarding the testimonial privilege asserted by Northrop Grumman employees and Northrop Grumman. The assertion of the attorney-client privilege has severely inhibited the evidentiary process before this Court. Plaintiffs allege that the attorney-client privilege doesn't apply to various conversations and meetings between Northrop Grumman employees and Northrop Grumman counsel on the basis of waiver, the crime-fraud exception, and other theories. Northrop Grumman and its employees argue that the attorney-client privilege should be liberally interpreted and applied in these circumstances.
II. Attorney-Client Privilege
In determining whether the attorney-client privilege applies to the remaining seventeen documents included in Piper Marbury's Privilege Log, the Court must evaluate the purpose of the attorney-client privilege and the extent to which the privilege has been held to apply in other cases. "The attorney-client privilege exists to protect confidential communication, to assure the client that any statements he makes in seeking legal advice will be kept strictly confidential between him and his attorney; in effect, to protect the attorney-client relationship." United States v. American Tel. & Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980). The attorney-client privilege must protect "a client's disclosures to an attorney," and "the federal courts extend the privilege also to an attorney's . . . communications to a client, to ensure against inadvertent disclosure, either directly or by implication, of information which the client has previously confided to the attorney's trust." Coastal States Gas Corp. v. Department of Energy, 617 F.3d 854, 862 (D.C. Cir. 1980). *fn2 A document is protected by the attorney-client privilege if confidential attorney-client communications are revealed, and those communications were made in order to obtain or deliver legal assistance. See In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984; Alexander v. FBI, 186 F.R.D. 154, 161 (D.D.C. 1999).
The attorney-client privilege, and the purpose of the privilege, apply to corporations as well as individuals. "Both for corporations and individuals, the attorney-client privilege serves the function of promoting full and frank communications between attorneys and their clients. It thereby encourages observance of the law and aids in the administration of justice." Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343, 348 (1986).
The Court of Appeals for the District of Columbia Circuit has stated that the attorney-client privilege only applies when:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984).
In evaluating the Piper Marbury privilege log, it is clear that Northrop Grumman was the client of Piper Marbury, and more specifically, the client of Earl J. Silbert, Esq. The seventeen items remaining in the Piper Marbury privilege log are the results of communications between Northrop Grumman representatives and Mr. Silbert.
Piper Marbury, through the Declaration of Richard J. Oparil of October 23, 2000, indicates that the communications related to the entries in the Piper Marbury privilege log were not made in the presence of strangers. It is evident from the context of these communications, the testimony of Mr. Silbert before this Court and additional materials produced in this case that the primary purpose of these communications was to seek legal advice. It is also evident that Northrop Grumman was not seeking to commit a crime or a tort when it sought legal advice from Mr. Silbert. *fn3
Finally, the last requirement of the attorney-client privilege test established by the D.C. Circuit Court of Appeals in In re Sealed Case, has been met in this case. The attorney-client privilege has been claimed by Northrop Grumman and by Piper Marbury on Northrop Grumman's behalf.
In order for the crime-fraud exception to apply, the plaintiffs would have to show two things, that Northrop Grumman participated in a crime or fraud, and that Northrop Grumman consulted with counsel for the purpose of furthering a crime or fraud. The party seeking to show that the crime fraud exception applies "must offer 'evidence that if believed by the trier of fact would establish the elements of an ongoing or imminent crime or fraud.'. . . [and] that 'the client consulted the lawyer for the purpose of committing a crime or fraud.'" In re Sealed Case, 107 F.3d 107 F.3d 46, 50-51 (D.C. Cir. 1996), quoting In re Sealed Case, 754 F.2d 395, 399 (D.C. Cir. 1985).
The most likely crime that Northrop Grumman could be alleged to have committed is obstruction of justice. 18 U.S.C. § 1505 provides the relevant obstruction statute,
"Whoever corruptly ['acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information'] . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress -
Shall be fined under this title or imprisoned not more than five years, or both" 18 U.S.C. §1505. (quoting definition of corruptly from 18 U.S.C. § 1515(b)).
Although plaintiffs have alleged criminal activity by the EOP in evading subpoenas, plaintiffs have not provided sufficient evidence of affirmative participation in criminal activity by Northrop Grumman. Plaintiffs have alleged that the EOP has committed various crimes; plaintiffs then allege that EOP criminal activity was assisted by Northrop Grumman. Even assuming that there is a showing that EOP obstructed justice, plaintiffs have not shown that Northrop Grumman is an accessory after the fact to obstruction of justice.
In order to show that Northrop Grumman was an accessory after the fact, the plaintiffs must show that Northrop Grumman had actual knowledge that a crime had been committed and that the EOP had committed a crime. See, e.g., United States v. Mills, 597 F.2d 693, 696 (9th Cir. 1979); United States v. Bissonette, 586 F.2d 73, 76 (8th Cir. 1987). The court in Butler v. United States also held that actual knowledge on the part of the alleged accessory must be proven, in addition that the accessory acted or assisted the principal with the specific intent to help the principal evade apprehension or punishment. 481 A.2d 431, 443-44 (D.C. Cir. 1984), cert. denied, 470 U.S. 1029 (1985). Plaintiffs have not provided any evidence to show that Northrop Grumman had any corporate knowledge of the specifications of outstanding subpoenas or document requests in the fall of 1998. Nor do plaintiffs show that Northrop Grumman took any affirmative steps to conceal any facts regarding the alleged threats to Northrop Grumman employees. While plaintiffs assert that the alleged threats to Northrop Grumman employees resulted in an obstruction of justice by the EOP, there are no allegations or evidence that Northrop Grumman operated to prevent the dissemination of any documents or information that had been subpoenaed.
Plaintiffs do not allege any affirmative acts of concealment by Northrop Grumman. There is no evidence that Northrop Grumman actively engaged in obstruction of justice or that Northrop Grumman affirmatively participated in other criminal actions in relation to the failure of the White House to turn over responsive documents to various entities that had issued subpoenas to the EOP. Northrop Grumman may well have been aware of criminal activity by the EOP, but there is no evidence of any affirmative criminal activity conducted by Northrop Grumman or its employees.
Plaintiffs have failed to meet the first or the second requirements of the crime-fraud exception. Plaintiffs have not shown that Northrop Grumman consulted counsel for the purpose of committing a crime or fraud. Even if the Court were to accept for the sake of argument that Northrop Grumman had participated in a crime or a fraud, there is no evidence whatsoever to show that Northrop Grumman consulted with Earl Silbert for the purpose of furthering that crime or fraud. Corporations consult with counsel for a variety of reasons. Even if Northrop Grumman had been participating in criminal activity, it may have consulted with Earl Silbert regarding contract issues, personnel concerns, or because Northrop Grumman wanted to find the best way of discontinuing its participation in any potentially criminal or fraudulent activity. Plaintiffs have not carried their burden of showing that the crime-fraud exception applies to the ...