United States v. Zolin

Supreme Court of the United States · 1989 · Evidence

EvidenceAttorney-Client PrivilegeCrime-Fraud ExceptionIn Camera Reviewattorney-client privilegecrime-fraud exceptionin camera reviewRule 104(a)

Facts

During an IRS investigation of L. Ron Hubbard's tax returns, the IRS sought tapes and sealed court documents filed in related state-court litigation. The Church and Mary Sue Hubbard opposed production of the tapes, asserting attorney-client privilege, while the IRS argued that the tapes fell within the crime-fraud exception. To support that argument, the IRS submitted declarations and partial transcripts of the tapes that it had lawfully obtained from a confidential source, and it asked the district court to listen to the tapes in camera. The district court ruled the tapes were privileged and that the crime-fraud exception did not apply, and it refused to review the tapes in full.

Issue

May a district court, at the request of the party opposing the attorney-client privilege, conduct an in camera review of allegedly privileged communications to determine whether the crime-fraud exception applies? If so, must the opposing party first make some threshold showing, and may that showing rely on evidence that is not independent of the contested communications, such as partial transcripts not adjudicated privileged?

Rule

A district court may use in camera review to determine whether allegedly privileged attorney-client communications fall within the crime-fraud exception. Before such review is undertaken at the request of the party opposing the privilege, that party must present evidence sufficient to support a reasonable belief that in camera review may yield evidence establishing the exception's applicability. The threshold showing may be made with any relevant, lawfully obtained, nonprivileged evidence, even if that evidence is not independent of the contested communications.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a federal fraud prosecution in Denver, Mountain Crest Lending seeks to withhold emails between its chief executive, Nolan Price, and company counsel. The prosecution asks the judge to review the emails in camera, offering only an agent's statement that executives who commit fraud often consult lawyers before acting.

Should the judge grant the request for in camera review?

Explanation. A court may use in camera review to assess the crime-fraud exception, but not automatically. The opponent of the privilege must first present evidence sufficient to support a good-faith belief by a reasonable person that in camera review may reveal evidence establishing the exception. Bare suspicion or generalized assertions are not enough.