United States Court of Appeals for the Ninth Circuit · 1990 · Evidence
EvidenceAttorney-Client PrivilegeCrime-Fraud Exceptionattorney-client privilegecrime-fraud exceptionprima facie showingintended illegalityin camera review
Facts
The dispute concerned tapes of two meetings of the Mission Corporate Category Sortout project. The Government sought to admit the tapes under the crime-fraud exception and relied on two supplemental declarations by Agent Petersell and partial transcripts of the tapes themselves. In an earlier opinion, the Ninth Circuit had held that the independent evidence alone was insufficient to make the required prima facie showing of intended illegality. After the Supreme Court clarified that non-independent evidence such as the partial transcripts could also be used to establish the exception, the Ninth Circuit reassessed the admissibility of the tapes.
Issue
Whether, in light of the Supreme Court's ruling, the partial transcripts of the tapes together with the previously considered independent evidence made a prima facie showing of intended illegality sufficient to bring the tapes within the crime-fraud exception to the attorney-client privilege.
Rule
To invoke the crime-fraud exception successfully, the party seeking disclosure must make out a prima facie case that the attorney was retained in order to promote intended or continuing criminal or fraudulent activity. In making that ultimate showing, the court may consider evidence that is not independent of the allegedly privileged communications, including partial transcripts of those communications.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
Federal prosecutors in Phoenix investigate Orion Ledger Group, a consulting firm suspected of using counsel to structure sham records for tax filings. The government offers two affidavits from investigators showing suspicious conduct, but those affidavits alone do not clearly establish intended fraud; it also offers excerpts from recorded meetings with company lawyers in which participants discuss how to "mislead the Treasury people" during upcoming filings.
How should the court rule on whether the crime-fraud exception applies?
Explanation. The governing rule is that the party seeking disclosure must make a prima facie showing that the attorney was retained in order to promote intended or continuing criminal or fraudulent activity. In making that ultimate showing, the court may consider evidence that is not independent of the allegedly privileged communications, including partial transcripts or excerpts of those communications, together with independent evidence.