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The 2d U.S. Circuit Court of Appeals said that a subject of a grand jury investigation who, on advice of counsel, taped phone calls with a fellow broker to help protect himself cannot shield the recordings from prosecutors following an appeals court ruling. In re Grand Jury Subpoena Dated July 6, 2005, No. 05-6891-cv. The court said that, even though the tapes were “fact work product,” the government had shown that there was a “substantial need for the recordings and that the information could not be obtained through other means.” The appellant is a former mortgage broker whose lawyer was contacted by a prosecutor in January 2005 and told that his client was the subject, but not a target, of a grand jury investigation. In two meetings with the prosecutors and federal agents in January and May 2005, with his attorney by his side, the mortgage broker discussed his role in some of the transactions being probed. He disclosed that he had secretly recorded conversations with the other broker on advice of his lawyer. An FBI agent served the broker with a subpoena seeking the tape recordings. Judge Nicholas Garaufis of the Eastern District of New York ordered the broker to comply with the subpoena, finding that the broker failed to show the recordings would compromise his lawyer’s mental impressions or litigation strategy. The 2d Circuit affirmed. Writing on behalf of the 2d Circuit, Judge Richard Wesley explained that there are two types of work product: ordinary or “fact” work product and “opinion” work product. The broker claimed that the recordings fell under opinion work product because the “topics and issues” he discussed on the recordings “could reveal attorney thought processes” because his lawyer gave him instructions before his conversations with the other broker. “Appellant is wrong,” Wesley said, noting that the mortgage broker failed to carry his “heavy burden of demonstrating the applicability of the privilege; consequently the district court did not err in concluding that he failed to prove that the recordings were opinion work product.” The appellant also failed to produce the recordings to either Garaufis or the 2d Circuit for in- camera review, he said. “Such a submission would have permitted the district court, in the first instance, to assess whether disclosure of the materials would have, indeed, revealed counsel’s legal strategies,” Wesley said. “The district court could have then determined whether there were portions that were entitled to opinion work product protection, and proceeded accordingly.” Wesley said the government had shown a “substantial need” for the recordings, in that the grand jury needed evidence to determine what role mortgage brokers played in the alleged fraud. Without all the information, the grand jury can’t conduct a thorough and effective investigation. “This is accomplished only if the grand jury has access to data it needs to decide whether it should return an indictment,” Wesley said. “Here, that data clearly includes the recordings.” On the government’s second obligation, the need to show it has exhausted other means before going after attorney work product, the broker argued that the government should have first asked him about the contents of the recordings before obtaining a subpoena. “However, given that appellant invoked the attorney-client privilege regarding the recordings during that interview, it is highly unlikely that such questioning would have been productive because an attorney claiming the privilege would have been unlikely to then permit its breach in response to questions from the government,” he said. The distinction between the contents of the recordings and the actual recordings “is not . . . a real one.”

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