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Attorneys representing an American businessman in a foreign bribery investigation conducted by the Southern District U.S. Attorney’s Office may not invoke the work-product doctrine to shield records obtained from Swiss banks, a federal appeals court has ruled. The 2nd U.S. Circuit Court of Appeals said that records gathered by lawyers with Akin, Gump, Strauss, Hauer & Feld must be turned over to a grand jury hearing evidence in the probe of The Mercator Corp., Chairman James H. Giffen and bribery in the Republic of Kazakhstan. The 2nd Circuit, in In Re Grand Jury Subpoenas Dates March 19, 2002 and August 2, 2002, 02-6239, upheld a September decision by Southern District Judge Denny Chin, who found that the work-product exception does not apply to records for some 30 accounts held in Swiss banks. The records were being sought from Akin Gump because of the difficulty that U.S. investigators have had in obtaining information on the accounts directly from the banks. Investigators claimed the records were critical for their investigation of possible bribery of foreign officials, a violation of the Foreign Corrupt Practices Act. But Akin Gump, which represents Mercator and Giffen, said Judge Chin was wrong to order the production of the bank records. The lawyers argued that compelling production would violate the sanctity of attorney work product because it would reveal their “selection and compilation of records,” and therefore give prosecutors a picture of their defense strategy. Akin Gump also argued that the United States had failed to show the records could not have been obtained from other sources. Writing for the 2nd Circuit, Judge Reena Raggi said, “the principle underlying the work-product doctrine — sheltering the mental processes of an attorney as reflected in documents prepared for litigation — is not generally promoted by shielding from discovery materials in an attorney’s possession that were prepared neither by the attorney nor his agents.” Raggi said that Akin Gump’s concern in this case — that producing the records would reveal defense strategy — was unpersuasive. The records sought for the grand jury, she said, were the same sought by the United States “without success for more than two years.” Noting that a party asserting the privilege must show a “real, not a speculative concern” that attorney thought processes will be revealed, Raggi said, “This burden of objective proof cannot be met through conclusory ex parte affidavits, such as those filed by appellants with the district court in this case … “ The judge said Akin Gump was unwilling to go further to reassure the court that its concerns were not merely speculative. “Similarly troubling is the firm’s failure to identify or submit the responsive documents for in camera review, a practice that is both long-standing and routine in cases involving claims of privilege,” she said. Without in camera review, she said, there was no way for Judge Chin to evaluate whether the subset of records “consisted of so few records focused on such discrete transactions that counsel’s strategic thinking was apparent … “ “Moreover, without the documents, the district court could not consider the possibility of issuing a protective order that disclosed some, if not all, of the account records in Akin Gump’s possession to the grand jury, thereby confounding any conclusions that might be drawn about counsel’s selection strategy,” she said. Senior Judge Amalya Kearse and Judge Sonia Sotomayor joined in the opinion. James Benjamin, Robert A. Johnson, Rex S. Heinke, Mark J. MacDougall and Heather J. Pellegrino of Akin Gump represented Mercator and Giffen. Assistant U.S. Attorneys George S. Canellos, Peter G. Neiman and Andrew J. Ceresny represented the United States.

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