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Attorneys for a company involved in the gun industry did not forfeit the work product privilege when they vouched for the legality of the company’s activities and claimed its practices were cleared by the Bureau of Alcohol, Tobacco and Firearms, the 2nd U.S. Circuit Court of Appeals has ruled. Overturning a lower-court judge, the 2nd Circuit said the Southern District U.S. Attorney’s Office is not entitled to receive notes and other work product simply because the attorneys volunteered the information to prosecutors. The decision in John Doe Co. v. United States concerned a grand jury investigation into whether the company had violated the country’s firearms laws. The anonymous company, 2nd Circuit Judge Pierre Leval said, “makes its facilities available to third parties to engage in purchase and sales,” and is not involved in the transactions themselves, but receives a commission for use of the facilities. Prosecutors for U.S. Attorney James B. Comey convened a grand jury to determine, in part, whether the company required a federal firearms license and whether the third-party transactions violated firearms laws. Once the company attorneys learned of the investigation, they sent a letter to prosecutors saying the company was acting in the good faith belief that its activities were legal — and it had been assured by ATF officials, as well as the bureau’s general counsel, that it did not need a license. While the attorneys invited the prosecutors to call the bureau to confirm its position, they insisted that “nothing in this letter is intended to waive any applicable privilege or protection available under law.” The government responded by prompting the grand jury to issue a subpoena of notes taken by company attorneys in their meetings with the bureau. When the company objected, the government moved to compel production of the notes before Southern District Judge Loretta Preska. Preska granted the motion as to portions of the notes, finding that the company’s claim of good faith and its decision to relate the assurance of the ATF amounted to an involuntary waiver of its privileges. The 2nd Circuit reversed, with Leval saying, “Forfeiture of this nature is justified by considerations of fairness to the adversary.” “In some circumstances, courts have ruled that it would be unfair for a party asserting contentions to an adjudicating authority to then rely on its privileges to deprive its adversary of access to material that might disprove or undermine the party’s contentions,” he said. Preska, he said, was relying on this doctrine when she found that it would be “unfair to require the government” to accept what might be “selective disclosure” without giving it the opportunity to review all of the material on which the disclosure was based. ‘APPROPRIATE CONSIDERATION’ But Leval said the lower court “did not give appropriate consideration” to the circumstances in the case, where “Doe’s letter was gratuitously delivered to the United States Attorney, and only the United States Attorney, in relation to the latter’s conduct of a grand jury investigation.” “Focusing on the respective roles and powers of these adverse parties in this context, we believe there is no basis for concluding that the United States Attorney suffered any unfair prejudice in receiving Doe’s letter while Doe continued to assert its privilege with respect to the notes taken by its attorneys,” Leval said. “The government is in no way worse off as the result of its receipt of Doe’s letter than it would be had the letter never been delivered,” he said. “It does not run the risk that some independent decisionmaker will accept Doe’s representations without the government having adequate opportunity to rebut them.” Judges Joseph M. McLaughlin and Robert A. Katzmann joined in the opinion. Assistant U.S. Attorneys Robert Strang and Gary Stein represented the government. Mark J. Hulkower, Bruce C. Bishop and Brian M. Heberlig of Steptoe & Johnson represented the company.

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