In the Courts

Limits of Fact Work Product Protection Tested in Grand Jury Investigation

The Second Circuit affirmed a ruling directing a subject of a grand jury investigation to comply with a subpoena to turn over tapes of surreptitiously recorded conversations between mortgage brokers. The court found the tapes, which were asserted to be made after consultation with and at the direction of counsel, to be fact work product. However, the court found that 'the government established that the grand jury has a substantial need for the recordings and that the information contained on them could not be obtained through other means.' In finding the tapes to be fact work product, rather than opinion work product that is entitled to greater protection, the Second Circuit noted that the burden is on the party asserting the privilege: 'Appellant bears the consequences of not submitting his recordings for in camera review.' Id. at *3. The court also took into account the nature of the medium itself in determining whether the information could be obtained through other means. The court stated that 'there is no way to recreate the discussions ' it is unlikely that direct questioning [ ] would reveal the same information contained on the recordings.' In re Grand Jury Subpoena Dated July 6, 2005, No. 05-6891-CV, 2007 WL 4355122 (2d Cir. Nov. 16, 2007).

Successful Prosecution of FCPA Bribery Does Not Require Showing of Knowledge of FCPA's Specific Prohibitions

In United States v. Kay, No. 05-20604, 2007 WL 3088140 (5th Cir. Oct. 24, 2007), the Fifth Circuit held that the anti-bribery provisions of the Foreign Corrupt Practices Act ('FCPA') do not require proof that a defendant acted with knowledge of the FCPA's specific prohibitions. As charged in the indictment, the government had to prove in part that the defendants acted 'willfully' and 'corruptly.' 15 U.S.C. ' 78ff(c)(2)(A). The district court told the jury that 'corruptly' was an element of the offense and meant acting intentionally 'with a bad purpose or evil motive of accomplishing either an unlawful end or result, or a lawful end or result by some unlawful method or means.' The district court also defined 'knowingly' as acting voluntarily and intentionally. Id. It did not define the term 'willfully.'

In response to the defendant's arguments, the Fifth Circuit reasoned that 'willfully,' which was not defined in the statute, had three accepted common law definitions: 1) having knowledge of one's actions; 2) having knowledge that one's actions were generally unlawful; and 3) having knowledge that one's actions violated a specific statute. The Fifth Circuit held that the district court's jury instruction captured the first and second categories of 'willfully' and that the third category applied only to certain statutory violations involving complex statutes such as federal tax laws and therefore not the FCPA.

Limits of Fact Work Product Protection Tested in Grand Jury Investigation

The Second Circuit affirmed a ruling directing a subject of a grand jury investigation to comply with a subpoena to turn over tapes of surreptitiously recorded conversations between mortgage brokers. The court found the tapes, which were asserted to be made after consultation with and at the direction of counsel, to be fact work product. However, the court found that 'the government established that the grand jury has a substantial need for the recordings and that the information contained on them could not be obtained through other means.' In finding the tapes to be fact work product, rather than opinion work product that is entitled to greater protection, the Second Circuit noted that the burden is on the party asserting the privilege: 'Appellant bears the consequences of not submitting his recordings for in camera review.' Id. at *3. The court also took into account the nature of the medium itself in determining whether the information could be obtained through other means. The court stated that 'there is no way to recreate the discussions ' it is unlikely that direct questioning [ ] would reveal the same information contained on the recordings.' In re Grand Jury Subpoena Dated July 6, 2005, No. 05-6891-CV, 2007 WL 4355122 (2d Cir. Nov. 16, 2007).