IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-60714

_____________________

IN RE: GRAND JURY PROCEEDINGS

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas 

_________________________________________________________________

(December 22, 1994)

Before KING, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM:

This is an appeal from an order of the district court

directing two attorneys to comply with a subpoena duces tecum

issued by a grand jury. The attorneys moved to quash the

subpoena on grounds that the documents requested by the

government were privileged under the work product doctrine. The

district court denied the motion to quash and turned over two of

the documents to the government. The district court also

determined that the remaining documents, which are presently in

the custody of the district court, were to be turned over to the

government. On October 27, 1994, this court granted a temporary

stay to block delivery of the remaining documents pending review

of the district court's turnover order. For the reasons

elaborated below, we reverse the judgment of the district court

and remand for an evidentiary hearing to determine whether the
 

1 The government's brief states that Aguirre's body was

never recovered and contends that Aguirre is still alive and

presently in hiding.

2

government can establish the requisite need to overcome the work

product privilege.

I. FACTUAL AND PROCEDURAL BACKGROUND

In March 1992, the law firm of Rogers & Wells was consulted

regarding the potential representation of a wealthy Mexican

citizen, Ricardo Aguirre-Villagomez ("Aguirre"), his wife,

Rosalinda Silva de Aguirre ("Silva"), his daughter, Gloria

Aguirre, and Green Mountain Holdings, Ltd. ("Green Mountain"), an

investment company owned by the Aguirre family. After Aguirre

was reported killed in an automobile accident in Mexico1, Silva

and Gloria Aguirre formally retained Rogers & Wells in an effort

to obtain the release of a $25 million investment portfolio held

by Green Mountain which had been seized by the government in

connection with a civil forfeiture action.

In February 1993, believing Aguirre's death to have been

falsified, the government indicted Aguirre on narcotics and money

laundering charges, dismissed the civil forfeiture proceeding

against Green Mountain, and began a criminal forfeiture action

against Green Mountain and other property owned by Aguirre. In

response, Rogers & Wells' attorneys filed a suggestion of death

and moved to dismiss the indictment and obtain a release of the

Green Mountain portfolio.
3

In August 1993, the motion to dismiss the indictment against

Aguirre was denied. On September 1, 1993, Rogers & Wells

terminated its representation of the Aguirre family interests. 

In 1994, the government indicted Silva on a charge of money

laundering. She agreed to cooperate with the authorities and

entered a guilty plea.

On October 4 and 5, 1994, the government served subpoenas

duces tecum on two Rogers & Wells' attorneys: Mark Pomerantz, a

partner in the firm's New York office, and Whitney Adams, an

associate in the firm's Washington, D.C. office. The subpoenas

directed Pomerantz and Whitney to testify before a grand jury in

the Southern District of Texas and ordered them to produce all

"notes, memoranda, or any document pertaining to any interviews

of any person pertaining to this case" and "[a]ny records, notes,

memoranda, or any document referencing any conversation between

any employee of Rogers & Wells and any of [certain specified]

individuals." The government obtained express waivers of the

attorney-client privilege from Silva, Gloria Aguirre, and Green

Mountain.

Whitney and Pomerantz have turned over many non-privileged

documents to the grand jury; however, believing other documents

to be privileged under the work product doctrine, Whitney and

Pomerantz filed a motion to quash or modify the subpoenas, and

submitted all of the disputed documents to the district court for

in camera inspection. These documents included, inter alia,

internal law firm memoranda, e-mails, draft pleadings, and
4

memoranda to file, including memoranda of conversations with

third parties.

On October 21, 1994, the district court held a hearing on

the motion to quash or modify and ruled that the documents were

not privileged under the work product doctrine. Although the

basis for the court's ruling is not entirely clear, it appears to

be based on the district court's conclusions that the work

product privilege does not apply to communications with third

parties and does not extend to subsequent litigation. The

district court ordered Pomerantz and Whitney to redact those

portions of the documents which reflected litigation strategy but

to leave intact those portions which revealed any third party

communications. In order to define for the parties the scope of

its ruling, the district court reviewed two of the documents in

camera and identified for Pomerantz and Whitney those portions of

the two documents that it believed could be redacted pursuant to

its turnover order. The district court then ordered Pomerantz

and Whitney to redact the documents in accordance with its order

and submit all redacted documents to the district court for

turnover to the government by November 1, 1994. 

On October 24, 1994, Pomerantz and Whitney formally

submitted the redacted documents to the district court. The

following day, the district court turned two of the redacted

documents over to the government. Pomerantz and Whitney then

asked the district court to stay its turnover order to prevent

disclosure of the remaining documents. The district court denied
5

the requested stay and informed the parties that "I am going to

turn them [the remaining documents] over to the Government unless

the Circuit tells me not to."

On October 25, 1994, Pomerantz and Whitney filed a notice of

appeal and asked this court to grant an emergency stay of the

district court's turnover order. On October 27, 1994, this court

granted the requested stay pending consideration of the merits of

the district court's work product ruling. 

The government argues that the district court's turnover

order was appropriate and makes four arguments on appeal: (1)

this court lacks subject matter jurisdiction to consider the

appeal because the district court's order is not final absent a

finding of contempt against Pomerantz and Whitney; (2) the work

product privilege does not protect documents which reflect

conversations with third parties; (3) the work product privilege

does not extend to subsequent litigation; and (4) the work

product privilege is inapplicable in this case because the

crime/fraud exception permits discovery of work product documents

if the client was engaged in a crime or fraud. Finding the first

three of these arguments to be without merit, and the fourth to

be not sufficiently developed in the district court to provide an

alternative means of upholding the district court's decision, we

reverse the judgment of the district court and remand for a

determination of whether the government can establish the

requisite need for the remaining documents. We now proceed to

address each of the government's arguments in turn.
6

II. ANALYSIS

A. Is there a "final order" over which this court may exercise

jurisdiction?

The government contends that this court lacks subject matter

jurisdiction to entertain this appeal because the district

court's order is not a "final decision" within the meaning of 28

U.S.C. § 1291. To be appealable, an order must be either: (1)

final; (2) fall within a specific class of interlocutory orders

made appealable by statute, see, e.g., 28 U.S.C. § 1292(a); or

(3) fall within some jurisprudential exception. Lakedreams v.

Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991).

The government correctly recites the general rule that a

denial of a motion to quash a subpoena is not final until the

individual seeking to quash disobeys the court order and is held

in contempt. New York Times Co. v. Jascalevich, 439 U.S. 1304,

1305-06 (1978); United States v. Ryan, 402 U.S. 530, 532-33

(1971); Cobbledick v. United States, 309 U.S. 323, 327-28 (1940);

In re Grand Jury Subpoena, 926 F.2d 1423, 1429-30 (5th Cir.

1991). This general rule, however, is just that: a general

rule. The courts have carved out numerous exceptions, the most

applicable one in this case being the so-called "collateral order

doctrine" which permits immediate appeal of a trial court order

if it "conclusively determine[s] the disputed question,

resolve[s] an important issue completely separate from the merits

of the action, and [is] effectively unreviewable on appeal from a

final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468
7

(1978) (citations omitted). The Supreme Court first announced

the collateral order doctrine in the landmark case of Cohen v.

Beneficial Loan Corp., 337 U.S. 541 (1949), which explained that

the exception is necessary to permit appellate review in those

cases where waiting for a final judgment "will be too late

effectively to review the present order, and the rights conferred

[upon the appellant] . . . will have been lost, probably

irreparably." Id. at 546.

We believe that the requirements for the invocation of the

collateral order doctrine have been satisfied in this case. 

First, the district court's turnover order has been fully

executed by the appellants and the district court explicitly

stated, "Well, I think generally the issue is appealable now. . .

. I want you to preserve your right to appeal. I want you to be

able to take up these things . . . ." 

Normally, orders to turn over property to a court officer

(such as a receiver) are not considered final orders which can be

appealed. Jascalevich, 439 U.S. at 1306; United States v.

Beasley, 558 F.2d 1200, 1201 (5th Cir. 1977); Wark v. Spinuzzi,

376 F.2d 827 (5th Cir. 1967); see generally Charles Alan Wright,

et al., 15A Federal Practice and Procedure § 3910 n.38 (2d ed.

1991) (citing cases). This is so because in such cases, "whether

the materials will eventually be released to the defense and the

public is a matter yet to be litigated." Jascalevich, 439 U.S.

at 1306. Thus, it would appear at first blush that the district

court's turnover has not been conclusively decided because the
8

district court itself, not the government, presently has

possession of the documents. Yet a closer look at the October

24, 1994 turnover order reveals that the order contemplates

turnover of all documents to the government, not to the court. 

In such situations where a court has possession of property and

thereafter issues an immediately enforceable order to turn over

the property to the other party, the order is sufficiently ripe

for appellate review. The reason for this rule is obvious: if

the court already has lawful possession of the documents, a

subsequent turnover order will be immediately enforceable without

the necessity of holding the property owner in contempt. Cf.

Perlman v. United States, 247 U.S. 7, 13 (1918) (holding turnover

order to be final as to third party intervenor whose property was

in custody of trial court at time order issued).

In this case, there is an immediately enforceable order to

turn over the remaining documents. Judge Vela stated that "I am

going to turn them [the disputed documents] over to the

Government unless the Circuit tells me not to." The written

turnover order denying the motion to "withhold said documents

from the government until Movants' appeal of the Court's turnover

order has been ruled upon by the Fifth Circuit" echoes this

determination. 

It seems clear that the district court considers its

turnover order to have been executed and complied with such that

it intends to turn the documents over to the prosecution without

having to hold Pomerantz and Adams in contempt. It would be
9

absurd to decline jurisdiction on grounds that Pomerantz and

Adams must await a judgment of contempt which Judge Vela has so

clearly indicated will not be forthcoming. 

Second, the turnover order clearly presents an important

issue that is completely separate from the merits of the

underlying grand jury investigation. Third, denying appellate

review would result in irreparable injury because the district

court's ruling on the two redacted documents also extends to the

remaining documents which have not yet been turned over to the

government. If these documents are turned over, Pomerantz and

Adams will irretrievably lose any protectible interest they have

in such documents.

In short, the district court already has possession of these

documents and it believes it can turn them over to the

prosecution unless this court says otherwise. To decline

jurisdiction on grounds that there has been no final order would

mean that we are impuissant to prevent the irreparable harm that

will occur if the district court's turnover order is in error. 

In the words of the Supreme Court in Perlman v. United States,

247 U.S. 7 (1918), to decline jurisdiction on grounds that there

has been no adjudication of contempt would leave Pomerantz and

Adams "powerless to avoid the mischief of the order." Id. at 13. 

We decline the invitation to construe the final order doctrine in

such a manner. Accordingly, we believe that the unique dilemma

presented by this case warrants invocation of the collateral

order doctrine and permits us to exercise subject matter
10

jurisdiction. We now turn to analyze the district court's

turnover order on the merits.

B. Does the work product privilege prevent disclosure of

communications with third parties?

Pomerantz and Adams characterize the district court's

turnover order as resting exclusively on the conclusion that the

work product privilege is coextensive with the attorney-client

privilege in that it does not provide immunity for communications

with third parties. While the district court clearly indicated

that it did not believe that communications with third parties

were covered by the work product doctrine, it is not clear that

the district court based its ruling exclusively on such grounds. 

Whatever the district court's reasoning, however, we find it

necessary to reiterate that "the mere voluntary disclosure to a

third person is insufficient in itself to waive the work product

privilege." Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382

(5th Cir. 1989). Rather, the test for whether a third party

communication is privileged by the work product doctrine is

whether the information recorded by the attorney is "obtained or

prepared by an adversary's counsel with an eye toward

litigation." Hickman v. Taylor, 329 U.S. 495, 511 (1947). Even

if a third party communication is obtained or prepared with an

eye toward litigation, it may be discoverable if the "one who

would invade that privacy [can] establish adequate reasons to

justify production." Furthermore, to the extent that the

documents in question reflect oral conversations made by third
 

2 While the Federal Rules of Civil Procedure are not

applicable to grand jury proceedings such as this case, Hickman--

and presumably its progeny such as Upjohn-- is. See United

States v. Nobles, 422 U.S. 225, 236 (1975) (extending Hickman's

work product privilege to the criminal context); see also FED. R.

CRIM. P. 16(b)(2) (establishing work product protection in

pretrial criminal context). 

11

parties to Pomerantz and Adams, Hickman makes it clear that

discovery may be had only in a "rare situation," because of the

danger that the attorney's version of such conversations is

inaccurate and untrustworthy. Id. at 513. Perhaps more

importantly, the stricter limits on disclosure of work product

which results from oral communications with third parties is also

necessary due to the likelihood that such documents will reveal

the attorney's mental processes or litigation strategy. Upjohn

Co. v. United States, 449 U.S. 383, 400 (1981); see Fed. R. Civ.

P. 26(b)(3).

While Hickman does not spell out the burden of proof which

the government must carry in order to obtain discovery of

documents based upon oral communications with third parties, the

Supreme Court in Upjohn Co. v. United States, 449 U.S. 383 (1981)

clarified that the requisite showing is "far stronger" than for

other work product documents. Id. at 402. Specifically, the

Upjohn court stated that "[a]s Rule 26 [of the Federal Rules of

Civil Procedure] and Hickman make clear such work product [based

on oral statements from third parties] cannot be disclosed simply

on a showing of substantial need and inability to obtain the

equivalent without undue hardship." Id. at 401; see also Fed. R.

Civ. P. 26(b)(3).2 
 

3 Exemption 5 exempts from public disclosure "interagency or

intra-agency memorandums or letters which would not be available

by law to a party . . . in litigation with the agency." 5 U.S.C.

§ 552(b)(5).

12

C. Does the work product privilege extend to subsequent

litigation?

The government argues that the work product privilege

recognized in Hickman-- which was extended to the criminal

context in United States v. Nobles, 422 U.S. 225, 236 (1975)--

evaporates when the litigation for which the document was

prepared has ended. Hickman and its progeny, however, do not

delineate a temporal scope for the privilege. 

In the context of Rule 26 of the Federal Rules of Civil

Procedure-- which was modeled upon Hickman, see Fed. R. Civ. P.

26(b)(3), advisory committee's notes to 1970 amendment-- the

Supreme Court recognized that "the literal language of the Rule

protects materials prepared for any litigation or trial as long

as they were prepared by or for a party to the subsequent

litigation." FTC v. Grolier, Inc., 462 U.S. 19, 25 (1983). In

Grolier, the Supreme Court held that the work product privilege

contained in Exemption 5 of the Freedom of Information Act3

extended to subsequent litigation. The Court proclaimed that it

was "not rely[ing] exclusively on any particular construction of

Rule 26(b)(3) . . ." in reaching its decision, but was

independently relying on the statutory language of Exemption 5. 

Id. Nonetheless, Grolier provides a strong hint that Rule 26
13

and a fortiori, Hickman (which is the genesis of Rule 26),

applies to subsequent litigation.

The emerging majority view among the circuits which have

struggled with the issue thus far seems to be that the work

product privilege does extend to subsequent litigation. One

circuit, the Third Circuit, appears to extend the work product

privilege only to "closely related" subsequent litigation. In re

Grand Jury Proceedings, 604 F.2d 798, 803-04 (3d Cir. 1979).

A broader view, exemplified by the Fourth, Sixth and Eighth

Circuits, is that the privilege extends to all subsequent

litigation, related or not. See United States v. Pfizer, Inc.

(In re Murphy), 560 F.2d 326, 335 (8th Cir. 1977); United States

v. Leggett & Platt, Inc., 542 F.2d 655, 660 (6th Cir. 1976),

cert. denied, 430 U.S. 945 (1977); Duplan Corp. v. Moulinage et

Retorderie de Chavanoz, 487 F.2d 480, 484-85, n.15 (4th Cir.

1973).

We need not choose between these two alternative theories at

this time because the documents sought to be discovered in this

case satisfy both. The original litigation for which the

documents were prepared involved the seizure of the Green

Mountain portfolio pursuant to a criminal investigation of money

laundering by Aguirre. The grand jury investigation for which

the documents are now being sought is merely a broadened

investigation of money laundering by Aguirre and others. Thus,

the litigation for which the Rogers & Wells attorneys prepared

the documents is unquestionably "closely related" to the grand
14

jury investigation for which they are presently being sought. 

Accordingly, whichever view of the temporal scope of the work

product privilege one prefers, it is clear that the documents

sought in this case are still protected by the work product

privilege.

(3) Does the crime/fraud exception apply in this case?

This court has clearly recognized the validity of a

crime/fraud exception to the work product privilege. See In re

Burlington Northern, Inc., 822 F.2d 518, 524-25 (5th Cir. 1987),

cert. denied, 484 U.S. 1007 (1988). One question we have as yet

not answered, however, is whether the crime/fraud exception will

permit disclosure of materials when the attorney who prepared the

materials had no knowledge that his efforts were furthering his

client's criminal activity. In this case, the government

concedes that Pomerantz and Adams are not suspected of criminal

involvement. 

In the attorney-client privilege context, the crime/fraud

exception permits disclosure of any communications between the

attorney and client if the client seeks advice from the attorney

in carrying out a crime or fraud. 1 McCormick on Evidence § 95,

at 350 (John William Strong ed., 4th ed. 1992). The test is

whether the client's purpose is the furtherance of a future fraud

or crime. Id. However, this focus on the client's purpose

appears to be driven by the fact that the attorney-client

privilege is, of course, held by the client and not the attorney.
15

In contrast to the attorney-client privilege, the work

product privilege belongs to both the client and the attorney,

either one of whom may assert it. Thus, a waiver by the client

of the work product privilege will not deprive the attorney of

his own work product privilege, and vice versa. What is unclear,

however, is whether a prima facie case of fraud or criminal

activity by the client will be sufficient to invoke the

crime/fraud exception if the party asserting the work product

privilege is an innocent attorney. 

Numerous courts have agreed that, in the specific context of

the work product privilege, an innocent attorney may invoke the

privilege even if a prima facie case of fraud or criminal

activity has been made as to the client. See United States v.

Under Seal (In re Grand Jury Proceedings, Thursday Special Grand

Jury September Term 1991), 33 F.3d 342, 349 (4th Cir. 1994) ("The

record in the case does not indicate that the attorney engaged in

. . . misconduct . . . and, therefore, the attorney may not be

said to have waived his right to assert the work product

privilege."); In re Sealed Case, 676 F.2d 793, 812 (D.C. Cir.

1982) (noting that the crime/fraud exception applies "[u]nless

the blameless attorney is before the court with an independent

claim of privilege."); In re Special September 1978 Grand Jury,

640 F.2d 49, 63 (7th Cir. 1980) (commenting that when the work

product privilege is asserted by an innocent attorney, the

invasion of the attorney's privacy occasioned by divulging his

work product is "not justified by the misfortune of representing
16

a fraudulent client."); In re Grand Jury Proceedings, 604 F.2d

798, 802 n.5 (3d Cir. 1979) (stating that an "attorney, without

knowledge of his client's illegal activity, might nevertheless

properly claim and prevail in asserting a work product

privilege."). 

The district court, although aware of the crime/fraud

exception, does not appear to have rested its decision thereon. 

The government, perhaps sensing the weakness of the district

court's actual bases for its ruling, argues that because the

district court and the parties had a "discussion" about the

applicability of the crime/fraud exception, this court should

feel free to invoke the crime/fraud exception as an alternative

basis for upholding the district court's decision. We decline

this invitation. It would not be prudent to address an issue

which was, at most, the subject of a brief "discussion" in the

trial court.

III. CONCLUSION

 We conclude that: (1) the collateral order doctrine permits

appellate review of the district court's turnover order; (2) the

work product privilege encompasses third party communications;

and (3) the work product privilege extends to protect the

documents in this case despite the fact that the litigation for

which they were prepared has terminated. Thus, we REVERSE and

REMAND to the district court for consideration of whether the
 

4 The government argues in its brief that it has established 

substantial need for the evidence being sought and undue hardship

if the privilege shields third party communications. We decline

the invitation to entertain this argument on appeal, however,

because the district court did not address this issue and we

believe it would be more appropriate to let the district court

make this determination after a full adversarial hearing. 

17

government has made a sufficient showing to overcome the work

product privilege.4