In re Sealed Case
Citation: Multiple cases bear this name in federal courts; the most commonly cited in professional responsibility is from the D.C. Circuit (various years).
Note on identification: "In re Sealed Case" is a caption applied to numerous sealed grand jury and privilege matters in federal courts, particularly in the D.C. Circuit. The specific case assigned in professional responsibility courses typically addresses the crime-fraud exception to the work product doctrine. If your course assigned a specific citation, verify against that citation. The doctrine described below reflects the prevailing rules as articulated across these decisions.
Facts
In the most commonly taught version, a grand jury investigation subpoenaed attorney documents prepared in anticipation of litigation or in the course of representation. The government argued that the crime-fraud exception defeated both the attorney-client privilege and work product protection because the attorney’s services were sought to facilitate an ongoing or future crime or fraud.
Issue
Does the crime-fraud exception apply to work product doctrine protection, and what showing must the government make to pierce work product protection on crime-fraud grounds in a grand jury proceeding?
Holding
The D.C. Circuit (and most courts) hold that the crime-fraud exception applies to both attorney-client privilege and work product doctrine. To pierce work product protection, the government must make a prima facie showing that the attorney’s work was used in furtherance of a crime or fraud — a showing that, while similar to the privilege standard, is applied with particular rigor given the heightened protection work product receives.
Rule
The crime-fraud exception to the attorney-client privilege and work product doctrine applies when a client sought or obtained an attorney’s assistance to engage in what the client knew or reasonably should have known was a crime or fraud. The exception is not triggered by the fact that the attorney’s work later became relevant to a crime; the communication or work product must itself have been used to further the criminal or fraudulent purpose.
Significance
In re Sealed Case (and the body of D.C. Circuit grand jury privilege cases bearing that caption) is significant for understanding how the crime-fraud exception interacts with work product protection — an issue that goes beyond the standard crime-fraud analysis for attorney-client privilege alone. The cases clarify that no privilege, including work product, is absolute; attorneys cannot become unwitting instruments of fraud or crime under the shield of privilege. These cases are often taught alongside Upjohn to provide a complete picture of the limits of attorney-client and work product protection.