Doe Not A Deer

The United States Court of Appeals for the Fourth Circuit dismissed the appeal of an indicted attorney for lack of appellate jurisdiction and affirmed in part discovery rulings of the district court

Appellant John Doe is a medical malpractice attorney. While representing a client, Jane Roe, he engaged in settlement negotiations with the University of Maryland Medical System (UMMS). Four additional appellants assisted Doe in his representation of Roe: Law Firm 1; Lawyer 1 (a principal of Law Firm 1); Law Firm 2; and Lawyer 2 (a principal of Law Firm 2).

The negotiations between Doe and UMMS proceeded poorly, as what Doe purported to be a good faith, legal settlement offer was perceived by UMMS as surreptitious extortion. Generally speaking, Doe sought $25 million for Roe. But, among other things, Doe also made any settlement between Roe and UMMS contingent on his personal receipt of an additional $25 million that would effectuate his retention by UMMS as a private consultant of sorts. Also accompanying the settlement offer was Doe’s threat of initiating a smear campaign targeting the hospital system if it did not acquiesce to his terms.

A grand jury indicted Doe, charging him with attempted extortion in violation of 18 U.S.C. §§ 1951 and 1952. While the grand jury investigation remained ongoing, a discovery dispute ensued in Doe’s active criminal case, culminating in a district court’s denial of the government’s request for compelled reciprocal discovery. Shortly thereafter—at the government’s request—the grand jury issued multiple subpoenas duces tecum to the lawyers and firms that assisted in Doe’s representation of Roe—and in the formation of the alleged extortion scheme. Doe and Roe moved to quash the subpoenas, which the district court overseeing the grand jury proceedings denied. That court then granted in part a subsequent motion filed by the government to compel production.

Doe and Roe now ask this Court to reverse the district court’s orders first denying their motions to quash and then compelling production. Law Firm 2 and Law Firm 1 also ask us to reverse the district court’s order compelling production, but only insofar as it pertains to one particular privilege log. For the reasons that follow, we dismiss the appeal as to Doe for lack of appellate jurisdiction. We otherwise affirm the district court on all remaining grounds.

Related bar complaint

On October 22, 2018, Doctor 2 and Employee 1 filed a complaint against Doe with the Attorney Grievance Commission of Maryland (AGC). The complaint included allegations of attempted extortion. On April 20, 2020, the AGC directed Bar Counsel to petition for disciplinary or remedial action in the Court of Appeals of Maryland. Bar Counsel filed the petition on July 13, 2020, and that proceeding is currently stayed.

After indictment, the attorney declined to participate in reciprocal discovery and the government attorney was “incensed”

The district court agreed with his decision and then

According to Doe, “[i]mmediately after [the district court] rejected the [g]overnment’s discovery requests, the prosecutors resorted to the grand jury [in No. 21- cv-556] for the information and material they deemed necessary for the case against [Doe] [in Crim. No. GLR-20-0337].” Opening Br. 23. On February 18, 2021, the grand jury issued subpoenas duces tecum to Law Firm 2, Law Firm 1, and Lawyer 3—approximately two months after the district court’s oral decision regarding the discovery dispute in Doe’s criminal proceeding. On March 3, 2021, Doe moved to intervene and to quash the subpoenas. He argued that the government was “abusing the grand jury process by using the grand jury subpoena power for the dominant purpose of preparing for motions and trial, and for gathering evidence, on an already pending indictment.” J.A. 21. In April 2021, Roe also moved to intervene and to quash. On June 3, 2021, the district court overseeing the grand jury investigation in No. 21-cv-556 granted the motions to intervene but denied the motions to quash. The court further directed Doe and the subpoena recipients to respond to the subpoenas and provide privilege logs for all potentially privileged information.

This appeal involves the resolution of the ensuing dispute over discovery.

We begin by laying out the parties’ positions. Doe and Roe appeal the district court’s denial of their motions to quash and its order compelling production. Law Firm 2 and Law Firm 1 only appeal the district court’s order compelling production insofar as it ordered production of documents held by Lawyer 3 over which Law Firm 2 and Law Firm claimed work-product privileges. Neither Law Firm 2 nor Law Firm 1 appeal the district court’s order compelling them to produce documents on their own privilege logs.

With respect to the motion to quash, Doe and Roe argue that the court abused its discretion by refusing to conduct in camera review of documents that they contend would have proven that the government’s dominant purpose in seeking the grand jury subpoenas was trial preparation in Doe’s criminal case—instead, it found that they failed to meet their burden of proving an abusive dominant purpose. They also argue that the court abused its discretion by denying the motions to quash while ignoring facts and surrounding circumstances that cast doubt on the legitimacy of the subpoenas—including the fact that the subpoenas came on the heels of a contentious discovery dispute in Doe’s criminal case.

Here

Here, the district court did not clearly err by concluding that abusive discovery was not the government’s sole or dominant purpose when it sought the disputed subpoenas.

And

the district court correctly construed the consultancy agreement and related tangible work product as not arising because of the prospect of litigation. Thus, the court properly concluded that work-product privilege does not bar production.

Crime fraud

we conclude that Roe’s innocence does not bar application of the crime fraud exception under these circumstances.

Waiver

Lastly, we consider the attorney-client privilege. Appellants argue that the district court erred by finding that Roe waived her attorney-client privilege by cooperating with Bar Counsel—pursuant to Maryland Rule 19-707(b)(1)—during Maryland’s ethics investigation into Doe. The government responds that the district court properly found that Roe’s numerous voluntary disclosures of substantive discussions with Doe to Bar Counsel effectively waived any attorney-client privilege…

Here, the district court’s conclusion that Roe waived the attorney-client privilege relied on findings of fact that we review for clear error—and the court did not clearly err. First, the investigation during which Roe provided an interview implicated only Doe, and Roe was under no obligation to participate. She did so voluntarily. Second, her voluntary disclosures went to the heart of Doe’s representation of her and included express discussion of the consultancy scheme.

Conclusion

Because we lack jurisdiction to consider Doe’s arguments given the Supreme Court’s effective narrowing of the Perlman doctrine, we dismiss him from this appeal. We otherwise discern no reversible error below, and the parties must proceed to comply with the disputed subpoenas duces tecum in accordance with the district court’s order compelling production and this opinion.

AP has a story on the controverial prosecutor who handled this appeal. (Mike Frisch)