Work Product Doctrine Does Not Extend to Tape Recording
In an effort to turn the tables on a person believed to be cooperating with the government, an attorney may direct his client to record conversations with the informant, hoping to hoard those recordings for later trial use against the informant, secure in the belief that the attorney-directed recordings are protected from the prying eyes of the government by the work product doctrine. In the Second Circuit, at least, that attorney would be wrong.
In In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180 (2nd Cir. 2007), cert. denied, 2008 WL 2047559 (2008), an attorney opposed a grand jury subpoena seeking the tapes' production on the ground that the recordings constituted opinion attorney work product, entitled to the greatest level of protection, because the topics raised by his client with the other party and captured on tape reflected the attorney’s mental impressions and theories. The Second Circuit rejected the argument, largely because of a procedural flaw: the attorney did not produce the recordings for in camera review by the district court, so the only support for any finding of opinion work product was the attorney’s conclusory assertions about the recordings’ content.
Protected only as lesser fact work product prepared in anticipation of litigation, the court of appeals agreed with the district court that the government had shown substantial need for the information and an inability to obtain the equivalent elsewhere. The district court’s order directing compliance with a grand jury subpoena for the recordings was affirmed.
It is unclear from the opinion why the tape recordings were not reviewed by the district court, that is, whether the judge did not ask for them or the attorney simply did not volunteer them. Except in the unusual situation, it would seem that the better practice in arguing for opinion work product is to let the judge see, or hear, exactly what it is that purports to reflect the attorney’s mental impressions.
