473 F.2d 840 (8th Cir. 1973)
In 1972 Frank J. Duffy, an attorney for Northern Natural Gas Company and its wholly owned subsidiaries, interviewed individuals who were not company employees concerning alleged bribe payments to public officials.1 He prepared notes and memoranda summarizing those conversations in anticipation of litigation.2 A federal grand jury in the District of Nebraska began an inquiry into the same subject matter.3 Duffy appeared before the grand jury.4 He disclosed the names of every person he had interviewed in his capacity as company counsel.5 He answered questions about communications with company employees.6 But he refused to disclose the content of his conversations with the non-employee informants or to produce his personal notes and memoranda from those contacts.7
The district court entered an order directing Duffy to answer responsively before the grand jury all questions relating to information furnished by the non-employee informants.8 The order also required him to bring with him all notes, memoranda, or other records of those contacts.9 Duffy disobeyed the order and was adjudged in civil contempt under 28 U.S.C. § 1826.10 The contempt adjudication followed an earlier, similar order by the same district judge.11 That earlier order had produced an interlocutory appeal dismissed by the Eighth Circuit.12 A mandamus petition was denied because the record at that time did not adequately identify the specific files or circumstances involved.13
After the record was clarified, the district court ruled that the attorney-client privilege protected communications with company employees.14 However, the work product doctrine, although applicable to the non-employee interviews, was overcome by the government's interest in obtaining the information.15 The order therefore required disclosure of factual assertions obtained from the non-employees while protecting Duffy's legal opinions and conclusions.16 Only Duffy's personal recollections and summarizing notes were at issue.17 The record contained no signed statements by interviewees or verbatim transcripts of their remarks.18 The identities of the non-employees remained known and accessible to the grand jury.19
Duffy appealed the contempt judgment to the Eighth Circuit.20 The court had before it the clarified factual record showing that all non-employee contacts occurred in preparation for anticipated litigation.21 The government sought only the content of those communications rather than any documents prepared or signed by the informants themselves.22
Whether the work product doctrine applies to grand jury proceedings?23
The work product doctrine is a common law privilege protecting an attorney's notes, memoranda, and personal recollections prepared in anticipation of litigation; because common law privileges apply to grand jury witnesses under precedents recognizing exemptions grounded in substantial individual interests that outweigh the public interest in the search for truth, the doctrine extends to grand jury proceedings.24
Yes. The established facts show that Duffy prepared summarizing notes and memoranda of non-employee interviews in anticipation of litigation over alleged bribe payments by his corporate client.25 The court applied the doctrine's common law origins and policy rationales from Hickman v. Taylor to these facts, holding that the privilege mitigates the general duty of grand jury witnesses to disclose all they know.26
The work product doctrine applies to grand jury proceedings.27
Whether an attorney's memoranda and recollections of conversations in anticipation of litigation with non-employees of his corporate client are protected from compelled disclosure before a grand jury under the work product doctrine?28
An attorney's personal recollections, notes, and memoranda summarizing conversations with third-party witnesses in anticipation of litigation constitute core work product that receives absolute protection from compelled disclosure, distinct from any conditional protection that might yield to good cause.29
Yes. The established facts establish that only Duffy's personal recollections and summarizing notes of non-employee contacts were at issue, with no signed statements or verbatim transcripts involved and all contacts occurring in preparation for anticipated litigation.30 The court applied the absolute protection rule for such attorney work product to these facts, distinguishing it from discoverable witness statements.31
The attorney's memoranda and recollections are protected from compelled disclosure before the grand jury under the work product doctrine.32
Whether the government made a sufficient showing of good cause to overcome work product protection for an attorney's personal recollections and summarizing notes of non-employee interviews?33
A party seeking an attorney's personal work product must demonstrate good cause by showing that the information is not available from other sources.34 The need must outweigh the policy interests in protecting attorney preparation.35 Mere speculation that different information might exist fails to satisfy this standard.36
No. The established facts reveal that the non-employee informants remained known and accessible to the grand jury and that the government offered only the conjecture that something different might have been said to Duffy.37 The court applied the good cause standard to these facts and found the showing inadequate to overcome even conditional protection, let alone the absolute protection applicable here.38
The government did not make a sufficient showing of good cause to overcome work product protection.39