Certiorari Denied October 9, 1973. See 94 S.Ct. 64.
FRIENDLY, Circuit Judge:
Attorneys for Alexander and Elizabeth Kasser
Although the record is exceedingly meagre, the factual background seems to be substantially as follows:
The case springs from a plan of the Manitoba Development Fund (MDF) to
Among the many Kasser corporations involved in The Pas project was one known as Technopulp, Inc., having its offices in northern New Jersey. Shortly after the seizure of Canequip's records in Montreal, Kasser, who was about to sell his house in New Jersey and leave for parts unknown, communicated with his New York City accountant, Simon Horowitz, and directed that, in order to avoid a seizure of corporate and personal records at the offices of Technopulp, these should be removed. These records, contained in three locked filing cabinets, were first deposited in the New Jersey home of Kasser's son, Michael, and then moved into a room at an office building at 248 Lorraine Avenue, Upper Montclair, N.J. Some files that were temporarily in Horowitz' office for use by him in connection with tax audits, as well as some records that Kasser had kept at his home, were also placed there. The lease ran to Joel Mallin, Kasser's New York lawyer, who has paid the rent but has been reimbursed by checks signed by Horowitz on one of Kasser's bank accounts. Mallin has never been in the Lorraine Avenue office. One of the two keys to the office is in the possession of Michael Kasser, who has never used it; the other is in the possession of Horowitz, who has. There are also two keys to the filing cabinets; Horowitz has one and the other has been left in the office. From time to time Horowitz has gone to the office, unlocked the filing cabinets, and made extensive use of the records in his work as accountant for the Kassers and the corporations.
Before learning of the existence of the Lorraine Avenue office, the Assistant United States Attorney in charge of the grand jury investigation of Kasser served on Horowitz, on July 26, 1972, a subpoena duces tecum requiring him to produce before the grand jury seven categories of records. After learning from Horowitz' testimony before the grand jury about the office and Kasser's scheme for concealing records there, a second subpoena duces tecum was served two days later, which was evidently intended to supplant the first. This required Horowitz to produce the entire contents of all three file cabinets in the Lorraine Avenue office. Pursuant to agreement between Horowitz and the Assistant United States Attorney, the three file cabinets were brought to the latter's office, where they were to remain unopened pending the outcome of the contemplated motion to quash. After completing an inventory of their contents,
The motions to quash were brought on for hearing on March 28, 1973. Testimony was taken on that day and again on April 9. At the end of the latter hearing Judge Pollack delivered an oral opinion declining to quash the subpoena except with respect to four items specified in his order of April 12, 1973.
The notion that a subpoena duces tecum may constitute a search forbidden by the Fourth Amendment owes its birth to the famous case of Boyd v. United States, 116 U.S. 616, 621-622, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886), where Mr. Justice Bradley reached this result enroute to holding that the court-ordered production of a person's "private papers" violated the Fourth as well as the Fifth Amendment.
Twenty years later the Supreme Court had occasion to reconsider this portion of the Boyd holding in the almost equally famous case of Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906). See also ICC v. Baird, 194 U.S. 25, 44-47, 24 S.Ct. 563, 48 L.Ed. 860 (1904). By the time Hale v. Henkel was decided, the composition of the Court had almost entirely changed; of the Boyd court only Mr. Justice Harlan remained. Mr. Justice Brown wrote the majority opinion, representing the views of five Justices. They thought "it quite clear that the search and seizure clause of the 4th Amendment was not intended to interfere with the power of courts to compel, through a subpoena duces tecum, the production upon a trial in court, of documentary evidence." 201 U.S. at 73, 26 S.Ct. at 378. On the other hand, such a subpoena might constitute a for-bidden search if its terms were "unreasonable", and the majority, regarding the subpoena duces tecum at issue requiring the production of books and records of the MacAndrews & Forbes Company, which was being investigated under the Sherman Act, held that it was "far too sweeping in its terms," 201 U. S. at 76, 26 S.Ct. at 380. The majority asserted, in what seems to have been a
Three other opinions were written. Mr. Justice Harlan concurring, although agreeing, in more moderate terms, "that the subpoena duces tecum was too broad and indefinite," 201 U.S. at 78, 26 S.Ct. at 380, thought that Hale had no standing to assert the company's rights and also that a corporation was not protected by the Fourth Amendment. Mr. Justice McKenna, also concurring, echoing the point made by Mr. Justice Miller in his dissent in Boyd, see note 3 supra, agreed that a properly limited subpoena was not within the Fourth Amendment but could not believe that a subpoena could "lose this essential distinction from a search warrant by the generality or specialty of its terms." 201 U.S. at 80, 26 S.Ct. at 381. Mr. Justice Brewer, joined by Chief Justice Fuller, dissented; they challenged Mr. Justice Harlan's view concerning the inapplicability of the Fourth Amendment to corporations, referred to Mr. Justice Bradley's opinion in Boyd, and disagreed with the holding that, despite the invalidity of the subpoena, Hale was properly remanded. 201 U.S. at 83-89, 26 S.Ct. 370.
Hale v. Henkel left the applicability of the Fourth Amendment to subpoenas duces tecum in a most confusing state. None of the Justices seemed to think that such a subpoena could be issued only "upon probable cause, supported by oath or affirmation," as would be required for a search warrant. Nevertheless, except for Mr. Justice McKenna, all were of the view that an overbroad subpoena duces tecum against an individual would be an unreasonable search and seizure.
For the next twenty years Supreme Court decisions in this area were mainly concerned with what constituted over-breadth. In a number of cases the Court enforced subpoenas duces tecum which, while somewhat less broad than that in Hale v. Henkel, could scarcely be regarded as narrow. Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 553-554, 28 S.Ct. 178, 52 L.Ed. 327 (1908); Wilson v. United States, 221 U.S. 361, 375-376, 31 S.Ct. 538, 55 L.Ed. 771 (1911); Wheeler v. United States, 226 U.S. 478, 489, 33 S.Ct. 158, 57 L.Ed. 309 (1913); and, perhaps most notable, Brown v. United States, 276 U.S. 134, 142-143, 48 S.Ct. 288, 72 L.Ed. 500 (1928). The movement toward undermining the practical importance of Hale v. Henkel was later furthered in a series of cases relating to administrative subpoenas. The most important is Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946). That case involved subpoenas duces tecum issued by the Wage and Hour Administrator in an investigation of possible violations of the Fair Labor Standards Act, which called for production of all books, papers and documents showing hours worked and wages paid to employees over a five year period, and other documents, apparently necessary to establish the company's coverage under the Act, relating to distribution of newspapers, dissemination of news, sources of news, and sources of advertising outside the state of Oklahoma.
Mr. Justice Rutledge further explained, 327 U.S. at 202, 66 S.Ct. at 502:
And this was followed by a statement, 327 U.S. at 208, 66 S.Ct. at 505 that "the Fourth [Amendment], if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be `particularly described'." (Emphasis supplied)
On the other hand, Oklahoma Press made clear that there still were constitutional restrictions on the scope of subpoenas duces tecum, whether these derived from the Fourth Amendment or the due process clause. For administrative subpoenas these were stated to be, 327 U.S. at 208-209, 66 S.Ct. at 505-506:
Any thought that Oklahoma Press was limited to subpoenas issued by administrative agencies, as distinguished from grand jury subpoenas, was dispelled by United States v. Morton Salt Co., 338 U.S. 632, 642-643, 70 S.Ct. 357, 94 L.Ed. 401 (1950), which, although involving administrative action and distinguishing subpoenas issued in the course of a trial, 338 U.S. at 641-642, 70 S.Ct. at 363-364, justified the agency's demand by an analogy to the grand jury "which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." Although the Morton Salt opinion approved a demand for reports only when "the demand is not too indefinite and the information sought is reasonably relevant,"
The traditional Fourth Amendment formulation was repeated in See v. City of Seattle, 387 U.S. 541, 544, 87 S.Ct. 1737, 1740, 18 L.Ed.2d 943 (1967), where Mr. Justice White said in dictum:
The latest chapter in this history is furnished by the companion cases of United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). In the Dionisio case, relating to grand jury subpoenas to furnish voice exemplars, the Court held, 410 U.S. at 9, 93 S.Ct. at 769:
In Mara, which dealt with a grand jury subpoena requiring the production of handwriting and printing exemplars, the Court reached the same result with respect to what amounted in practical effect to a subpoena duces tecum. These decisions, and the reasoning behind them, suggest that the Court may be moving toward the position, urged by Mr. Justice Miller in Boyd and Mr. Justice McKenna in Hale v. Henkel and strongly intimated in Oklahoma Press Publishing Co. v. Walling, that restriction on overbroad subpoenas duces tecum rests not on the Fourth Amendment but on the less rigid requirements of the due process clause.
However great the intellectual interest of this question, we are not required to decide it. Whatever the dubieties in the Court's opinions in this area over the past decades, some things are tolerably clear: The production of the single invoice required in the Boyd case would not now be invalidated on Fourth Amendment grounds. Indeed, that result was inherent in ICC v. Baird, supra, 194 U.S. 25, 24 S.Ct. 563, 48 L.Ed. 860, and in Hale v. Henkel itself, 201 U.S. at 72-73, 26 S.Ct. 370, 50 L.Ed. 652. And, although the Constitution undoubtedly protects against overly broad subpoenas duces tecum the subpoena issued in Hale v. Henkel would not likely be deemed too broad today in light of Oklahoma Press, Morton Salt, and CAB v. Hermann. See K.C. Davis, Administrative Law Treatise § 3.04, at 174-79 (1958).
With this background we proceed to review the subpoena duces tecum here at issue, in light of the Supreme Court's instructions, notably in Oklahoma Press Publishing Co. v. Walling, supra, 327 U.S. at 208-209, 66 S.Ct. 494, 90 L.Ed. 614, and such decisions of the courts of appeals as McMann v. SEC, 87 F.2d 377 (2 Cir.) (L. Hand, J.) cert. denied, 301 U.S. 684, 57 S.Ct. 785, 81 L. Ed. 1342 (1937), and Schwimmer v. United States, 232 F.2d 855 (8 Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed.2d 52 (1956). Clearly the subpoena was not open to objection on the score of vagueness; Horowitz was told exactly what he must produce. Neither would compliance with the subpoena be unduly burdensome on or "put a stop to the business" of the Kassers, a consideration which, as indicated, was stressed in Hale v. Henkel, supra, 201 U.S. at 76-77, 26 S.Ct. 370; the subpoenaed records were not being used for any business purpose.
What is more troubling is the matter of relevance. The subpoena requires production of all documents contained in the files, without any attempt to define classes of potentially relevant documents or any limitations as to subject matter or time period. The failure to limit the subpoena by subject matter is not necessarily fatal. The grand jury is entitled to consider not only whether the Kassers violated federal criminal law by making the $220,000 transfer from Canequip's Montreal bank account to its New York account to an account in Switzerland in 1971 but whether they used the United States mails or facilities of interstate or foreign transportation or communication in other ways to consummate the alleged frauds. Moreover, any document relating to Kasser's finances, or any that sheds light on the complex corporate structure of Kasser's enterprises, which he allegedly used to conceal the misapplication of funds in The Pas project, may turn out to be relevant to the grand jury's inquiry, and this prospect is somewhat heightened by Kasser's zeal in attempting to put the documents where they would not be found. However, we are told that some of the subpoenaed documents date back to 1951, and it is difficult to see what relevance there could be in papers so long antedating the inception of The Pas project in 1966. Accordingly, we shall limit the subpoena so that in the case of any paper dated prior to January 1, 1966, the government must make a minimal showing that, in light of other evidence that has been obtained, the paper
II. Attorney-Client Privilege
Of the inventory of many hundreds of folders in the file cabinets, fifteen folders contain legends indicating that they may contain communications from or to lawyers.
The record concerning Horowitz' use of the files containing communications between the Kassers and lawyers is meagre. Horowitz first testified that "If the file was labeled `Legal', I had no occasion to look at it," although there may have been times when Kasser showed him a letter from a lawyer. Later, he conceded that he "may have thumbed through them" or "glanced at them", and may have "seen what they said." He claimed, however, that he would read the legal files "[o]nly if there was some specific reason for me to search for something or Kasser had told me that there was a legal opinion on it, and that was rare," since usually he would communicate directly with the attorneys when a legal problem arose.
We held in United States v. Kovel, 296 F.2d 918 (2 Cir. 1961), that, despite the contrary indication in clause (7) of Wigmore's formulation of the attorney-client privilege,
However, the problem in Kovel was different from that here presented. We held there that the privilege extended to communications to an accountant for subsequent use in obtaining advice from a lawyer. Here the advice had already been obtained from the lawyers and the communications were then made available by the client to the accountant for purposes unrelated to the seeking of legal advice. In that light such communications as Horowitz actually reviewed come under the contrary holding in Himmelfarb v. United States, 175 F.2d 924, 939 (9 Cir.), cert. denied, 338 U.S. 860, 70 S.Ct. 103, 94 L.Ed. 527 (1949); see United States v. Kovel, supra, 296 F.2d at 922 n. 3. We deem it clear that subsequent disclosure to a third party by the party of a communication with his attorney eliminates whatever privilege the communication may have originally possessed, whether because disclosure is viewed as an indication that confidentiality is no longer intended or as a waiver of the privilege. See McCormick, Evidence § 93, at 197 (Cleary ed. 1972), and cases there cited; 8 Wigmore, Evidence § 2311, at 599 (McNaughton rev. 1961); Simon, The Attorney-Client Privilege as Applied to Corporations, 65 Yale L.J. 953, 981 (1956); Edison Elec. Light Co. v. United States Elec. Lighting Co., 44 F. 294, 298 (C.C.S.D.N.Y.1890).
This leaves for decision the applicability of the attorney-client privilege to files possibly containing communications that were initially within that privilege, to which Horowitz had unrestricted access at the Lorraine Avenue office, but which he apparently never viewed. While there has been much discussion how far the privilege is destroyed by the presence of third persons at an oral communication, see 8 Wigmore, supra, § 2311; McCormick, supra, § 91, at 188-89, and as to disclosure by persons hearing the conversation,
Certain basic principles, however, are well-established. The privilege finds its justification in the need to allow a client to place in his lawyer the "unrestricted and unbounded confidence", United States v. Kovel, supra, 296 F.2d at 921, that is viewed as essential to the protection of his legal rights. But the privilege stands in derogation of the public's "right to every man's evidence", 8 Wigmore, supra, § 2192, at 70, and as "an obstacle to the investigation of the truth," id., § 2291, at 554; thus, as Wigmore has said, "It ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle." Id. It must be emphasized that it is vital to a claim of privilege that the communications between
In light of these principles, we think that Kasser has failed to discharge his burden. The comments of one district court, United States v. Kelsey-Hayes Wheel Co., 15 F.R.D. 461, 465 (E.D. Mich.1954), are pertinent here:
Cf. 8 Wigmore, supra, §§ 2325-2326, at 633. It is not asking too much to insist that if a client wishes to preserve the privilege under such circumstances, he must take some affirmative action to preserve confidentiality. If Kasser had not wished to keep the communications between himself and his lawyers with him, he could have returned them to the lawyers. At the very least he could have directed Horowitz not to look at them. In contrast he treated the communications between himself and counsel on the same basis as all other records, with Horowitz, who was an independent contractor and not a servant, having a free run to look at what he pleased. It is apparent that Horowitz had the authority to look at any of the legal communications, many of which appear to deal with the tax and financial matters with which he was particularly concerned, if he thought that he might find something relevant to his preparation of Kasser's tax returns or other reports or his management of Kasser's finances during the latter's absence. Under the circumstances of this case, the confidentiality of communications between Kasser and his attorneys had come to an end.
III. Privilege Against Self-Incrimination
The point most strenuously pressed by the Kassers is that ordering Horowitz to produce the documents, other than those constituting corporate records, would violate their privilege against self-incrimination.
Mr. Justice Powell's opinion in Couch
The opinion proceeded to point out that, in Couch as here, "In the case before us the ingredient of personal compulsion against an accused is lacking" since the summons and order "are directed against the accountant. He . . . is the only one compelled to do anything." "Inquisitorial pressure or coercion against a potentially accused person, compelling her, against her will, to utter self-condemning words or produce incriminating documents is absent." 409 U.S. at 329, 93 S.Ct. at 616. Boyd v. United States, supra, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, was distinguished on the basis that there the production order was directed against the accused. Reference was made to United States v. White, 322 U.S. 694, 698, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542 (1944), where the Court said that the privilege "is designed to prevent the use of legal process to force from the lips of the accused individual the evidence necessary to convict him or to force him to produce and authenticate any personal documents or effects that might incriminate him." (Emphasis supplied) In contrast, in Couch "there was no enforced communication of any kind from any accused or potential accused." 409 U.S. at 330-331, 93 S.Ct. at 617.
This analysis flowed directly not only from the language of the self-incrimination clause, "No person . . . shall be compelled in any criminal case to be a witness against himself," but from its history, dating back to the sixteenth century,
Mr. Justice Field, in dissent, said, in a statement that has been often quoted, 161 U.S. at 637, 16 S.Ct. at 655:
These concepts are the basis of Mr. Justice Goldberg's references, in Murphy v. Waterfront Commission, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964), to "our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt" and "our fear that self-incriminating statements will be elicited by inhumane treatment and abuses." Such considerations are of no avail to appellants. The Kassers, at some remote and unknown location in Europe, bear scant
Appellants' reliance is on one of the seven considerations listed by Mr. Justice Goldberg in Murphy:
The relevance of Judge Frank's remark to the Grunewald decision was remote. Halperin, a bagman between persons under investigation for alleged tax frauds and their lawyers, on the one hand, and government employees ready to fix the investigations, on the other, had previously exercised his privilege before a grand jury; the question was whether he could be asked about this when he decided to forego the privilege and testify at trial. In reversing, Grunewald v. United States, 353 U.S. 391, 415-424, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), the Supreme Court made no reference to Judge Frank's "private enclave" phrase or, indeed, to his opinion. The majority's decision did not go on the basis that the reference at trial to Halperin's refusal to testify before the grand jury was an invasion of the privilege, compare 353 U.S. at 425-426, 77 S.Ct. 963 (concurring opinion of Justice Black, joined by Chief Justice Warren and Justices Brennan and Douglas), but on the ground that, since the inference that his testimony at trial was inconsistent with the exercise of the privilege before the grand jury was equivocal, the trial judge had abused his discretion in holding that the probative effect of the evidence outweighed its potentially prejudicial impact. See United States v. Sobell, 314 F.2d 314, 323-324, (2 Cir.), cert. denied, 374 U.S. 857, 83 S.Ct. 1906, 10 L. Ed.2d 1077 (1963). Again, in Murphy v. Waterfront Commission, supra, 378 U.S. 52, 84 S.Ct. 1594, the issue was not the existence of the privilege but the scope of the immunity needed to overcome it.
Despite the eloquence of Judge Frank's phrase, the notion is difficult to accept in the context of the Fifth Amendment. Certainly "the right to a private enclave" lies at the core of the Fourth Amendment's strictures against law enforcement officers. Adopting a rational pattern, this gives the individual almost complete protection against the search and seizure of records of innocent activity and permits the search and seizure of records believed to show the commission of crime only when a proper showing has been made. The self-incrimination clause of the Fifth Amendment admittedly affords no protection against compulsory process reaching into "a private enclave" to obtain non-incriminating evidence necessary to the proper determination of a judicial proceeding, see 8 Wigmore, Evidence § 2192, at 72; § 2286, at 528-31, however personal or confidential this may be. It seems a strange concept of a right to privacy that, although this does not protect the most sensitive communications against disclosure in court so long as they are innocent, it demands absolute immunity for incriminating testimony alone. Despite the repetition of Mr. Justice Goldberg's catalogue of reasons for the privilege in Couch, supra, 409 U.S. at 328, 93 S.Ct. 611, 34 L.Ed.2d 548, see also Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Tehan v. United States ex rel. Shott, 382 U.S. 406, 414 n. 12, 416, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), no Supreme Court decision has upheld a Fifth Amendment claim predicated solely, or even primarily, on the basis of an invasion of privacy, although Mr. Justice Douglas urged this in his dissent in Schmerber v. California, 384 U.S. 757, 778-779, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966),
It is true that Mr. Justice Powell in Couch acknowledged that a different result might be reached in cases where the loss of possession by the claimant of the privilege was "fleeting," as instanced by the hypothetical posed in the oral argument in which possession was lost only while being helped across a street, see 409 U.S. at 333 n. 15, 93 S.Ct. 611, or where the "constructive possession" of the claimant was "so clear . . . as to leave the personal compulsions upon the accused substantially intact." 409 U.S. at 333, 93 S.Ct. at 618. A sufficient reason for a different result in the hypothetical, a situation more likely to be encountered in law school classrooms than in real life, is that any other conclusion would trivialize the privilege. As for the "constructive possession" situation, Mr. Justice Powell neither defined the term in a Fifth Amendment context nor decided what the result would be when the definition was met. Given his insistence on the personal nature of the privilege, it seems highly unlikely that he was viewing the term as broadly as courts have done in other contexts, e. g., in applying the inference of knowledge of foreign importation formerly arising from possession of heroin under 21 U.S.C. § 174, see United States v. Hernandez, 290 F.2d 86, 90 (2 Cir. 1961). That the majority meant what it said in stating that it was merely leaving the question open appears from its refusal, 409 U.S. at 333-334 n. 16, 93 S.Ct. 611, either to approve or disapprove a constructive possession claim on the facts of Schwimmer v. United States, supra, 232 F.2d 855,
Even if a "constructive possession" sufficient to give rise to the Fifth Amendment privilege would sometimes be recognized, it would be hard to think of a poorer case for recognition than this one. The Kassers have not had actual possession of the records for two years, have never had actual possession of them in their present situs and, from all that appears, do not expect to have it in the near future. It is Horowitz who has both actual possession of the files and complete access to them, facts which, in this context, are inconsistent with the Kassers' claim of constructive possession.
The district court is directed promptly to amend its order with respect to the scope of the subpoena duces tecum as indicated in Part I of this opinion. As so modified, the order will stand affirmed. The stay will be extended for ten days from the filing of this opinion and if an application for a further stay is filed with the Supreme Court within that period, until the determination thereof. No costs.
The order also provided that if a dispute should arise as to whether any documents fell within these exceptions, they should immediately be submitted to the Court for in camera inspection and that documents turned over pursuant to the order should not be disclosed to Canadian criminal authorities except pursuant to motion on notice.
Roberts & Holland is a well-known firm of tax attorneys. The others are labeled as follows:
2. Kasser — Roberts & Holland
3. Kasser — Joel Mallin file
4. Siace — Foreign Corps. containing letters from Roberts & Holland — Kasser tax information return forms — Celanese tax information return forms, and Celanese Correspondence and Siace data
5. Kasser — Radio Hill letter from Roberts & Holland and papers re: Siace — Radio Hill
6. Blue Construction agreement with Technopulp Machinery Letter from Roth Carlson, attorneys Letter to Chemical Bank Unrelated photostats
7. Kasser Radio Hill — Celanese — Letters from attorneys and legal documents re: Sale & Redemption of shares
8. Kasser letters from attorneys and other tax information 1099 forms relating to Kasser — Radio Hill
9. Kasser — Commerce Dept. forms filed — correspondence with Commerce Dept. and letters from attorneys
10. Legal correspondence from Trezona to Kasser
11. Legal correspondence to Kasser
12. RS legal correspondence
13. Legal correspondence re: River Sawmills
14. Legal opinion re: timber contracts
15. Legal correspondence to Mochary from Thompson Dilts & Co.
We need not and do not here decide the extent to which a corporation or other business organization wishing to retain its privilege with respect to communications with its counsel must keep these in segregated files. In the corporate context, the issue is complicated by the fact that a corporation can act only through its agents; the question largely turns on whether, for purposes of the privilege, lower-ranking employees should be regarded as the "client" or as third-parties from whom confidential communications must be kept. See Simon, supra, 65 Yale L.J. at 982-85. Even if the latter be the case, determination whether there has been a loss of confidentiality may depend on the facts of each particular case. Lower-ranking employees may not as a practical matter have access to the files, or may lack authority to go through them; special precautions to preserve strict confidentiality may prove more burdensome than they would have been in this case.
has been deprived of all vitality, as it certainly has been attenuated, by such decisions as Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), Emspak v. United States, 349 U.S. 190, 198 n. 18, 75 S.Ct. 687, 99 L.Ed. 997 (1955), and Malloy v. Hogan, 378 U.S. 1, 11-14, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). See also McCormick, Evidence § 139 (Cleary ed. 1972), and the discussion in United States v. Reynolds, 345 U.S. 1, 8-9, 73 S.Ct. 528, 97 L.Ed. 727 (1953). The Fifth Circuit recently approved an approach quite similar to that set out in Brown. United States v. Roundtree, 420 F.2d 845, 852 (5 Cir. 1969) (Wisdom, J.).
but went on to observe that
In Schwimmer, the appellant, an attorney, had retired from active practice, closed his office and moved out of the state. He had stored his files in the plant of the Dean Rubber Manufacturing Company. The subpoenas to produce the files were directed to the Company. Although the relationship of Schwimmer to the Company was not made clear by the court of appeals, the record indicates that the Company was simply the custodian of the records for storage purposes and had no knowledge of the contents of the files.