JILL PRYOR, Circuit Judge:
Drummond, Inc., sued Conrad & Scherer, LLP ("C&S"), a law firm, and its partner, Terrence Collingsworth, for defamation. In this appeal, C&S seeks interlocutory review of the district court's order concluding that the crime-fraud exception could defeat the firm's and Collingsworth's assertions in discovery of attorney-client privilege and attorney work product protection. The district court made a preliminary determination that the crime-fraud exception may apply to overcome their assertions of privilege and attorney work product protection and ordered a special master to perform an in camera review to determine whether the crime-fraud exception does apply. Although non-final orders generally are not immediately appealable, the district court certified its order for immediate appeal, and a motions panel of this Court granted C&S permission to bring an interlocutory appeal under 28 U.S.C. § 1292(b).
We do address the other issue on which interlocutory review was granted, whether the crime-fraud exception may be applied to overcome C&S's assertion, as a defendant in this case, that its materials related to other lawsuits where it served as counsel are protected as attorney work product when the firm's clients in those lawsuits were innocent of any wrongdoing.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal arises out of a complex dispute that began when Collingsworth, a C&S partner, represented Colombian citizens who sued Drummond, an Alabama company, in federal court in Alabama, alleging that Drummond had supported paramilitary groups in Colombia that murdered private citizens. To provide the necessary context for our discussion, we recount the relevant history of the Colombian citizens' lawsuits against Drummond and Drummond's later lawsuit against Collingsworth and C&S.
A. Collingsworth and C&S's Representation of Colombians Suing Drummond
In his law practice, Collingsworth primarily represents victims of human rights abuses. He joined C&S as a partner to litigate such cases. Although the firm is based in Florida, he worked out of and managed its Washington D.C. office.
Collingsworth acted as the lead C&S attorney in these cases. William Scherer, the firm's managing partner, and other C&S attorneys entered appearances in the cases. As managing partner, Scherer delegated to Collingsworth the authority to litigate the cases.
To support the claims against Drummond, Collingsworth developed evidence connecting Drummond to the paramilitary's violent actions. He secured testimony from several former members of the paramilitary, including Jairo de Jesus Charris, Libardo Duarte, Jose Gelvez Albarracin, Alcides Manuel Mattos Tabaraes ("Samario"), and Jhon Jairo Esquivel Cuadrado ("El Tigre"). These witnesses offered testimony that implicated Drummond. Additionally, Collingsworth relied on testimony from Jamie Blanco, who worked as a contractor for Drummond in Colombia. Blanco testified that Drummond sent him money that he was directed to use to pay the paramilitary for security services.
In the alien tort cases, Drummond sought discovery about whether the plaintiffs or their attorneys had paid or given anything of value to these witnesses in exchange for their testimony. In response, the plaintiffs identified three witnesses who had been paid — Charris, Duarte, and Gelvez.
Ultimately, Drummond prevailed in each of the alien tort cases.
B. Drummond's Defamation Action Against Collingsworth and C&S
Drummond Files a Defamation Action and Seeks Discovery About Witness Payments.
While the alien tort cases were pending, Collingsworth wrote letters on C&S stationary
At the beginning of the defamation case, Collingsworth and C&S were jointly represented by outside counsel. Because of Collingsworth's central role in the underlying litigation and in writing the allegedly defamatory letters, he was the C&S partner primarily responsible for working with outside counsel. In their joint answer, Collingsworth and C&S denied liability and raised several defenses, including that the statements in the letters were true and that they had not acted maliciously.
Attempting to prove that Collingsworth had known the statements in his letters were false and that he had acted with malice, Drummond served discovery requests about the methods Collingsworth and his litigation team had used in the alien tort cases to secure testimony from the witnesses, including information about any payments made to the witnesses. Collingsworth and C&S responded that they had previously disclosed all payments made to witnesses, pointing to their disclosures that payments had been made to Charris, Duarte, and Gelvez. In hearings and other filings with the district court, Collingsworth and C&S's outside counsel repeated that only Charris, Duarte, and Gelvez had received payments.
Through Discovery, Additional Witness Payments Are Uncovered.
As it turns out, all of these statements made in discovery were false. Eventually, Collingsworth and C&S admitted that El Tigre, Samario, and Blanco had also received payments. The payments were uncovered after Drummond subpoenaed a law firm that had served as C&S's co-counsel in the alien tort cases. That law firm produced an email showing that Collingsworth had asked co-counsel and Scherer for permission to pay approximately $100,000 in attorney's fees on Blanco's behalf in a pending criminal case in Colombia. The co-counsel, copying Scherer, directed Collingsworth not to pay the fees because they would have to disclose these payments in the alien tort cases, which would damage Blanco's credibility and likely be seen as bribery.
Drummond used this email, which Collingsworth and C&S had failed to produce in discovery, to argue that Collingsworth and C&S had been hiding information about witness payments. A few months later, Collingsworth and C&S admitted that El Tigre, Samario, and Blanco had received payments.
At Collingsworth's direction, C&S had sent and continued to send Samario and El Tigre $1,000 each per month. C&S wired the money from its operating account to an intermediary in Colombia, who delivered the money to Samario and El Tigre. C&S began making these payments during the alien tort cases and continued to make them while the defamation case was ongoing.
Multiple partners and employees at C&S were aware of these payments. Shortly after the monthly payments began, Collingsworth sent an email to his co-counsel in the alien tort cases, copying Scherer, informing them that El Tigre and Samario would receive money each month until they were deposed. This email was forwarded to Scherer's son, another C&S
Blanco received no money directly from C&S or Collingsworth; instead, he received money from Albert van Bilderbeek, another Colombian client of Collingsworth's. After being told by co-counsel not to pay Blanco's attorney's fees, Collingsworth introduced Blanco to van Bilderbeek. Van Bilderbeek subsequently paid $150,000 of Blanco's legal fees. While these payments were being made, Collingsworth served as intermediary between Blanco and van Bilderbeek. At one point, Blanco — waiting for money from van Bilderbeek — told Collingsworth that he would not finalize his declaration until van Bilderbeek paid him. After van Bilderbeek paid, Blanco signed a declaration that Collingsworth used in the alien tort cases.
Drummond Seeks Sanctions and Raises the Crime-Fraud Exception.
After C&S and Collingsworth disclosed these additional witness payments, Drummond moved for sanctions, asserting that Collingsworth and C&S had made false statements to the court by failing to disclose these payments.
At his deposition, Collingsworth admitted that there had been payments made to witnesses that he and C&S had failed to disclose. With regard to the payments to El Tigre and Samario, Collingsworth testified that he had forgotten about the payments to the witnesses because they were made through an intermediary. With regard to van Bilderbeek's payments to Blanco for legal fees, Collingsworth claimed that he failed to disclose the payments because he thought that he had only been asked to identify payments that he made directly to witnesses, rather than payments made by third parties like van Bilderbeek. Scherer, who was deposed as the representative of C&S, explained that he had not known about the witness payments and that once he learned of the payments, he made sure that C&S promptly disclosed them to the court.
Although Collingsworth and Scherer provided this general information, they refused to answer many categories of questions posed in discovery, claiming that the information Drummond sought was protected by the attorney-client privilege or the attorney work product doctrine. For example, Collingsworth refused to answer questions regarding communications about the witness payments that he had had with Ivan Otero, a Colombian attorney who served as a conduit for payments from C&S to El Tigre and Samario, or to identify who was involved in drafting the filings in the defamation action that contained misrepresentations about the witness payments. And Collingsworth and Scherer refused to answer questions about what caused them to realize that they had made inaccurate statements about the witness payments or the process that led them to correct their misstatements, claiming the information sought was privileged or protected
The District Court Applies the Crime-Fraud Exception.
After a hearing, the district court issued an order applying the crime-fraud exception to both Collingsworth and C&S. In reaching this conclusion, the district court followed our circuit's two-part test for applying the crime-fraud exception and determined that Drummond had (1) made a prima facie showing that Collingsworth and C&S had engaged in criminal or fraudulent conduct when seeking the advice of counsel and creating attorney work product in the alien tort and defamation cases and (2) identified categories of communications and attorney work product that may not be protected from discovery because they were used to further a crime or fraud.
First, the district court pointed to evidence that both Collingsworth and C&S had engaged in criminal or fraudulent conduct when they sought the advice of outside counsel in the defamation case and created attorney work product in both the alien tort and defamation cases. The district court determined that the crime-fraud exception's first prong was satisfied as to three crimes: fraud on the court, witness bribery, and suborning perjury. The court emphasized that it was not holding that a crime or fraud actually had been committed, but only that a prima facie case had been established.
In determining that there was a prima facie case of fraud on the court, the district court identified numerous false statements Collingsworth and C&S had made to the court. The court identified misstatements regarding witness payments that Collingsworth had made to the court in the alien tort cases when he was acting as a C&S partner, as well as misstatements that Collingsworth and outside counsel had made in the defamation action. The court found that both Collingsworth and C&S had made these false statements knowingly.
In a lengthy footnote, the district court explained that there was sufficient evidence to find that C&S had knowingly made misstatements. First, the court explained that because Collingsworth was a partner in C&S and was acting for the firm's benefit, his actions and knowledge were attributable to the firm under agency principles. Second, the court cited evidence showing that other firm partners and employees, including Scherer, had been aware of the monthly payments being made to the witnesses and explained that it was unbelievable that no one at the firm other than Collingsworth had known of the payments.
As for the witness bribery and suborning perjury crimes, the district court determined that Drummond had established a prima facie case with evidence showing that the witnesses had received payments from the litigation team under suspicious circumstances. The court once again relied on agency principles to establish the prima facie showing that C&S had bribed witnesses and suborned perjury, explaining that every action taken by Collingsworth in the case had been in his capacity as a partner and agent of C&S.
The district court then turned to the second prong of the test, which required a showing that the communication was made or attorney work product was created in
After determining that the crime-fraud exception may apply, the district court ordered a special master to review in camera the documents that Collingsworth and C&S claimed were privileged or protected as attorney work product to determine whether each individual document was in furtherance of or closely related to a fraud on the court or crime and therefore should be produced to Drummond. The court also set forth a procedure for the special master to assess a witness's assertion of attorney-client privilege or attorney work production protection in a deposition. The court directed that when necessary a witness should give in camera testimony, potentially ex parte, so that the special master could appropriately assess any privilege issues while limiting disclosure only to information used or created in furtherance of the crime or fraud.
After explaining why the crime-fraud exception applied, the district court certified that its order involved controlling questions of law as to which there may be a substantial ground for difference of opinion and that an immediate appeal may materially advance the litigation. In addressing certification, the district court did
A Motions Panel of This Court Granted C&S Permission for an Interlocutory Appeal.
Collingsworth and C&S filed separate petitions for review with our Court, seeking permission to file interlocutory appeals from the district court's order. A motions panel denied Collingsworth's petition. A separate motions panel granted C&S's petition as to the following two questions:
II. BACKGROUND ON THE ATTORNEY-CLIENT PRIVILEGE, ATTORNEY WORK PRODUCT DOCTRINE, AND CRIME-FRAUD EXCEPTION
The issues in this appeal center on how the attorney-client privilege, attorney work product doctrine, and crime-fraud exception apply to a partnership and what role, if any, agency principles play in the application of the crime-fraud exception. To provide context for these issues, we pause for background on the attorney-client privilege and the attorney work product doctrine, as well as the crime-fraud exception.
The attorney-client privilege attaches, of course, to confidential communications between an attorney and client for the purposes of securing legal advice or assistance.
Attorney work product protection extends to material obtained or prepared by counsel in the course of their
But the protection afforded to work product is not absolute. Discovery may be had into factual work product upon a party showing "substantial need for the materials to prepare its case" and that it "cannot, without undue hardship, obtain their substantial equivalent by other means." Fed. R. Civ. P. 26(b)(3)(A). Greater protection is given to the attorney's opinion work product — that is, materials containing "the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Fed. R. Civ. P. 26(b)(3)(B). Such materials "enjoy a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances." Cox, 17 F.3d at 1422 (internal quotation marks omitted).
The crime-fraud exception allows a party — in rare circumstances — to obtain discovery that otherwise would be protected by the attorney-client privilege or the attorney work product doctrine. The crime-fraud exception applies when a two-part test is satisfied:
In re Grand Jury Investigation, 842 F.2d at 1226. Stated simply, the crime-fraud exception removes the "seal of secrecy" from attorney-client communications or work product materials when they are made in furtherance of an ongoing or future crime or fraud. Zolin, 491 U.S. at 563, 109 S.Ct. 2619; see Cox, 17 F.3d at 1422 (recognizing that the crime-fraud exception "applies to work-product in the same way that it applies to the attorney-client privilege"). When the crime-fraud exception applies, an attorney's opinion work product is discoverable. Cox, 17 F.3d at 1422. With these principles in mind, we now turn to the questions raised in this appeal.
III. SCOPE OF INTERLOCUTORY REVIEW UNDER § 1292
The federal courts of appeals "have jurisdiction of appeals from all final decisions of the district courts of the United States." 28 U.S.C. § 1291. "A final decision is one by which a district court disassociates itself from the case...." Doe No. 1 v. United States, 749 F.3d 999, 1004 (11th Cir. 2014) (internal quotation marks omitted). It "ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment." Id. (internal
There are, however, exceptions to the rule that only final decisions are appealable. We have discretion to hear interlocutory appeals from district court orders under the certification procedure in 28 U.S.C. § 1292(b):
28 U.S.C. § 1292(b). We have explained that when deciding whether to permit an appeal under § 1292(b) after a district court has entered an order certifying the appeal and a party has filed a timely application for permission to appeal, we are considering not whether we have jurisdiction to hear the appeal but instead whether to exercise our discretion under § 1292(b). See McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1255 (11th Cir. 2004).
Our precedent identifies several principles to guide us when deciding whether to exercise our discretion under § 1292(b) to allow for a rare interlocutory appeal. Id. at 1264. In general, we exercise our discretion only when (1) the appeal presents a pure question of law, (2) the question is controlling of at least a substantial part of the case, (3) the district court identifies the question in its order, (4) there are substantial grounds for differences of opinion on the question, and (5) resolution of the question may reduce the amount of litigation necessary on remand. Id. But even if all of these factors are present, we still have discretion to disallow the appeal. See id.
After considering these guiding principles, we conclude that the motions panel improvidently granted permission to appeal, vacate in part that earlier order, and decline to exercise our discretion to decide the first question presented in this appeal. Paraphrased, the first question asks whether a court may apply the crime-fraud exception to a partnership by imputing to the partnership the actions and knowledge of a partner. C&S argues that the district court improperly used agency principles to impute Collingsworth's intent to commit a fraud or crime to C&S in determining that a crime or fraud occurred and that the relevant communications or work product were made in furtherance of that fraud.
At first blush, the core issue of whether, in applying the crime-fraud exception, a court may impute a partner's knowledge and intent to a partnership appears to raise a purely legal question. But C&S concedes that in some circumstances, such as when a firm's managing partner or partner charged with responsibility to make the decisions at issue participates in the fraud, a partner's intent may be imputed to the partnership. So it cannot be that this appeal presents the abstract, purely legal issue whether agency principles ever may be used to impute a partner's knowledge and intent to a partnership
Instead, C&S seeks in effect to have us review whether, given the nature of Collingsworth's relationship with the firm, the record supported the district court's application of agency principles to impute his intent and actions to C&S. This question is not purely one of law about whether agency principles can be imputed for the purpose of applying the crime-fraud exception.
To the contrary, the question posed here requires a fact-specific inquiry into whether the evidence in this case — which showed, at a minimum, that Collingsworth was the C&S partner to whom Scherer, the managing partner, had delegated responsibility for the alien tort cases and who also served as the primary point of contact for the firm's outside counsel in the defamation cases — is sufficient to support the application of agency principles in the crime-fraud context. To answer it would require the court to apply law to the particular facts of the case and thus to take a deep dive into this case's voluminous record. The purpose of § 1292(b) is not to provide interlocutory appellate review of such fact-driven issues. See McFarlin, 381 F.3d at 1262. Accordingly, we conclude that permission to appeal on this issue was improvidently granted, and we decline to exercise our discretion to hear an interlocutory appeal related to the first question.
IV. LEGAL ANALYSIS
We now turn to the second question raised in this appeal, which we do exercise our discretion to answer. To clarify the question, we rephrase it slightly as follows:
With this question, C&S in effect seeks to bar the disclosure of work product materials created in the alien tort actions, claiming that because its clients in those cases were innocent of any wrongdoing, work product protection is maintained despite the firm's participation in the wrongdoing.
We hold that the district court properly concluded that the crime-fraud exception may be applied because illegal or fraudulent conduct by an attorney alone may suffice to overcome attorney work product protection.
To support its contrary position, C&S cites several cases holding that an innocent client's privilege cannot be overcome by the crime-fraud exception. But most of these cases consider the scope of the attorney-client privilege rather than the relationship between the crime-fraud exception and the attorney work product doctrine. Moody, the case on which we relied in Parrott, warrants further discussion, however.
In Moody, the D.C. Circuit recognized that the work product doctrine "create[d] a legally protectable interest in non-disclosure in two parties: lawyer and client." 654 F.2d at 801. The D.C. Circuit explained that "the conclusion that an attorney has no right to object to the disclosure of work product made possible by his misconduct does not necessarily mean that the work product privilege is inapplicable to such documents" because "the client's interest in preventing disclosures about his case may survive the misfortune of his representation by an unscrupulous attorney." Id. C&S relies on this reasoning to argue that the crime-fraud exception may not be used to pierce work product protection when the underlying client is innocent because the innocent client may still invoke the doctrine.
We disagree with C&S's position. Moody went on to explain that to determine whether an innocent client may rely on the work product doctrine to shield materials after his attorney engaged in a crime or a fraud, "[a] court must look to all the circumstances of the case ... to decide whether the policy favoring disclosure out-weighs the client's legitimate interest in secrecy" and prevent disclosure when it "would traumatize the adversary process more than the underlying legal misbehavior." Id. Rather than adopting a blanket rule that the crime-fraud exception does not apply when there is an innocent client, the D.C. Circuit adopted a balancing test to weigh the client's interest in secrecy against the reasons for disclosure. Because we agree with the D.C. Circuit's application of this balancing test, the crime-fraud exception may apply to work product when the attorney but not her client is accused
We resolve the pure legal issue presented in this interlocutory appeal by holding that the crime-fraud exception may be applied to eliminate work product protection based on attorney misconduct when the client is innocent. Accordingly, we affirm the district court's order.
Regarding the first question certified on appeal, we decline to exercise our discretion to answer whether agency principles may be used to apply the crime-fraud exception under the facts of this case. We will not answer this question because it does not present a purely legal question. This Court's earlier order granting permission to appeal is vacated as improvidently granted as to that question, and permission to appeal on that question is denied.
Regarding the second question certified on appeal, we conclude that the crime-fraud exception may in appropriate cases be applied to overcome work product protection based on attorney misconduct, even if the attorney's client is innocent of any wrongdoing. Accordingly, we affirm the district court's order on the crime-fraud exception.
Question 1 is
Question 2 is