decided as amended october 8 1980.: June 30, 1980.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before Seitz, Chief Judge, and Gibbons and Rosenn, Circuit Judges.
These appeals present questions of some delicacy concerning the extent to which, by resort to a grand jury subpoena, the federal government may intrude upon the efforts of defense counsel in their preparation for the representation of potential criminal defendants. The subpoena duces tecum which gave rise to the orders appealed from was addressed to Edwin J. Hughes, a licensed private investigator. It directed Hughes:
to testify before the Grand Jury and bring with (him) all records concerning all investigative endeavors in Port Newark and Port Elizabeth; including original contracts for investigative work, original reports of interviews, original reports of investigative efforts, billing records, checks, receipts, expense account statements, investigative notes and memoranda.
At the time the subpoena was served Hughes was retained by Alfred C. DeCotiis, Esq., a member of the New Jersey bar, to assist DeCotiis in defending a client who, the government concedes, is a target of a grand jury investigation, the geographic focus of which is the Port Newark-Port Elizabeth area. DeCotiis promptly moved on behalf of Hughes for an order quashing the subpoena. He also moved to intervene in the district court proceedings in order to raise "all claims that can be raised by myself as an attorney and by my client, including specifically, all claims based on either the attorney-client or the attorney work-product privileges."*fn1 Both Hughes and DeCotiis filed affidavits in support of these motions, which are uncontradicted. The United States filed two affidavits in opposition: one was disclosed to Hughes and DeCotiis; the other was considered by the court in camera and sealed. After argument the trial court ruled orally: (1) that the sealed affidavit would not be disclosed; (2) that Hughes' motion to quash the subpoena would be denied; (3) that the court would pass on the assertion of any attorney-client privilege or work-product claim only with respect to specific questions addressed to Hughes; (4) that Hughes must appear and answer seventeen specific questions which, the parties stipulated, would be asked;*fn2 and (5) that DeCotiis would not be permitted to intervene. Subsequently, Hughes appeared before the grand jury. As he had previously represented, he refused to answer all but three of the government's questions, asserting the attorney-client privilege and work product protection. The trial court then entered an order holding Hughes in civil contempt. Hughes and DeCotiis appeal the district court's orders. We affirm in part and reverse in part.
I. DeCotiis' Motion to Intervene
In support of his motion to intervene DeCotiis filed two affidavits. These affidavits represented: that Hughes was an investigator retained by DeCotiis to assist in the defense of a grand jury target; that the testimony sought related to Hughes' investigative efforts on behalf of that target; that the subpoena amounted to "an improper attempt to utilize the grand jury to discover work product"; and that the subpoena demanded production of records of all investigative endeavors, reports of interviews, investigative notes, and the retainer agreement with Hughes. These documents, it was contended, reflected protected work product. When the motion to intervene was argued the government stated that it was withdrawing the bulk of the subpoena for documents. It still sought, however, Hughes' testimony, without restrictions, and a list of the persons interviewed. The Assistant United States Attorney took the position that he should be free to ask Hughes, before the grand jury, any relevant questions. He contended that Hughes might, or might not, assert a claim of privilege and that if he did the court could rule on each question at that time. DeCotiis' attorney pointed out that the court was dealing with a witness protecting a privilege belonging to someone other than himself. The court, nevertheless, denied the motion to intervene.
While the court's initial order directing Hughes to appear and testify was limited to the production of a list of witnesses interviewed and seventeen specific questions, it was the government's position that the subpoena remained operative and that the grand jury could ask Hughes any question it deemed relevant. The trial court stated that it would not rule in advance on any additional questions, but would await an assertion by the witness of a claim of privilege. No provision was made for participation by Mr. DeCotiis in the questioning before the grand jury. Thus, DeCotiis was forced to rely upon Hughes' ability to recognize questions directed at discovery of what might be protected work product, Hughes' willingness to assert that claim on DeCotiis' behalf, and Hughes' further willingness to stand in contempt should the court overrule the claim of privilege.
Our consideration of the propriety of the trial court's intervention ruling commences with the observation that the work product doctrine applies to criminal, as well as civil, litigation. United States v. Nobles, 422 U.S. 225, 236, 95 S. Ct. 2160, 2169, 45 L. Ed. 2d 141 (1975). Moreover, as the Court in Nobles observed:
(T)he doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.
Id. at 238-39, 95 S. Ct. at 2170. (footnote omitted). Nor is it significant that DeCotiis' client has not yet been indicted, for we have held that the doctrine applies to material prepared or collected in advance of litigation. In re Grand Jury Investigation (Sun Company, Inc.), 599 F.2d 1224, 1229 (3d Cir. 1979). It is not disputed that DeCotiis represents a grand jury target likely to be indicted. The likelihood of litigation, therefore, is at least as strong as in Sun Company, Inc. DeCotiis properly asserted the protection of the work product doctrine, both on his own behalf, and on behalf of his client. In re Grand Jury Proceedings (FMC I), 604 F.2d 798, 801 (3d Cir. 1979). And unlike the situation in Nobles, where by proposing to use the testimony of the agent at trial the attorney waived the privilege of nondisclosure derived from the work product doctrine, in this case DeCotiis has done nothing amounting to a waiver.
We are dealing, then, with a valid claim for work product protection of materials sought, not directly from the attorney, whose factual and legal theories and trial strategies might be reflected therein, but from his agent. In Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947), the attorney was in a position fully to protect the privilege of nondisclosure provided by the work product doctrine by refusing to produce the material sought and standing in contempt. That remedy is unavailable to DeCotiis. If he is denied intervention, and the agent should be disinclined to contest the subpoena, to resist a production order, to stand in contempt, or to pursue an appeal, he runs the risk that the claim of work product protection will be lost. In this case, thus far, Hughes and DeCotiis have made common cause. But it was not at all certain when the trial court ruled on the motion to intervene that they would continue to do so, either with respect to further questioning pursuant to the subpoena, or with respect to an appeal. The governing rule in these circumstances is that the possessor of the claimed privilege or right may intervene to assert it, and may appeal from an order affording it less protection than claimed. Gravel v. United States, 408 U.S. 606, 608 n.1, 92 S. Ct. 2614, n.1, 33 L. Ed. 2d 583 (1972); Perlman v. United States, 247 U.S. 7, 38 S. Ct. 417, 62 L. Ed. 950 (1918); In re Grand Jury (C. Schmidt & Sons), 619 F.2d 1022 (3d Cir. 1980); In re Grand Jury Proceedings (FMC I), 604 F.2d at 800-91; United States v. RMI, Co. (NL Industries), 599 F.2d 1183, 1186-87 (3d Cir. 1979); In re Grand Jury Investigation (Intervenor A), 587 F.2d 589, 592 n.3 (3d Cir. 1978); In re Grand Jury Proceedings (Cianfrani), 563 F.2d 577, 580 (3d Cir. 1977); In the Matter of Grand Jury Impanelled Jan. 21, 1975 (Freedman), 541 F.2d 373, 377 n.4 (3d Cir. 1976). Clearly DeCotiis is an applicant claiming "an interest relating to the . . . transaction which is the subject of the (subpoena enforcement) action . . . so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest . . . ." Fed.R.Civ.P. 24(a). There was no justification for denying his motion and exposing him to the risk of third party disinterest. Since we recognize that he should have been granted the right to intervene, we recognize, as well, his right to object to the order appealed from on substantive grounds. Thus, there is no need to differentiate, for purposes of the motion to quash, between DeCotiis' objections to the subpoena and those asserted by Hughes.
A. The Schofield Affidavit
Both appellants urge that the trial court erred in failing to quash the subpoena because when it was resisted the government failed to furnish a legally sufficient Schofield affidavit. They have not had an opportunity to review the affidavit which the court examined in camera, and they object to the court's reliance on it in satisfaction of the Schofield ...