IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA

Case No. 50-2009CA040800XXXXMBAG

JEFFREY EPSTEIN,

Plaintiff/Counter-Defendant,

v.

SCOT!' ROTHSTEIN individually, and J. individually,

Defendants/Counter-Plaintiff CO 'S

#### PLAINTIFF/COUNTER-DEFENDANT JEFFREY EPSTEIN'S NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF HIS SUPPLEMENT TO MOTION FOR COURT TO DECLARE RELEVANCE AND NON-PRIVILEGED NATURE ,OF DQCUMENTS, ETC.

As supplemental authority in support 'on for Court to Declare Relevance and Non-Privileged Nature of Documents Determine Relevance, lnapplicabi Work Product With Regard to,' Sealed Specific Request for In Camera Review to Waiver of Attorney-Client Privilege and Attorney ocuments, Plaintiff/Counter-Defendant, Jeffrey Epstein ("Epstein"), respectfully ;nits the attached Opinion issued on March 23, 2018, in Drummond Co., Inc. V. Conra(& Scherer, LLP, No. 2:11-cv-03695-RDP-TMP (11th Cir.). In that case, the United States Cott of Appeals for the Eleventh Circuit held that the crime-fraud exception may _ apply to overcome a law firm's claim of work-product protection for materials related to lawsuits where the firm served as counsel, despite the fact that its clients were innocent of wrongdoing.

Drummond had sued the law firm Conrad & Scherer, LLP (C&S) and its partner (Collingsworth) for defamation and sought discovery about witness payments. (Op. at 7.) Drummond sought to use the crime-fraud exception to overcome C&S's claim of attorney-client

and work-product protection over documents in their case files. (Op. at I I.) The district court determined that the crime-fraud exception may apply, ordered a special to review the contested documents in camera that C&S and Collingsworth claimed were privileged or workproduct protected, and certified its Order for immediate appeal. (Op. at 15.)

On appeal, the Eleventh Circuit reiterated that "the crime-fraud exception removes the \`seal of secrecy' from attorney-client communications or work product material ly n they are made in furtherance of an ongoing or future crime or fraud." (Op. at 19 cifA R nit, States v. Zolin, 491 U.S. 554, 563 (1989).) 0

Following earlier precedent in Parrott v. Wilson, 707 F.2d 1271 (11th Cir. 1983), the Eleventh Circuit affirmed the part of the district co fraud exception may be applied because an attorney' overcome attorney work-product protection. I.R.S., 654 F.2d 795 (D.C. Cir. 1981), innocence, where the attorney is ac A of the crime-fraud exception ma requires the court to ap a ba ancing test to weigh the client's legitimate interest in secrecy determining that the crimefraudulent conduct may, alone, 3-24.) The court also relied on Moody v. in Parrott, in recognizing that the client's isconduct, does not absolutely bar the application s shielded by the work product doctrine. Instead, it against the tr.aso d' ure. (Op. at 25-26.) The court resolved the pure legal issue by holding that ' c ri -fraud exception may be applied to eliminate work product protection based o a misconduct when the client is innocent" (Op. at 26-27.) The Court directed that, "On r and, under the district court's order, the special will perform an in camera review of certain categories of documents that CAS and Collingsworth contend are protected by the attorney-client privilege or work-product protection." (Op. at 27, n. 14.)

#### CERTIFICATE OF SERVICE

I certify that the foregoing document has been furnished to the attorneys listed on the Service List below on April 5, 2018, through the Court's e-filing portal pursuant to Florida Rule of Judicial Administration 2.516(6)(1).

> LINK & ROCKENBACH, PA 1555 Palm Beach Lakes Boulevard, Suite 301 West Palm Beach, Florida 33401 (561) 727-3600; (561) 727-3601 [fax]A

By: is/Scott./ Link Scott J. Link (FBN 602991) Kara Berard Rockenbach Rachel J. Glasser (FB. Primary: c.ttelin kl m Primary: Kara in w.com Primary: Rac inkrocklaw.com Secondary• nkr cklaw c Second inkrocklaw.com Seco rvi linkrocklaw. m 03) m

ounsel for PlaintiffiCounter-Defendant Epstein

#### VICE LIST

Jack Scarola Karen E. Terry David P. Vitale, Jr. Searcy, Denny, S 2139 Palm Beac West Palm B dvitale scarolatea terryteam@searcylav om Co-Counselor iendani/Counter-Plainiiff J. a, B4thart & Shipley, P.A. es Boulevard L 3409

Philip M. Burlington Nichole J. Segal Burlington & Rockenbach, P.A. Courthouse Commons, Suite 350 444 West Railroad Avenue West Palm Beach, FL 33401 pmb@FLAppellateLaw.com nisQFLAtmellateLaw.com kbtAFLAppellateLaw.com Co-Counseicalendant/Counter-Plaintift

J.

J. Marc S. Nurik

Law Offices of Marc S. Nurik

One E. Broward Boulevard, Suite 700

Ft. Lauderdale, FL 33301

marc®nuriklaw.com

Pottinger LIC

425 N. Andrews Avenue, Suite 2

Fort Lauderdale, FL 33301-3268

bradeepllc.com

Co-CounserSendant/Counter-Plaintiff

J.

Counsel for Defendant Scott Rothstein

Jack A. Goldberger

Atterbury, Goldberger & Weiss, P.A.

250 Australian Avenue S., Suite 1400

West Palm Beach, FL 33401

igoldbergeraagwva.com

Paul Cassell

383 S. University

Salt Lake City, UT 84112-0730

cassellp@law.utah.edu

Limited Intervenor Co-C !for L.M., LW smahoney@agwpa.com and Jane Doe O

Co-Counsel for Plaintiff7Counter-Defendant

Jeffrey Epstein

ec Jane • ited Intervenor Co-Counsel for L.M., E.W.

Jay How

Jay H e sociates

644 d., Suite 250

J * .comFL 32211

o 4a

Doe

# EXHIBIT A

NOT A CERTIFIED COPY

[PUBLISH]

# IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Nos. 16-11090, 15-90031

D.C. Docket No. 2:11-cv-03695-RDP-T

DRUMMOND COMPANY, INC.,

Defendant - Appellant.

\*ntiff - Appellee,

CONRAD & SCHERER, LLP,

App r from the United States District Court for the Northern District of Alabama

(March 23, 2018)

Before WILSON, JILL PRYOR and BARTLE,\* Circuit Judges.

JILL PRYOR, Circuit Judge:

Honorable Harvey Bartle III, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

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 di t court made a preliminary determination that the crime-fraud exceptio ply to overcome their assertions of privilege and attorney work pr c tection and ordered a special to perform an in camera reve9C1Q determine whether the crime-fraud exception does apply. Although n ti ers generally are not immediately appealable, the district court its order for immediate appeal, and a motions panel of this Court S permission to bring an interlocutory appeal under 28 t 1292(b).

After full briefing b the 3rties and with the benefit of oral argument, we conclude that interloc~lyreview is appropriate to address only one aspect of the district court' brat, We vacate as improvidently granted the motion panel's order in part not to exercise our discretion to review the question posed in that part: wh er the district court erred in applying agency principles to conclude that C&S intended to commit a crime or fraud and created attorney work product or

made communications in furtherance of the crime or fraud.' We decline to review this issue because it does not present a pure question of law suitable for review on an interlocutory basis under § 1292(b). Accordingly, we vacate the motion panel's earlier order in part and deny C&S's petition in part.

wan ted, whether do address the other issue on which interlocutory review the crime-fraud exception may be applied to overcome assertion, as a defendant in this case, that its materials related to othe aw where it served as counsel are protected as attorney work pro hen the firm's clients in those lawsuits were innocent of any wrongdoins lttfuestion presents the pure be invoked when a lawyer and or fraud but there is no such finding legal issue of whether work product prot law firm are found to have engaged i as to the client or clients they ed. Following our precedent and persuasive decisions from other circuity 6onclude that the crime-fraud exception may t defeat work product p 'on in this circumstance. We thus affirm the part of the district court' (§) Str determining that the crime-fraud exception could be applied

e merits panel, we have the authority to vacate as improvidently granted the motions el's decision to permit the interlocutory appeal. See McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1253 ("Like all motions initially ruled upon by a motions panel, [an order by a motions panel granting permission for an interlocutory appeal under § 1292(b)] is subject to being vacated as improvidently granted by the merits panel to which the case is assigned for decision."); see also Ilth Cir. R. 27-1(g) ("A ruling on a motion or other interlocutory matter ... is not binding upon the panel to which the appeal is assigned on the merits, and the merits panel may alter, amend, or vacate it.").

<sup>2</sup>We note that this issue does not concern materials claimed to be protected by the attorney-client privilege.

to overcome C&S's claim of work product protection for materials related to lawsuits where C&S served as counsel despite the fact that its clients were innocent of wrongdoing.

#### I. FACTUAL AND PROCEDURAL BACKGROUND

This appeal arises out of a complex dispute that began when Col sworth, a C&S partner, represented Colombian citizens who sued Drumm Alabama company, in federal court in Alabama, alleging that Drum upported paramilitary groups in Colombia that murdered privat • "z . To provide the necessary context for our discussion, we recoun Colombian citizens' lawsuits against D against Collingsworth and C&S. ant history of the d Drummond's later lawsuit

#### A. Collingsworth and C& esentation of Colombians Suing Drummond

In his law practice, • gsworth primarily represents victims of human rights abuses. H •oin ;M r&S as a partner to litigate such cases. Although the firm is base I 'thy he worked out of and managed its Washington D.C. office

While a partner at C&S, Collingsworth filed on behalf of Colombian citizens several lawsuits (the "alien tort cases") against Drummond, which operates coal mines around the world, including in Colombia. The plaintiffs sued Drummond under the Alien Tort Statute, 28 U.S.C. § 1350, and the Torture Victim Protection

Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. 1350 note), alleging that Drummond hired members of the paramilitary to provide security services around its mines in Colombia and that these individuals, acting as the agents of Drummond, killed civilians in violation of the laws of nations. See generally Doe v. Drummond Co., 782 F.3d 576, 579-81 Cir. 2015).

Collingsworth acted as the lead C&S attorney in thesp illiam Scherer, the firm's managing partner, and other C&S~CtRl ieys entered appearances in the cases. As managing partner delegated to Collingsworth the authority to litigate the

To support the claims against k ind, Collingsworth developed evidence connecting Drumm° paramilitary's violent actions. He secured testimony from several fo embers of the paramilitary, including Jairo de Jesus Charris, Libardo !It'd e, Jose Gelvez Albarracin, Alcides Manuel Mattos Tabaraes ("S ), and Jhon Jairo Esquivel Cuadrado ("El Tigre"). These witnesses testimony that implicated Drummond. Additionally, Collings rth relied on testimony from Jamie =, who worked as a contractor for Drummond in Colombia. 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—Chants, Duarte, and Gelvez.3 The plaintiffs claimed these payments were made to provide security to the family n ers of the witnesses who were in danger as a result of the witnesses' to The plaintiffs in the alien tort cases did not identify any payme ade to Samario, El Tigre, or

Ultimately, Drummond prevailed in eac en tort cases.4 But the dispute between Drummond, on the one &S and Collingsworth, on the other, was only beginning.

but C would not tiffs also identified a fourth potential witness who received money from C&S, opped paying this potential witness when it determined that he was not credible and used as a witness.

<sup>4</sup>Balcero Giraldo v. Drummond Co., No. 2:09-CV-1041, 2013 WL 3873960 (N.D. Ala. July 25, 2013) (granting summary judgment in favor of Drummond), aff'd sub nom. Doe v. Drummond Co., 782 F.3d 576 (11th Cir. 2015); Baloco v. Drummond Co., No. 7:09-CV-00557, 2012 WL 4009432 (N.D. Ala. Sept. 12, 2012) (dismissing case in part and granting summary judgment in favor of Drtunmond), aff'd 767 F.3d 1229 (11th Cir. 2014); Order, Melo Penaloza v. Drummond Co., No. 2:13-cv-393 (N.D. Ala. Jan. 26, 2016), ECF No. 59 (dismissing case with prejudice), aff'd in part, rev'd in part, vacated in part, and remanded with instructions 662 F. App'x 673 (11th Cir. 2016).

#### B. Drummond's Defamation Action Against Collingsworth and C&S

#### 1. 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 to the Dutch government and a Japanese company accusing Drummond of supporting paramilitary groups that murdered hundreds of Colomb ens. After Collingsworth sent these letters, Drummond sued Collin d C&S for defamation in federal court in Alabama (the "defamatio 0 cas

At the beginning of the defamation case, Coll rth and C&S were jointly represented by outside counsel. Beca ingsworth's central role in the underlying litigation and in writing ( i4ciicin, dly defamatory letters, he was the C&S partner primarily responsible wo ' g with outside counsel. In their joint answer, Collingsworth and liability and raised several defenses, including that the statemen e letters were true and that they had not acted maliciously.

Attegtpt prove that Collingsworth had known the statements in his letter se 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.

# 2. Through Discovery, Additional Witness Payments Are Uncovered.

As it turns out, all of these statements made in discovery were f t Eventually, Collingsworth and C&S admitted that El Tigre, Sam IR, , nd had also received payments. The payments were uncover mmond subpoenaed a law firm that had served as C&S's co- 1 in the alien tort cases. That law firm produced an email showing that orth had asked co-counsel and Scherer for permission to pay appro 00,000 in attorney's fees on behalf in a pending criminal\<ca i Colombia. The co-counsel, copying Scherer, directed Collingswo t pay the fees because they would have to disclose these payments in n tort cases, which would damage credibility and likely l jen as bribery.

Drum d this email, which Collingsworth and C&S had failed to produce i ery, to argue that Collingsworth and C&S had been hiding informa 1 about witness payments. A few months later, Collingsworth and C&S admitted that El Tire, Samario, and 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 era& t his efie cocounsel in the alien tort cases, copying Scherer, informing them 0 Tigre and Samario would receive money each month until they were po . This email was forwarded to Scherer's son, another C&S partne then apparently had an 9 ic associate research the propriety of witness pa . S employees who were responsible for sending the monthly wire Y\\e e aware that C&S was sending money to the intermediary to pay El d Samario.

received no mo c i tly from C&S or Collingsworth; instead, he received money from Alb vp Bilderbeek, another Colombian client of Collingsworth's. Aftt on• g told by co-counsel not to pay attorney's fees, Collin o troduced to van Bilderbeek. Van Bilderbeek subsequ d \$150,000 of legal fees. While these payments were being e, Collingsworth served as intermediary between and van Bilderbeek. At one point, \_—waiting for money from van Bilderbeek—told Collingsworth that he would not finalize his declaration until van Bilderbeek paid

him. After van Bilderbeek paid, signed a declaration that Collingsworth used in the alien tort cases.

# 3. 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& d made false statements to the court by failing to disclose these payments. 54 1 e court allowed Drummond to depose Collingsworth and Scherer payments and related issues. mess

At his deposition, Collingsworth admitte made to witnesses that he and C&S had fa'l "., lose. With regard to the payments to El Tigre and Samario, C OISs orth testified that he had forgotten about the payments to the witAS AS:cLie g use they were made through an intermediary. With regard o v ilderbeek's payments to for legal fees, Collingsworth claime he failed to disclose the payments because he thought that he had onl n asked to identify payments that he made directly to witness than payments made by third parties like van Bilderbeek. Scherer, To was deposed as the representative of C&S, explained that he had not "c had been payments

<sup>\$</sup> As sanctions, Drummond asked the court to enter a default judgment against Collingsworth and CReS, hold Collingsworth in contempt of court, and award Drummond its reasonable attorney's fees.

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-clie vilege or the attorney work product doctrine. For example, Collingswo sed to answer questions regarding communications about the wi ss p ents that he had had with Ivan Otero, a Colombian attorney who as a conduit for payments from C&S to El Tigre and Samarioo,,'9 ep rfy who was involved in drafting the filings in the defamation acti ic ,contained misrepresentations about the witness payments. And Co li tiv 9S 1rthand Scherer refused to answer questions about what caused slue that they had made inaccurate statements about the witne pa ents or the process that led them to correct their t misstatements, claimi ie information sought was privileged or protected from discovery. D d asked the court to hold that the crime-fraud exception vitiated orth and C&S's claims of attorney-client privilege and work product p • tection.

#### 4. 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 (I) 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 attorney work product that may not be protected from discovery because ere used to further a crime or fraud.

C First, the district court pointed to evidence that cCollingsworth and C&S had engaged in criminal or fraudulent conduct sought the advice of outside counsel in the defamation case an c attorney work product in both the alien tort and defamation cases. 's ct court determined that the crimefraud exception's first prong aft3fied as to three crimes: fraud on the court, witness bribery, and subort Cg, rjury. The court emphasized that it was not holding that a crime oktittied actually had been committed, but only that a prima facie case h tablished.

I 1ing that there was a prima facie case of fraud on the court, the district cdirt 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 a sil• k for the firm's benefit, his actions and knowledge were attributable to th under agency principles. Second, the court cited evidence show er firm partners and employees, including Scherer, had been of the monthly payments being made to the witnesses and explk it was unbelievable that no one at the firm other than Collingswo eCt <sup>1</sup> own of the payments.

As for the witness bribery and g perjury crimes, the district court determined that Drummond h 9% shed a prima facie case with evidence that the witnesses add ceived payments from the litigation team under suspicious circumstan Sr. he court once again relied on agency principles to establish the m cie showing that C&S had bribed witnesses and suborned perjury, e g that every action taken by Collingsworth in the case had been in his cap city 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 furtherance of the criminal or fraudulent activity. Because the court did not

have before it the specific materials that Collingsworth and C&S claimed were privileged or protected from discovery, in lieu of a document-by-document analysis the court considered whether the categories of discovery Drummond sought were sufficiently related to the allegations of fraud, witness bribery, and suborning perjury. The court found that each category of discovery D identified was sufficiently related to the allegations of fraud on bribery, and suborning perjury. These categories of info ilyt, witness uded:

- Collingsworth's communications with Ilan attorney who served as the intermedi Tigre and Samario and from van ero, the Colombian ents from C&S to El

- Collingsworth and C&S's wi ing and redaction of documents produced to Drummond i e ation case showing payments to El Tigre and Samario;

- Collingsworth an drafting of pleadings and papers in the alien tort and defa that included misrepresentations regarding the scope, na e, ap extent of witness payments;

- Collings s email informing Scherer and his co-counsel that El Tigre would receive ongoing monthly payments and a as done with the email after it sent; Oingsworth's communications with attorney Paul about itness payments;

- Collin disclosure of payments to El Tigre, Samario, and to outside counsel in the defamation case;

- Collingsworth's payment of \$100,000 to a consulting attorney in Colombia who assisted in obtaining access to prisoners in Colombia in order to interview and depose them in the alien tort cases;

- Collingsworth's communications with van Bilderbeek regarding payments to I= and

- Collingsworth and C&S's search for documents in the defamation case.

After determining that the crime-fraud exception may apply, the district court ordered a special to review in camera the documents that Collingsworth and C&S claimed were privileged or protected as ey work product to determine whether each individual document w erance of or closely related to a fraud on the court or crime and the s ould be produced to Drummond. The court also set forth a procedu pecial to assess a it witness's assertion of attorney-client pHs,' a orney work production protection in a deposition. The court that when necessary a witness should give in camera testimo ally ex parte, so that the special could appropriately assess y ilege issues while limiting disclosure only to information used or c ?kr\*in furtherance of the crime or fraud.

After ex mg why the crime-fraud exception applied, the district court certified rder involved controlling questions of law as to which there may be a subs tial ground for difference of opinion and that an immediate appeal may materially advance the litigation. In addressing certification, the district court did not identify the specific controlling questions of law that it believed warranted interlocutory review.

#### 5. 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 A C&S's petition as to the following two questions:

- 1. Can agency principles be used to impute the app S5n f the crime-fraud exception to an agent's prin ere the principal has separately-held privileges as a c u ef= ndant in the suit and there is no finding that the exce 'es directly to the principal?
- 2. Can agency principles be used t the application of the crime-fraud exception to an a: cipal where the agent is operating as an attorney an' s no finding that the client's behavior triggered the ud exception or that the exception applies e principal?

#### H. BACKGROUND ATTORNEY WO ATTORNEY-CLIENT PRIVILEGE, CT DOCTRINE, AND CRIME-FRAUD EXCEPTION

The issues in th 1 center on how the attorney-client privilege, attorney work produc e, and crime-fraud exception apply to a partnership and what role, if a Icy principles play in the application of the crime-fraud exception. To prow 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.6 See In re Grand Jury Investigation, 842 F.2d 1223, 1224 (11th Cir. 1987). The purpose of the privilege is "to encourage full and communication between attorneys and their clients and thereby promo oader public interests in the observance of law and administration of jtyS United States v. Zolin, 491 U.S. 554, 562 (1989) (internal quotatio tnitted).

Attorney work product protection extends to 1 obtained or prepared by counsel in the course of their legal duties p 4 t the work was done with an eye toward litigation.See Fed. R Civ r\\ 3)(A); Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1421-22 1 Ci . 1994). Work product protection prevents most inquiries into at s work files and mental impressions. Hickman v. Taylor, 329 U. C49 I, 510 (1947). The purpose of this protection is to to protect the integrity o adversary process by allowing a lawyer to work "with a

<sup>6</sup> Th • ets of attorney-client communications claimed to be privileged that are potential) t n this appeal. First, there are communications between C&S and its clients in Colo e alien tort cases. Second, there are communications between C&S and its outside se in the defamation case. In the first category, C&S is serving as the attorney; in the second &S is the client. With respect to the attorney-client privilege, as opposed to the protections for attorney work product, Drummond seeks discovery of attorney-client privileged materials only from the defamation case—that is, Drummond seeks to use the crime-fraud exception to pierce the attorney-client privilege only with respect to communications where C&S was the client. We thus do not address whether the crime-fraud exception could apply to privileged communications between C&S and its clients in Colombia, who are not alleged to have participated in any wrongdoing.

<sup>7</sup> With respect to attorney work product, Drummond seeks to discover materials from both the alien tort and defamation cases that C&S claims are protected.

certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Id.

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 hardsl btain their substantial equivalent by other means." Fed. R. Civ. P. 26 Greater protection is given to the attorney's opinion work product aterials containing "the mental impressions, conclusions, op i ' or legal theories of a party's attorney or other representative concern'4 c igation." Fed. R. Civ. P. 26(b)(3)(B). Such materials "enjoy[] a n r s ute immunity and can be discovered only in very rare and extra circumstances." Cox, 17 F.3d at 1422 (internal quotation mar lst )

The crime-fraud exc Ctio, allows a party—in rare circumstances—to obtain t discovery that otherwi riould be protected by the attorney-client privilege or the attorney wor, t doctrine. The crime-fraud exception applies when a twopart test i ed:

there must be a prima facie showing that the client was engaged in criminal or fraudulent conduct when he sought the advice of counsel, that he was planning such conduct when he sought the advice of counsel, or that he committed a crime or fraud subsequent to receiving the benefit of counsel's advice. Second, there must be a showing that the attorney's assistance was obtained in furtherance of the criminal or fraudulent activity or was closely related to it.

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; see Cox, 17 F.3d at 1422 (recognizing that the crime-fraud exception "applies to work-product in the same way applies to the attorney-client privilege"). When the crime-fraud excepti 0 ;es, an attorney's opinion work product is discoverable. Cox, 17 F a 2. With these principles in mind, we now turn to the questions rais is appeal.

# III. SCOPE OF 1NTERLOCUTORk UNDER § 1292

The federal courts of appeals "have ' * ' iN6n of appeals from all final decisions of the district courts of the f rt es." 28 U.S.C. § 1291. "A final decision is one by which a dis disassociates itself from the case . . . ." Doe No. I v. United States d 999, 1004 (11th Cir. 2014) (internal quotation marks omitted). It "e litigation on the merits and leaves nothing more for the court to dob xecute the judgment." Id. (internal quotation marks omitted). "Discov are ordinarily not fmal orders that are immediately appealable." A s Id.

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):

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal t be taken from such order, if application is made to it within ten days er the entry of the order .. ..

28 U.S.C. § 1292(b). We have explained that when deciding S o .- permit an appeal under § 1292(b) after a district court has entered an certifying the appeal and a party has filed a timely application f ion to appeal, we are considering not whether we have jurisdictio e appeal but instead whether to exercise our discretion and ). See McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 125 2004).

Our precedent identi ) 1 principles to guide us when deciding whether to exercise o disc r ton under § 1292(b) to allow for a rare interlocutory appeal. Id. at 1 eneral, we exercise our discretion only when (1) the appeal pre pure question of law, (2) the question is controlling of at least a subs 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 crimefraud exception to a partnership by imputing to the partnership the act' and knowledge of a partner. C&S argues that the district court impr used agency principles to impute Collingsworth's intent to commit a fra> o e to C&S in determining that a crime or fraud occurred and that t vant communications or work product were made in furtherance of that

At first blush, the core issue of wh i applying the crime-fraud exception, a court may impute a partn appears to raise a purely legal But C&S concedes that in some circumstances, such as wh C a y s managing partner or partner charged with responsibility to make td ecisions at issue participates in the fraud, a partner's intent may to the partnership. So it cannot be that this appeal presents the abs ly legal issue whether agency principles ever may be used to impute a er's knowledge and intent to a partnership for purposes of applying the crime-fraud exception. A\\iin wledge 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 mana rtner, had delegated responsibility for the alien tort cases and who als se s the primary point of contact for the firm's outside counsel in the lion cases—is sufficient to support the application of agency in the crime-fraud context. To answer it would require the c the case and thus to take a deep dive i i's 'case's voluminous record. The purpose of § 1292(b) is not to i(c?i nterlocutory appellate review of such factdriven issues. See McFarl 3 1 .3d at 1262. Accordingly, we conclude that permission to appeal issue was improvidently granted, and we decline to exercise our n to hear an interlocutory appeal related to the first question. ply law to the particular facts of

### IV. LEGAL ANALYSIS

ow 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:

Can the crime-fraud exception be applied to overcome attorney work product protection when the attorney or law firm was engaged in the crime or fraud but the client was not?

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 manned AS despite the firm's participation in the wrongdoing,

We hold that the district court properly concluded th Q<sup>e</sup>1e-fraud exception may be applied because illegal or fraudule duct by an attorney alone may suffice to overcome attorney work p tection.9 We have previously recognized that in cases of att onduct there is no protection for the attorney's work product. See a t . Wilson, 707 F.2d 1262, 1271 (11th Cir. 1983). In Parrott, a party that his attorney's secret recordings of conversations with two wi ess were protected from discovery as work product. Id. at 1270-71. We di ra, concluding that because the attorney's clandestine recordings w ical,'° regardless of whether they were work product, they

case. in, this issue relates only to materials from the alien tort cases, not the defamation

<sup>9</sup> We review de novo a question certified for interlocutory review under § 1292(b). v. City of Fort Lauderdale, 148 F.3d 1228, 1229 n.3 (11th Cir. 1998).

<sup>1°</sup> At the time we decided Parrott, an ABA opinion concluded that it was unethical for an attorney to make a clandestine recording, even when such recording was legal under state law. 707 F.2d at 1271 n.19 (11th Cir. 1983). That ABA opinion has since been withdrawn. See ABA Comm. on Ethics and Prof 1 Responsibility, Formal Op. 01-422 (2001). We express no opinion whether an attorney who makes a clandestine recording today acts unethically.

were not protected. We relied on a D.C. Circuit decision recognizing that "in some circumstances, a lawyer's unprofessional conduct may vitiate" the protection afforded to attorney work product. Id. (quoting Moody v. I.R.S., 654 F.2d 795, 799-801 (D.C. Cir. 1981). The D.C. Circuit explained in Moody that "[a]n attorney should not be able to exploit [work product protection] for ends outsid sko and antithetical to the adversary system any more than a client who to use the privilege to advance criminal or fraudulent ends." Moody, at 800. Based on this rationale, an attorney may not exploit work p protection when she engages in illegal conduct or a fraud upon the court even if her client is innocent.' I Of course, for the crime-fraud exception, I court must find that the specific document or testimony that is ordering to be produced reflects work of the attorney that was r dinfiutherance of the criminal or fraudulent activity or that csely related to it.

t To support its c ory position, C&S cites several cases holding that an innocent die s ilege cannot be overcome by the crime-fraud exception. But most of es consider the scope of the attorney-client privilege rather than

<sup>&</sup>quot; Our conclusion today is consistent with the holdings of other circuits that the crimefraud exception may vitiate the protection afforded attorney work product in cases where an attorney commits a crime or fraud. See In re Impounded Case (Law Finn), 879 F.2d 1211, 1213- 14 (3d Cir. 1989) (allowing crime-fraud exception to overcome work product protection for "materials relating solely to possible criminal activity of [a] law firm"); In re Doe, 662 F.2d 1073, 1079 (4th Cir. 1981) (concluding that fraud exception allowed disclosure of work product when the lawyer, not client, was alleged to have engaged in the fraud).

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 parti 1wyer and client." 654 F.2d at 801. The D.C. Circuit explained that "the li ion that an attorney has no right to object to the disclosure of work pro oche possible by his misconduct does not necessarily mean that the w duct privilege is inapplicable to such documents" because "the c • erest in preventing disclosures about his case may survive th e of his representation by an unscrupulous attorney." Id. C&S relies is reasoning to argue that the crimefraud exception may not be us q rce work product protection when the underlying client is irmoce Cbe i se the innocent client may still invoke the doctrine.

'4 1.4r. We di ith C&S's position. Moody went on to explain that to deter= er an innocent client may rely on the work product doctrine to shield rials 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 outweighs 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 prod attorney but not her client is accused of misconduct.I2 We there argument that the client's innocence is an absolute bar to p orney work product protection through the crime-fraud exception hen the ACIect C&S's

We resolve the pure legal issue presen • terlocutory appeal by holding that the crime-fraud exception 4\\m a plied to eliminate work product

<sup>12</sup> To support its position tha a e-fraud exception cannot apply to overcome work product protection when a client C&S also points to several decisions holding that an innocent attorney may invoke t protection even if his client committed a crime or fraud using his services. See, e. e Grand Jury Proceedings #5 Empanelled Jan. 28, 2004, 401 F.3d 247, 252 (4th C 2005) "[T]hose seeking to overcome the opinion work product privilege [using the crim exception] must make a prima facie showing that the attorney in question was awa or a owing participant in the criminal conduct." (internal quotation marks omitted)). thing to C&S, because an innocent attorney may continue to rely on the attorney wo ct octrine when his client engaged in a crime or fraud, the converse must also be ent client may invoke work product protection even if her attorney cornnu e or fraud while providing services. We disagree. C&S's position would, in effect, gr an innocent client a right to veto any application of the crime-fraud exception to his attorney's oric product. We cannot agree that a client's interest in preventing disclosures about his case means that the crime-fraud exception may never apply when the attorney, not the client, engaged in misconduct. Instead, a court must consider the totality of the circumstances to determine whether the policies favoring disclosure of such materials outweigh the client's legitimate interest in secrecy in a particular case.

<sup>13</sup> To the extent that C&S disagrees with the district court's application of the crime-fraud exception under the facts of this case, it would be quibbling with the way that the district court balanced the clients' interests in secrecy against the need for disclosure in these particular circumstances, which would not raise a pure issue of law appropriate for review under § 1292(b).

protection based on attorney misconduct when the client is innocent. Accordingly, we affirm the district court's order.14

# V. CONCLUSION

Regarding the first question certified on appeal, we decline to exercise our discretion to answer whether agency principles may be used to apply fraud exception under the facts of this case. We will not answer A' i estion because it does not present a purely legal question. This C, ier order granting permission to appeal is vacated as improvid ted as to that question, and permission to appeal on that ques ied.

Regarding the second question ce 'peal, we conclude that the crime-fraud exception may in appro a es be applied to overcome work product protection based on a rte sconduct, even if the attorney's client is innocent of any wrongdoin o. A fordingly, we affirm the district court's order on the crime-fraud excep

rcS"

'...)

<sup>14</sup> On remand, under the district court's order, the special will perform an in camera review of certain categories of documents that C&S and Collingsworth contend are protected by the attorney client privilege or work product protection. To conclude that the crime-fraud exception applies to require disclosure of any specific document, the special must find that the document either (1) reflects a communication used to further a crime or fraud or was closely related to it or (2) was created to further a crime or fraud or was closely related to it. See Cox, 17 F.3d at 1422; In re Grand Jury Investigation, 842 F.2d at 1227.

Question 1 is **DECLINED**, the earlier order granting permission to appeal is **VACATED**, and the petition for permission to review is **DENIED**.

Question 2 is **ANSWERED**.

NOT A CERTIFIED COPY