Brief Fact Summary. The Internal Revenue Service (“I.R.S.”) was investigating the tax returns of L. Ron Hubbard (“Mr. Hubbard”), and sought various materials from the Church of Scientology (the “Church”) in the possession of a District Court. The Church sought continued protection of the documents based on the attorney client privilege, and the IRS claimed they should be given access to the tapes because they fell under the crime-fraud exception to attorney-client privilege.
Synopsis of Rule of Law. Neither the Federal Rules of Evidence (“F.R.E.”) or the federal common law prohibit in camera review of alleged privileged material.
The joint defense privilege is: where two or more persons who are subject to possible indictment in connection with the same transactions make confidential statements to their attorneys, these statements, even though they are exchanged between attorneys, should be privileged to the extent they concern common issues and are intended to facilitate representation in possible subsequent proceedings.View Full Point of Law
The District Court ruled that the tapes did not fall under the attorney-client privilege and that the fraud-crime exception did not apply. On appeal, the Ninth Circuit Court of Appeals (“Ninth Circuit”) affirmed the determination that the I.R.S. had failed to establish the applicability of the crime-fraud exception.
Issue. Whether a district court, at the request of the party opposing the privilege, may review the allegedly privileged communications in-camera, to determine if the crime-fraud exception applies?
Whether some threshold evidentiary showing is needed before the district court may review the communications?
If a threshold showing is required, whether the partial transcripts the I.R.S. possessed may be used to oppose the privilege?
Held. Justice Harry Blackmun (“J. Blackmun”) delivered the opinion of the United States Supreme Court (“Supreme Court”) and held that in-camera review of allegedly privileged attorney-client communications may be used to determine whether the communications fall within the crime-fraud exception, in appropriate circumstances.
The party requesting in camera review must present evidence sufficient to support a reasonable belief that such review may reveal evidence that establishes the exception’s applicability. After this threshold determination is met, the decision rests in the sound discretion of the court.
a. The party opposing the privilege may use any relevant non-privileged evidence, lawfully obtained, to meet the threshold showing
Discussion. In-camera review is a minor intrusion on the attorney client privilege, and a lesser evidentiary showing is needed to have an in-camera review, than would be needed to overcome the privilege itself.