Summary of Continental Oil v. United States, 330 F2d 347 (1964)

Relevant Facts: During Grand Jury proceedings, certain employees and executives of the appellants Standard Oil and Continental Oil, were summoned to testify.  Both before and after they were interviewed by their attys.  They in turn prepared memoranda concerning the information received.  Afterward each respective party’s atty exchanged their memoranda.

Legal Issue(s): Whether the memoranda produced by the atty’s were privileged communication, and whether the exchange of the memoranda by the party’s attys waived the privilege?

Court’s Holding: Yes, and no.

Procedure: A Subpoena duces tecum was served on attys for litigants calling for the production of their memoranda before the Grand Jury.  D. Ct. denied motions to quash, appeal to U.S. S. Ct. or in the alternative writ of mandamus or prohibition. Order denying Motion to set aside is vacated, and Subpoenas Quashed.

Law or Rule(s): Where an atty furnishes a copy of a document, entrusted to him by the client, to an atty engaged in substantially the same cause, in confidence, for the limited and restricted purpose to assist in asserting their common claims, then the recipient of the copy stands enjoys the same right to privilege as the atty who furnished it, and he has no right, and cannot be compelled, to produce or disclose its contents.  See Schmitt v. Emery, 2 N.W.2d 413, 417.

Court Rationale: As to the jurisdiction, the parties are entitled to relief as an appeal, (Perlman v. United States, 247 U.S. 7; and Schwimmer v. United States, 232 F.2d 855), or as a writ of mandamus or prohibition, (La Buy v. Howes Leather Co., 352 U.S. 249; and Atlass v, Miner, 265 F.2d 312; and U.S. v. Cobb, 328 F.2d 115).  The attys who took the statements not only represented the corporations, but they represented the witnesses that they were called upon to advise and represent those persons from whom such statements were taken.  Where an atty furnishes a copy of a document, entrusted to him by the client, to an atty engaged in substantially the same cause, on behalf of other parties in the same litigation,  the communication is not made for the purpose of allowing unlimited publication and use, but in confidence, for the limited and restricted purpose to assist in asserting their common claims.  The recipient of the copy stands under the same restraints arising from the privileged character of the document as the atty who furnished it, and he has no right, and cannot be compelled, to produce or disclose its contents.  See Schmitt v. Emery, 2 N.W.2d 413, 417.

Plaintiff’s Argument: The memoranda were confidential and w/i the atty-client privilege; and they were not required to be produced b/c they represented counsel’s work product within the meaning of Hickman v. Taylor, 329 U.S. 495.

Defendant’s (Govt) Argument: the atty-client privilege does not apply b/c the attys did not represent the witnesses and b/c the privilege was waived when the statements received from the witnesses were exchanged.