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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 2009 Decided April 17, 2009
No. 08-5203
UNITED STATES OF AMERICA,
APPELLEE
THE WILLIAMS COMPANIES, INC.
AND WILLIAMS POWER COMPANY INC.,
APPELLANTS
v.
SCOTT THOMPSON,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-mc-00241-RJL)
Andrew S. Tulumello argued the cause for appellants. With
him on the briefs was F. Joseph Warin.
Sangita K. Rao, Attorney, U.S. Department of Justice,
argued the cause for appellee United States of America. With
2
her on the brief were Patty Merkamp Stemler and Robertson T.
Park, Attorneys. Roy W. McLeese III , Assistant U.S. Attorney,
entered an appearance.
Philip T. Inglima argued the cause for appellee Scott
Thompson. With him on the brief was Ann M. Mason.
Before: ROGERS, Circuit Judge, and SILBERMAN and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This is a third-party appeal of a
discovery order in a criminal case compelling the government to
produce “all materials disclosed” by the third party pursuant to
its cooperation with federal investigators during a criminal
investigation of the third party and others. Ultimately, the
government agreed to defer prosecution of the third party.
Thereafter several of its former employees, including Scott
Thompson, were indicted. The district court granted
Thompson’s motion to compel production of documents the
third party had produced to the government that would be
material to the preparation of his defense. This court stayed the
order of production. The third party now seeks to enforce its
agreement with the government that the government would hold
the documents in confidence “to the extent possible” in view of
the third-party’s claims of privilege. The district court granted
Thompson’s motion but did not independently assess which
documents were material to his defense. Accordingly, we
remand the case for the district court to make that assessment
and to protect against the public disclosure of material
documents in a manner consistent with Thompson’s right to a
fair trial.
3
I.
This case is part of the fallout of the California energy crisis
that prompted the federal government to examine practices of
certain energy companies, including The Williams Companies
and its subsidiary formerly known as Williams Power Company
(hereinafter collectively “WPC”). In the fall of 2002, WPC’s
trading practices were under investigation by the Commodity
Futures Trading Commission (“CFTC”), the Department of
Justice, and the Federal Energy Regulatory Commission
(“FERC”). In October 2002, WPC announced that it was
“conducting an independent internal review of its trading
activities, including reporting of information regarding natural
gas trades to energy publications.” Alex Goldberg, Esq., Decl.
1, ¶2. The law firm of Gray Cary Ware & Freidenrich LLP
(“Gray Cary”) carried out the internal investigation. In early
November 2002, WPC received a subpoena from the grand jury
in the Northern District of California, demanding production of
information regarding WPC’s trading practices, and WPC
produced some responsive documents. On November 25, 2002,
CFTC issued a subpoena to WPC and by separate letter advised
that WPC was failing to “fully cooperate” with the investigation
by not turning over certain documents and that “full
cooperation” would entail disclosing the results of WPC’s
internal review. Letter from Steven Ringer, Division of
Enforcement, CFTC, to Edward P. Davis, Jr., Esq. and Walter
F. Brown, Jr., Esq., Gray Cary (Nov. 25, 2002).
WPC began producing documents to government
investigators in the spring of 2003. The documents included
attorney notes from interviews of WPC employees, data
analyses and reports of natural gas transaction data developed
under WPC’s attorneys’ supervision, and presentations to
prosecutors by WPC attorneys aimed at “influenc[ing] the
government’s charging decisions.” Goldberg Decl. 3, ¶11.
4
Each disclosure was accompanied by a statement that the
documents were privileged or that WPC was not waiving its
privileges, at least as to other parties and/or other matters. For
example, by letter of April 25, 2003 from its outside counsel to
the Justice Department Antitrust Division, WPC stated:
We expressly reserve and do not waive any privilege
and protection with respect to any other document and
any other subject matter. Further, we expressly reserve
and do not waive any privilege and protection for these
documents as to any other action, investigation, case,
matter, or party. We understand that these [redacted]
will be afforded Rule 6(e) protection under the Federal
Rules of Criminal Procedure, and to the extent possible
you will assist WPC in preserving the confidentiality
of these.
Letter from Edward P. Davis, Jr., Gray Cary, to Keslie Stewart,
Esq., Dep’t of Justice, Antitrust Division (Apr. 25, 2003)
(“Davis Letter of April 25, 2003 ”) (emphasis added).1 On July
29, 2004, the CFTC approved WPC’s offer of settlement
regarding the gas reporting issues, and on February 21, 2006, the
Justice Department executed a Deferred Prosecution Agreement
(“DPA”) under which WPC agreed to “cooperate fully” with
1
See also, e.g., Letter from Edward P. Davis, Jr., Gray Cary,
to Keslie Stewart, Esq., Dep’t of Justice, et al. (Apr. 23, 2003)
(“Moreover, it is also our understanding that production of these notes
will not be considered a waiver of any privilege as to any party other
than the United States, and will not be considered a waiver as to any
other subject or issue.”). See also WPC letters of May 7, 2003; July
14, 2003; and July 23, 2003. WPC has requested CFTC return all
produced documents. See, e.g., Letter from Edward P. Davis, Jr.,
Gray Cary, to Steven Ringer, Esq., CFTC (March 11, 2004). WPC
states in its brief it never produced privileged material to FERC.
5
federal prosecutors “regarding any matter about which [it] has
knowledge . . . including any investigations or prosecutions of
others.” DPA at 2. The DPA provided that cooperation would
include not asserting the attorney-client privilege or work-
product protection as to certain factual documents from the
internal investigation, although WPC reserved its right to assert
the privilege with respect to certain other documents. The
Justice Department acknowledged that WPC’s cooperation was
a factor in the decision to “defer[]” criminal prosecution of
WPC. Id. at 4-5. WPC also agreed to pay a $50,000,000
penalty to the United States Treasury.
On September 28, 2006, Thompson was indicted for
conspiracy, 18 U.S.C. § 371, to commit wire fraud, id. § 1343,
and to manipulate gas prices in violation of the Commodities
Exchange Act, 7 U.S.C. § 13(a)(2), in connection with his
energy trading activities while a WPC employee. Thompson
filed a motion pursuant to, inter alia, Brady v. Maryland, 373
U.S. 83 (1963), and Federal Rule of Criminal Procedure
16(a)(1)(E)(i) to compel the United States to produce
“information that is material to preparing his defense” and that
was provided to the government by WPC. The United States
opposed the motion, stating that WPC had preserved the
protected status of the produced work product and the
government had agreed to these terms in receiving the
documents. WPC filed a separate miscellaneous action
opposing Thompson’s motion. See D.D.C. R. 57.6.2 The
2
D.C. District Court Criminal Rule 57.6 provides:
Any news organization or other interested person,
other than a party or a subpoenaed witness, who seeks relief
relating to any aspect of the proceedings in a criminal case
shall file an application for such relief in the Miscellaneous
Docket of the Court. The application shall include a
6
district court granted Thompson’s motion to compel, and denied
WPC’s application for relief. The district court denied a stay.
Upon WPC’s emergency motion for a stay, this court granted
the stay and expedited the appeal.
II.
On appeal, WPC seeks to enforce its agreement with the
government to maintain the confidentiality of the documents it
produced during the federal investigation of its trading activities.
Specifically, WPC contends that it did not waive its work-
product protection as to any other party, including Thompson,
when it made a limited, one-time disclosure of documents to
federal prosecutors in response to a grand jury subpoena while
the target of a criminal investigation. It further contends
Thompson has failed to demonstrate any need for the documents
because he already has access to the source materials and
witnesses on which WPC’s work product is based.
A.
As a threshold matter, this court has jurisdiction over
WPC’s appeal under Perlman v. United States, 247 U.S. 7, 13
(1918), and its progeny. Under the Perlman doctrine,
“discovery orders addressed to disinterested nonparties are
immediately appealable,” In re Sealed Case, 141 F.3d 337, 339-
40 (D.C. Cir. 1998), because “the third party generally lacks a
sufficient stake in the proceeding to risk contempt by refusing
statement of the applicant’s interest in the matter as to which
relief is sought, a statement of facts and a specific prayer for
relief. The application shall be served on the parties to the
criminal case and shall be referred by the Clerk to the trial
judge assigned to the criminal case for determination.
D.D.C. R. 57.6.
7
compliance” as that party is not the holder of the privilege, In re
Subpoena Duces Tecum Issued to CFTC, 439 F.3d 740, 743
(D.C. Cir. 2006); see also Church of Scientology of California
v. United States, 506 U.S. 9, 18 n.11 (1992); In re Sealed Case,
141 F.3d at 339-40. Here, the United States is the subject of the
discovery order but WPC’s privileges are at stake; accordingly,
the United States presumably lacks the incentive to preserve the
privileges by committing contempt of court. See In re Sealed
Case, 754 F.2d 395, 399 (D.C. Cir. 1985). Indeed, in its brief to
this court, the United States advises that “[t]he government has
already complied partly and intends to comply fully with the
district court’s order [to] disclos[e] the documents to defendant
Thompson.” Appellee U.S. Br. at 20. Such intent to comply
favors allowing an immediate appeal under the Perlman
doctrine. See In re Sealed Case (Medical Records), 381 F.3d
1205, 1211 (D.C. Cir. 2004); In re Sealed Case, 141 F.3d at 340.
Accordingly, under the Perlman doctrine, the discovery order is
an “immediately appealable final order,” In re Subpoena Duces
Tecum Issued to CFTC, 439 F.3d at 743.
Notwithstanding the fact that the public, the government,
and Thompson all have a strong interest in ensuring a speedy
trial, see Flanagan v. United States, 465 U.S. 259, 265 (1984),
Thompson’s objections to our jurisdiction are unpersuasive.
According to Thompson, the Perlman doctrine is unavailable
because contempt proceedings were available to WPC when it
first turned over the documents; WPC could have refused to
make disclosures to the government during its investigation of
WPC, prompting a court order with which it could refuse to
comply. Hence, allowing an appeal would be unnecessary
because WPC has already had a chance to assert its privilege
claims. Cf. United States v. Ryan, 402 U.S. 530, 533 (1971).
However, for purposes of determining jurisdiction, this court
accepts as true an allegation that the documents are privileged
and that any privilege has not been waived. See In re Sealed
8
Case (Medical Records), 381 F.3d at 1209. Thus the court must
assume at this point that WPC has taken any and all necessary
steps to preserve its privileges. Likewise, the question whether
WPC’s privileges are so important that they should prevail over
Thompson’s constitutional rights as a criminal defendant goes
to the merits of disclosure and has little to do with whether the
production order is “final.” Thompson’s suggestion that
allowing WPC to appeal “would have the perverse effect of
allowing a third party to appeal an order that neither the
government nor the defendant could appeal,” Appellee
Thompson Br. at 26, is also flawed. That neither party could
appeal the order would show that this is effectively WPC’s last
chance to oppose the order and would buttress its position that
any rights it has will not be vindicated unless this court reviews
the order on an interlocutory basis.
Allowing an immediate appeal for WPC, even though doing
so delays Thompson’s criminal trial, comports with Perlman
itself, which involved a grand jury proceeding. Thompson’s
attempt to distinguish Perlman on the ground that it involved a
constitutional challenge to the grand jury is of no moment.
Allowing the appeal is consistent with the principle that
privileges play an important role in the healthy functioning of
the criminal justice system, see, e.g., United States v. Nobles,
422 U.S. 225, 238 (1975). As this court observed in United
States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), federal courts
have often allowed third parties to “assert their interests in
preventing disclosure of material sought in criminal proceedings
or in preventing further access to materials so disclosed,” id. at
311 n.67. The court’s grant of an expedited appeal
acknowledges the importance of avoiding undue delay of
Thompson’s trial.
9
B.
The work-product doctrine, recognized by the Supreme
Court in Hickman v. Taylor, 329 U.S. 495 (1947), reflects the
strong “public policy underlying the orderly prosecution and
defense of legal claims.” Id. at 510; see also Nobles, 422 U.S.
at 236-40; Hickman, 329 U.S. at 514-15. The doctrine protects
written materials that lawyers prepare “in anticipation of
litigation,” ensuring that “lawyers can prepare for litigation
without fear that opponents may obtain their private notes,
memoranda, correspondence, and other written materials.” In re
Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998). As the Court
observed in Hickman:
In performing his various duties . . . it is essential that
a lawyer work with a certain degree of privacy, free
from unnecessary intrusion by opposing parties and
their counsel. Proper preparation of a client’s case
demands that he assemble information, sift what he
considers to be the relevant from the irrelevant facts,
prepare his legal theories and plan his strategy without
undue and needless interference. . . . This work is
reflected, of course, in interviews, statements,
memoranda, correspondence, briefs, mental
impressions, personal beliefs, and countless other
tangible and intangible ways — aptly though roughly
termed by the Circuit Court of Appeals in this case as
the ‘Work product of the lawyer.’ Were such materials
open to opposing counsel on mere demand, much of
what is now put down in writing would remain
unwritten. . . . The effect on the legal profession would
be demoralizing. And the interests of the clients and
the cause of justice would be poorly served.
329 U.S. at 510-11 (internal citation omitted). See generally
Kenneth S. Broun, 1 MCCORMICK ON EVIDENCE § 96 at 433 (6th
10
ed. 2006); 6 JAMES WM. MOORE ET AL., MOORE’S FEDERAL
PRACTICE § 26.70 (3d ed. 2009); Developments in the
Law—Discovery, 74 HARV. L. REV. 940, 1027-46 (1961).
On appeal, the United States does not contest that the
documents at issue were covered by the attorney-client and
work-product privileges before production to it. The
government did not take a position before the district court as to
whether Williams had waived the attorney-client privilege with
respect to the produced documents. This court has declined to
adopt a selective waiver doctrine that would allow a party
voluntarily to produce documents covered by the attorney-client
privilege to one party and yet assert the privilege as a bar to
production to a different party. See In re Sealed Case, 877 F.2d
976, 980 (D.C. Cir. 1989); Permian Corp. v. United States, 665
F.2d 1214, 1219 (D.C. Cir. 1981). But, the question remains
whether work-product protection has been waived. Because the
work-product doctrine is designed to “promote the adversary
system by safeguarding the fruits of an attorney’s trial
preparation from the discovery attempts of the opponent” and
not, as the attorney-client privilege is designed, “to protect a
confidential relationship,” not all disclosures to third parties
waive the protection afforded by the doctrine. United States v.
AT&T, 642 F.2d 1285, 1299 (D.C. Cir. 1980); see also Rockwell
Int’l Corp. v. Dep’t of Justice, 235 F.3d 598, 605 (D.C. Cir.
2001); Permian Corp., 665 F.2d at 1219. Yet “disclosure of
work product materials can waive the privilege for those
materials if ‘such disclosure, under the circumstances, is
inconsistent with the maintenance of secrecy from the disclosing
party’s adversary.’” Rockwell Int’l Corp., 235 F.3d at 605
(quoting AT&T, 642 F.2d at 1299). Three main factors
determine whether work-product protection has been waived:
“(1) ‘the party claiming the privilege seeks to use it in a way that
is not consistent with the purpose of the privilege’; (2) the party
had no reasonable basis for believing that the disclosed materials
11
would be kept confidential by the [government]; and (3) waiver
of the privilege in these circumstances would not trench on any
policy elements now inherent in this privilege.” In re
Subpoenas Duces Tecum, 738 F.2d 1367, 1372 (D.C. Cir. 1984)
(internal citation omitted).
As to the first factor, In re Subpoenas Duces Tecum, 738
F.2d 1367, is instructive. There, the court concluded that
allowing the party (the Tesoro Company) claiming the privilege
the benefits of selective waiver would not well serve the
adversary system, “which spawned the need” for work-product
protection. Id. at 1372. Moreover, the court concluded that the
Securities and Exchange Commission (“SEC”), which had
created a voluntary disclosure program relying on internal
reviews of allegations of improper corporate payments, was an
adversary of Tesoro, a company participating in the program;
Tesoro’s disclosure was motivated by a desire to secure lenient
punishment for any wrongdoing exposed in the disclosed
materials. The court reasoned that Tesoro’s disclosure to the
SEC was not simply disclosure to a party with common
interests. For purposes of this appeal, contrary to WPC’s
contention, we will assume that WPC was not coerced into
producing documents to the government, as the district court
found, for we can reach a disposition that is not inconsistent
with WPC’s confidentiality claim without addressing a troubling
constitutional issue. Like Tesoro, then, WPC “independently
and voluntarily chose to participate in a thorough disclosure
program, in return for which it received the quid pro quo of
lenient punishment for any wrongdoing exposed in the process,”
id. Consequently, here too “[i]t would . . . be inconsistent and
unfair to allow [WPC] to select according to [its] own self-
interest to which adversaries [it] will allow access to the
materials,” id.
12
As to the second factor, whether the party had a reasonable
basis for believing that the government would keep the disclosed
materials confidential, the reasoning of In re Subpoenas Duces
Tecum, 738 F.2d 1367, is not determinative. In one sense, as in
that case, here there were no “common interests between
transferor and transferee” to support an expectation of
confidentiality, id. at 1372. Just as the SEC and Tesoro were
adversaries, the federal investigators and WPC were adversaries.
But, unlike here, there was no other solid basis for Tesoro’s
expectation that its produced documents would be kept
confidential. Id. In contrast, by letters accompanying its
disclosures to the government WPC expressed its desire to
preserve its privileges and limit waivers. See, e.g., letters supra
note 1 and accompanying text. The government, in turn,
acknowledged in opposing Thompson’s motion to compel that
WPC had a reasonable basis for believing that the Justice
Department and the CFTC would keep its documents
confidential. WPC has standing, at least at this stage, to seek
enforcement of this confidentiality agreement.
Just as clearly, however, WPC has not demonstrated that
disclosure of its documents to a criminal defendant under Brady
and Rule 16 lay beyond the scope of its confidentiality
agreement with the government. Thompson’s indictment was an
outgrowth of the criminal investigation in which WPC produced
the documents at issue. WPC’s expression of its expectation of
confidentiality sought the commitment of the government to
assist in preserving WPC’s privileges only “to the extent
possible.” E.g., Davis Letter of April 25, 2003, supra p. 4. In
view of this phrasing, WPC’s expectation of confidentiality
cannot reach the disclosures grounded in the government’s
Brady obligations, which are constitutionally based, and may not
reach disclosures the government would be required to make
under Rule 16, which turns on a balancing of interests. See
United States v. Garcia, 625 F.2d 162, 165 (7th Cir. 1980)
13
(citing Rovario v. United States, 353 U.S. 53, 62 (1957)); FED.
R. CRIM. P. 16(d)(1). Moreover, WPC made the disclosures
pursuant to grand jury subpoena and thus the materials were
disclosed with the understanding that they potentially would be
used at trial. In producing one set of documents to the
government, WPC stated through independent counsel that it
was “waiv[ing] the attorney work product privilege with respect
to [Gray Cary’s] investigation of reports to various publications
that publish gas indices,” Letter from Edward P. Davis, Jr., Gray
Cary, to Keslie Stewart, Esq., Dep’t of Justice, et al. (Apr. 23,
2003), and confirmed the privilege was waived with respect to
the government’s use of the documents. In transmitting
interview notes, WPC stated it was waiving its work-product
privilege with respect to “this grand jury investigation by your
office,” and the prosecutors’ “investigation of natural gas price
reporting issues.” Davis Letter of April 25, 2003, supra p. 4.
Given this evidence of the scope of the waiver under the
confidentiality agreement with the government, WPC has not
shown that it reasonably expected the government would guard
the confidentiality of the documents despite its Brady and Rule
16 obligations.
As to the third factor, which turns on the public policy
interests inherent in the work-product doctrine, the court
concluded in In re Subpoenas Duces Tecum, 738 F.2d 1367, that
if public policy favored an exception to waiver for cooperation
with investigative regulatory bodies, a court is not the
appropriate forum in which to craft such an exception. Id. at
1375. However, the court also noted that “the company can
insist on a promise of confidentiality before disclosure to the
SEC.” Id. Here, WPC sought confidentiality, but the assurances
it secured were neither sufficiently strong nor sufficiently
unqualified to prevent the government’s disclosure of
documents material to preparation of a criminal defense.
14
C.
In granting Thompson’s motion to produce, the district
court ordered that the government “shall produce to defendant
all materials disclosed to the Government by [WPC] pursuant to
[WPC’s] cooperation with the federal investigations that
resulted, ultimately, in the indictment of the defendant, Scott
Thompson.” In the course of considering WPC’s motion for a
stay, the district court indicated that its ruling was based on the
defendant’s right to prepare a defense for trial, concluding that
denial of access to the documents at issue would harm
Thompson since the government has access to them. In so
ruling, the district court implicitly ruled that the documents
material to Thompson’s defense were discoverable under Brady
and Rule 16. This court typically reviews a discovery order for
abuse of discretion. In re Subpoenas Duces Tecum Issued to
CFTC, 439 F.3d at 743.
In Brady, the Supreme Court established the prosecution’s
affirmative duty to disclose material evidence “favorable to an
accused,” 373 U.S. at 87. The Court has defined “material
evidence” to mean “there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Kyles v. Whitley, 514
U.S. 419, 433 (1995) (internal quotation marks and citations
omitted). Rule 16, in turn, requires the government to disclose,
upon request, inter alia, statements by the defendant and
documents and objects in the government’s control where “the
item is material to preparing the defense,” FED. R. CRIM. P.
16(a)(1)(E)(i), or the government intends to use the item in its
case in chief, id. 16(a)(1)(E)(ii). See United States v. Marshall,
132 F.3d 63, 67-69 (D.C. Cir. 1998); FED. R. CRIM. P. 16(a)(2),
(3). At the same time, Rule 16(d)(1) provides that “for good
cause” the district court may “deny, restrict, or defer discovery
or inspection or grant other appropriate relief.” FED. R. CRIM.
P. 16(d)(1); see also Alderman v. United States, 394 U.S. 165,
15
185 (1969) (discussing former Rule 16(e), which is currently
embodied in Rule 16(d)(1)); Morgan v. Dep’t of Justice, 923
F.2d 195, 197 n.2 (D.C. Cir. 1991); Baker v. United States, 401
F.2d 958, 978 n.91 (D.C. Cir. 1968) (discussing former Rule
16(e)). Given that Rule 16(d)(1)’s balancing encompasses
WPC’s interest in the confidentiality of the documents at issue,
see Garcia, 625 F.2d at 165, WPC has standing to protect its
interest in confidentiality, albeit in a manner consistent with
Thompson’s right to a fair trial and the government’s Brady and
Rule 16 obligations to Thompson.
The government informed the district court on June 22,
2007 that its review of the documents at issue had not uncovered
any Brady material and that it had not determined a witness list
that would trigger Jencks obligations. Additionally, the
government advised that its investigation had addressed an array
of activities unrelated to WPC or Thompson, such that only
some of the documents turned over by WPC, including witness
interviews, would be relevant to Thompson’s preparation of a
defense. Further, the government argued that because
Thompson has all the source data on which WPC based its
analysis, production of the analysis itself was not required. The
government had previously advised that it had found no
statements by Thompson and invoked Federal Rules of Evidence
801(c) and 408 in arguing that attorney notes of interviews and
reports prepared by counsel are not evidence, but hearsay and
potentially evidence of compromise or offer to compromise. On
June 26, 2008, following the grant of Thompson’s motion to
compel production, the government advised that it had located
some documents it was obligated to turn over to Thompson. At
a July 8, 2008 hearing, WPC, in turn, clarified that it was not
suggesting the underlying factual documents necessarily should
be withheld from discovery by Thompson, but only that the
private attorney notes and analyses should be withheld.
16
The district court did not make specific findings to resolve
WPC’s privilege claims. In denying WPC’s request for a stay,
however, the district court balanced the interests underlying the
privileges against a criminal defendant’s right to prepare a
defense, concluding that the harm that WPC would suffer with
regard to the civil litigation pending in California as a result of
disclosure was “at that time” too speculative, while the harm to
Thompson was real given the government’s access to the
documents he sought to discover. Upon observing that work-
product protection is a qualified privilege, the district court was
confronted with WPC’s suggestion for in camera document-by-
document review because there was no subset of documents
WPC could then identify whose release would harm it most.
WPC further argued that its attorneys’ notes and analyses would
not be reachable through deposition and the notes potentially
constituted an admission against interest. As Thompson points
out on appeal, he had argued he had “reason to believe that
[WPC’s] internal investigation entailed extensive witness
interviews and fact-gathering,” and such documents are essential
to an effective examination of witnesses called by the
government or himself at trial. Appellee Thompson Br. at 54-
55.
It remains for the district court on remand to determine
which of the documents at issue are material to Thompson’s
ability to prepare his defense, and upon identifying those
documents to afford appropriate protection to WPC against
public disclosure in a manner that is consistent with Thompson’s
right to a fair trial and the government’s confidentiality
agreement with WPC. Given the scope of the confidentiality
agreement, WPC cannot preclude discovery by Thompson of the
documents it produced to the government as are material to
Thompson’s defense, but Brady and Rule 16 contemplate a role
for the district court. A general conclusion that a defendant has
demonstrated “adequate reasons,” In re Sealed Case, 676 F.2d
17
793, 809 & n.58 (D.C. Cir. 1982), for disclosure of factual work
product would appear insufficient here because that showing
also turns on whether “that work product contains relevant,
nonprivileged facts,” id. at 809 (emphasis added). Because the
government’s criminal investigation was far broader than WPC
and its employees and did not focus on Thompson alone,
discovery by Thompson must proceed in a manner that avoids
a fishing expedition, see Nobles, 422 U.S. at 240-41, as the
district court’s order of production suggests. Upon remand the
district court can flesh out the details as to which documents
must be disclosed because material to Thompson’s preparation
of a defense and determine whether a protective order should be
issued with respect to any of those documents. Cf., e.g., In re
Sealed Case, 121 F.3d 729, 762 (D.C. Cir. 1997) (remanding
and attaching chart listing documents and privileges asserted as
a sealed appendix).
Accordingly, we remand the case to the district court and do
not reach WPC’s contention that its production of documents
was involuntary due to government coercion. Neither do we
address WPC’s contention that the documents at issue are
entitled to protection under a common-law, federal settlement
privilege, an issue that was not properly raised in the district
court and thus is not properly before this court. See In re
Subpoena Duces Tecum Issued to CFTC, 439 F.3d at 750-51.