In Re Grand Jury Subpoena

United States Court of Appeals
For the First Circuit

No. 01-1975

IN RE GRAND JURY SUBPOENA

(CUSTODIAN OF RECORDS, NEWPARENT, INC.),

__________

A. NAMELESS LAWYER (A PSEUDONYM) ET AL.,

Intervenors, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Selya and Lipez, Circuit Judges,
and Doumar,* Senior District Judge.

Andrew Good, with whom Harvey A. Silverglate, Silverglate
& Good, Norman Zalkind, David Duncan, Zalkind, Rodriguez, Lunt
& Duncan, Martin G. Weinberg, Oteri, Weinberg & Lawson,
Elizabeth B. Burnett, and Mintz Levin Cohn Ferris Glovsky &
Popeo were on consolidated brief, for appellants.
John M. Hodgens, Jr., Assistant United States Attorney, with
whom James B. Farmer, United States Attorney, and Stephen P.
Heymann, Assistant United States Attorney, were on brief, for
the United States.

November 8, 2001
______________
*Of the Eastern District of Virginia, sitting by designation.
 SELYA, Circuit Judge. This appeal requires us to

traverse largely unexplored terrain concerning the operation of

the attorney-client and work product privileges. The underlying

controversy arises out of a subpoena duces tecum issued by a

federal grand jury to a corporation, seeking records pertaining

to the affairs of a subsidiary. Although the corporation and

the subsidiary waived all claims of privilege, the subsidiary's

former attorney and two of its former officers intervened and

moved to quash the subpoena. They claimed that the subsidiary

had entered into a longstanding joint defense agreement with the

former officers and contended that the subpoenaed materials were

privileged (and, thus, not amenable to disclosure). The

district court eschewed an evidentiary hearing and denied the

motion to quash, but stayed production of the documents pending

appeal.

We affirm the district court's order. We hold that an

individual privilege may exist in these circumstances only to

the extent that communications made in a corporate officer's

personal capacity are separable from those made in his corporate

capacity. Because the intervenors do not allege that any of the

subpoenaed documents are solely privileged to them but rest

instead on the theory that all the documents are jointly

privileged, their claim, as a matter of law, does not survive

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the subsidiary's waiver. The joint defense agreement does not

demand a different result: privileges are created, and their

contours defined, by operation of law, and private agreements

cannot enlarge their scope. Moreover, this particular joint

defense agreement is unenforceable.

We have a second, independently sufficient ground for

our decision. The denial of the motion to quash must be upheld

in all events because the intervenors failed to generate a

descriptive list of the documents alleged to be privileged.

I. BACKGROUND

We start by recounting the events leading to this

appeal. Consistent with the secrecy that typically attaches to

grand jury matters, see, e.g., Fed. R. Crim. P. 6(e), this case

has gone forward under an order sealing the proceedings, the

briefs, and the parties' proffers. To preserve that

confidentiality, we use fictitious names for all affected

persons and corporations.

On March 26, 2001, Oldco — a Massachusetts corporation

in the business of processing, packaging, and distributing food

products — entered into a plea agreement with the United States

Attorney for the District of Massachusetts. Under the

agreement's terms, Oldco pled guilty to charges of conspiracy to

defraud the Internal Revenue Service and agreed to cooperate

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with the government's ongoing investigation of certain present

and former officers, employees, and customers. As part of this

cooperation, Oldco expressly waived applicable attorney-client

and work product privileges. Soon thereafter, a federal grand

jury issued a subpoena duces tecum to Oldco's parent

corporation, Newparent, Inc., demanding the production of

documents relating to its "rebate program" — a program under

which, according to the government, Oldco would charge certain

complicit customers more than the going rate for its products,

but would then refund the difference by payments made directly

to principals of these customers.

At the time the subpoena was served, Oldco was a

wholly-owned subsidiary of Newparent. Its records were in the

possession of Newparent's counsel, a law firm that we shall call

Smith & Jones. Newparent had acquired Oldco in June of 1998,

but the grand jury investigation focused on conduct that

occurred prior to the acquisition date. During that earlier

period, Oldco had operated as a closely held corporation, owned

by a number of members of a single family; one family member

(Richard Roe) served as its board chairman and chief executive

officer, and another (Morris Moe) served on the board and as

executive vice-president for sales and marketing. A. Nameless

Lawyer was Oldco's principal outside counsel. These three

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individuals — Roe, Moe, and Lawyer — intervened in the

proceedings and filed a motion to quash the subpoena.

The factual premise for the motion to quash is derived

largely from Lawyer's affidavit. He states that while

representing Oldco he also represented Roe and Moe in various

individual matters. Moreover, he claims to have conducted this

simultaneous representation of corporate and individual clients

under a longstanding joint defense agreement. According to

Lawyer, this agreement, although never committed to writing,

provided that communications among the three clients were

jointly privileged and could not be released without unanimous

consent. Despite the absence of any reference to this agreement

in the corporate records — there was no resolution or other vote

of the board of directors authorizing Oldco to participate in

such an arrangement — the intervenors assert that Roe, as chief

executive officer, had the authority to commit the corporation

to it.

Pertinently, Lawyer claims to have represented Oldco

and its officers in connection with the grand jury investigation

from and after October 1997 (when the grand jury served Oldco

with an earlier subpoena requesting the production of certain

customer records). He says that the oral joint defense

agreement applies to this multiple-party representation and that

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he told the government that he represented Oldco and "all of its

executives."

There is, to be sure, a written joint defense agreement

entered into by and between Lawyer, as counsel for Roe/Moe, and

Smith & Jones, as counsel for Newparent/Oldco.1 However, that

agreement was not executed until the fall of 1999 (by which time

Lawyer was no longer representing Oldco). There is no evidence

in the voluminous record (apart from Lawyer's affidavit) that

any joint defense agreement existed before that time. Moreover,

the intervenors neglected to mention the existence of an oral

joint defense agreement when Newparent acquired Oldco and

likewise failed to incorporate any reference to such a pact into

the subsequent written agreement.

Notwithstanding these discrepancies, the intervenors

solemnly maintain that the oral joint defense agreement existed

from 1990 forward; that its terms apply to the grand jury

investigation; and that it gives them a joint privilege — they

mention both attorney-client and work product privileges — in

the Oldco documents currently in the hands of Smith & Jones.

But they do not identify any particular documents as privileged,

nor do they specify the reasons why certain communications

1The written joint defense agreement need not concern us as
the grand jury has limited its request to documents predating
the execution of that agreement.

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should be considered privileged. Thus, like soothsayers

scrutinizing the entrails of a goat, we are left to scour the

record for indications of what these documents might be and what

they might contain. As best we can tell, some of the documents

comprise transcripts of interviews with Oldco employees

(including Roe and Moe); others comprise Lawyer's written

summaries of Oldco's internal investigation into the rebate

program.

Not surprisingly, the government and Oldco both filed

oppositions to the intervenors' motion to quash. In response,

the intervenors sought leave to present immunized evidence with

respect to the privilege claims. They also filed a formal offer

of proof and requested an evidentiary hearing. The district

court denied the motion to quash at a non-evidentiary hearing

held on July 2, 2001, thereby implicitly denying the

intervenors' other requests. This expedited appeal ensued.

II. JUSTICIABILITY

We turn first to a pair of threshold questions that

implicate our authority to hear and determine this appeal.

Neither question need occupy us for long.

First, we are satisfied that Roe, Moe, and Lawyer were

properly allowed to intervene in the proceedings below for the

purpose of pursuing quashal of the subpoena. Intervention is

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appropriate as of right when the disposition of an action may

impair or impede the applicant's cognizable interest. Fed. R.

Civ. P. 24(a)(2). Colorable claims of attorney-client and work

product privilege qualify as sufficient interests to ground

intervention as of right. See In re Grand Jury Proceedings

(Diamante), 814 F.2d 61, 66 (1st Cir. 1987) (implying that "the

existence of a privileged relationship or of a legitimate

property or privacy interest in the documents possessed by the

third party" is sufficient to establish standing). Clearly,

those interests would be forfeited if Newparent were to comply

with the grand jury subpoena — and, as matters now stand,

Newparent has no incentive to protect the intervenors'

interests. Consequently, this is a textbook example of an

entitlement to intervention as of right.

Second, although denial of a motion to quash a subpoena

is not usually considered a final judgment and thus is not

ordinarily an appealable event, we believe that we have

appellate jurisdiction in this instance. An exception to the

requirement of finality exists when "a substantial privilege

claim . . . cannot effectively be tested by the privilege-holder

through a contemptuous refusal [to produce the documents]."

FDIC v. Ogden Corp., 202 F.3d 454, 459-60 (1st Cir. 2000); see

also Perlman v. United States, 247 U.S. 7, 12-13 (1918)

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(recognizing that, as a practical matter, denials of an

intervenor's privilege-based motion to quash a subpoena must be

immediately appealable because no effective post-judgment remedy

otherwise would exist). Courts have invoked this exception

when, as now, "a client (who is herself a party or a grand jury

target) seeks to appeal an order compelling her attorney . . .

to produce allegedly privileged materials." Ogden, 202 F.3d at

459; accord In re Grand Jury Subpoenas, 123 F.3d 695, 697 (1st

Cir. 1997). Although in this case the documents are in the

hands of Newparent's counsel rather than in the custody of the

intervenors' counsel, this only reinforces the essential fact

that, absent an immediate appeal, the allegedly privileged

material will be disclosed. Accordingly, we have jurisdiction

to hear and determine this appeal.

III. THE MERITS

This appeal presents a smorgasbord of legal issues, but

we must forgo the temptation to sample them all. Instead, we

masticate only those issues that are necessary to a principled

resolution of the matter.

We begin by discussing the ramifications of Roe's and

Moe's claim that they were individual clients of Lawyer with

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respect to the grand jury investigation. We conclude that

although such individual representation might have occurred in

theory, no individual privilege exists as to documents in which

Oldco also has a privilege. Because no independently

enforceable privilege is alleged here, the corporation's waiver

is effective for all communications covered by the subpoena,

notwithstanding the existence vel non of the oral joint defense

agreement. In all events, the intervenors failed adequately to

inform the district court of the particular communications to

which their claims of privilege allegedly attached. In the

pages that follow, we proceed to discuss these issues one by

one.

A. Privilege Claims.

Because the attorney-client and work product privileges

differ, we treat them separately.

1. Individual Attorney-Client Privilege Claims. The

attorney-client privilege protects communications made in

confidence by a client to his attorney. See, e.g., United

States v. Mass. Inst. of Tech., 129 F.3d 681, 684 (1st Cir.

1997) (limning the scope of the privilege). Because it stands

in the way of a grand jury's right to every man's evidence, the

privilege applies only to the extent necessary to achieve its

underlying goal of ensuring effective representation through

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open communication between lawyer and client. See Fisher v.

United States, 425 U.S. 391, 403 (1976).

Roe and Moe can mount a claim of attorney-client

privilege only if, and to the extent that, Lawyer represented

them individually. If the only attorney-client privilege at

stake is that of their corporate employer, then Oldco's waiver

defeats the claim of privilege. After all, the law is settled

that a corporation's attorney-client privilege may be waived by

current management. See CFTC v. Weintraub, 471 U.S. 343, 349

(1985) ("[W]hen control of a corporation passes to new

management, the authority to assert and waive the corporation's

attorney client privilege passes as well.").

It is often difficult to determine whether a corporate

officer or employee may claim an attorney-client privilege in

communications with corporate counsel. The default assumption

is that the attorney only represents the corporate entity, not

the individuals within the corporate sphere, and it is the

individuals' burden to dispel that presumption. See United

States v. Bay State Ambul. & Hosp. Rental Serv., Inc., 874 F.2d

20, 28 (1st Cir. 1989). This makes perfect sense because an

employee has a duty to assist his employer's counsel in the

investigation and defense of matters pertaining to the

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employer's business. See United States v. Sawyer, 878 F. Supp

295, 296 (D. Mass. 1995).

To determine when this presumption bursts, several

courts have adopted the test explicated in In re Bevill, Bresler

& Schulman Asset Mgmt. Corp., 805 F.2d 120 (3d Cir. 1986). That

test enumerates five benchmarks that corporate employees seeking

to assert a personal claim of attorney-client privilege must

meet:

First, they must show they approached
[counsel] for the purpose of seeking legal
advice. Second, they must demonstrate that
when they approached [counsel] they made it
clear that they were seeking legal advice in
their individual rather than in their
representative capacities. Third, they must
demonstrate that the [counsel] saw fit to
communicate with them in their individual
capacities, knowing that a possible conflict
could arise. Fourth, they must prove that
their conversations with [counsel] were
confidential. And fifth, they must show
that the substance of their conversations
with [counsel] did not concern matters
within the company or the general affairs of
the company.

Id. at 123; accord Grand Jury Proceedings v. United States, 156

F.3d 1038, 1041 (10th Cir. 1998); United States v. Int'l Bhd. of

Teamsters, 119 F.3d 210, 215 (2d Cir. 1997); In re Sealed Case,

29 F.3d 715, 719 n.5 (D.C. Cir. 1994).

We think that Bevill's general framework is sound. Of

course, the first four elements of its test are most relevant

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when an attorney disputes a corporate officer's claim of

individual privilege. Here, however, Lawyer's affidavit makes

it clear that he represented both Roe and Moe in their personal

capacities. Thus, even though the intervenors' brief does not

specifically address the Bevill factors, we assume for

argument's sake that the first four prongs of the test are

satisfied.

With respect to the final prong, the government claims

that all of Roe's and Moe's communications were within the orbit

of Oldco's general affairs, and therefore could not be

individually privileged. In the government's view, Bevill

precludes a finding of individual representation with respect to

matters — such as the grand jury investigation into the rebate

program — that involve the corporation. We do not read Bevill

so grudgingly. As the Tenth Circuit explained:

The fifth prong of In Matter of Bevill,
properly interpreted, only precludes an
officer from asserting an individual
attorney client privilege when the
communication concerns the corporation's
rights and responsibilities. However, if
the communication between a corporate
officer and corporate counsel specifically
focuses upon the individual officer's
personal rights and liabilities, then the
fifth prong of In Matter of Bevill can be
satisfied even though the general subject
matter of the conversation pertains to
matters within the general affairs of the
company.

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Grand Jury Proceedings, 156 F.3d at 1041. We adopt this

interpretation and conclude that, theoretically, Lawyer could

have represented Roe and Moe individually with respect to the

grand jury investigation. Still, this attorney-client

relationship would extend only to those communications which

involved Roe's and Moe's individual rights and responsibilities

arising out of their actions as officers of the corporation.

2. The Corporation's Right to Waive the Attorney-

Client Privilege. Having concluded that there are potentially

some communications protected by the attorney-client privilege,

we next consider the effect of Oldco's waiver of that privilege.

The major difficulty — there are others, but we need not discuss

them here — is that the individuals' allegedly protected

communications with Lawyer do not appear to be distinguishable

from discussions between the same parties in their capacities as

corporate officers and corporate counsel, respectively, anent

matters of corporate concern. The intervenors propose that such

"dual" communications be treated as jointly privileged such that

the consent of all parties would be required to waive the

privilege. But they fail to cite authority supporting this

position, and we ultimately decline to accept it: permitting a

joint privilege of this type would unduly broaden the attorney-

client privilege by allowing parties outside a given attorney-

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client relationship to prevent disclosure of statements made by

the client.

The reference to an alleged joint defense agreement

does little to advance the intervenors' argument on this point.

"The joint defense privilege protects communications between an

individual and an attorney for another when the communications

are 'part of an ongoing and joint effort to set up a common

defense strategy.'" Bay State Ambul., 874 F.2d at 28 (citation

omitted). Because the privilege sometimes may apply outside the

context of actual litigation, what the parties call a "joint

defense" privilege is more aptly termed the "common interest"

rule. See United States v. Schwimmer, 892 F.2d 237, 243 (2d

Cir. 1989). Even when that rule applies, however, a party

always remains free to disclose his own communications. See In

re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir.

1997). Thus, the existence of a joint defense agreement does

not increase the number of parties whose consent is needed to

waive the attorney-client privilege; it merely prevents

disclosure of a communication made in the course of preparing a

joint defense by the third party to whom it was made.

In the clamor over the existence vel non of a joint

defense agreement, the parties tend to overlook case law dealing

directly with the circumstances under which statements made in

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a joint conference remain privileged. Although these cases do

not speak with one voice, they inform our resolution of the

issue. They establish that joint communications with a single

attorney are privileged with respect to the outside world

because clients must be entitled to the full benefit of joint

representation undiluted by fear of waiving the attorney-client

privilege. See Ogden, 202 F.3d at 461. Nevertheless, the

privilege does not apply in subsequent litigation between the

joint clients, see id.; in that sort of situation, one client's

interest in the privilege is counterbalanced by the other's

interest in being able to waive it.

The instance of a criminal investigation in which one

former co-client is willing to aid in the prosecution of the

other lies in the wasteland between these two doctrinal strands,

and courts have split on whether the target of the prosecution

may block disclosure in this context. See McCormick on

Evidence, § 91 at 365 n.13 (John W. Strong ed., 5th ed. 1999)

("Whether the privilege is effective where one joint client is

prosecuted and the other is willing to testify as to the joint

consultations is a question which has divided the courts."); see

also Conn. v. Cascone, 487 A.2d 186, 189-90 (Conn. 1985)

(collecting cases on both sides of the issue).

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 Although the instant case arises as a motion to quash

a subpoena, rather than as an attempt to block a former co-

client's testimony, the issue of privilege is entirely

congruent. But there is another difference here — a significant

one that cuts against the intervenors. In this iteration, the

former co-clients were not independent actors, but, rather,

corporate officers who owed a fiduciary duty to the corporation.

Faced with an analogous assertion of privilege by corporate

managers, the Fifth Circuit has held that the managers' interest

must yield to the shareholders' interest in disclosure of the

privileged materials. Garner v. Wolfinbarger, 430 F.2d 1093,

1101-04 (5th Cir. 1970). Taking a similar tack, we hold that a

corporation may unilaterally waive the attorney-client privilege

with respect to any communications made by a corporate officer

in his corporate capacity, notwithstanding the existence of an

individual attorney-client relationship between him and the

corporation's counsel.

The line we draw parallels the holding of Bevill, 805

F.2d at 124 (rejecting the contention that "because [corporate

officers'] personal legal problems were inextricably intertwined

with those of the corporation, disclosure of discussions of

corporate matters would eviscerate their personal privileges").

In this regard, we think it significant that the fifth prong of

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the Bevill test is stated in the negative: communications may

be individually privileged only when they "[do] not concern

matters within the company or the general affairs of the

company," rather than when they do concern an individual's

rights. Id. at 123 (emphasis supplied).

On this view, it follows that Roe or Moe may only

assert an individual privilege to the extent that communications

regarding individual acts and liabilities are segregable from

discussions about the corporation. When one bears in mind that

a corporation is an incorporeal entity and must necessarily

communicate with counsel through individuals, the necessity for

such a rule becomes readily apparent. Holding otherwise would

open the door to a claim of jointly held privilege in virtually

every corporate communication with counsel.

Here, neither Roe nor Moe have even attempted to make

any showing of segregability. On the contrary, their main

argument in the district court and on appeal appears to be that

the documents at issue do not lend themselves to separation into

individual and corporate categories. The intervenors' brief is

replete with references to "joint privilege," but contains no

allegation that any particular communication related solely to

the representation of Roe or Moe. Given the absence of such an

allegation and the allocation of the burden of proof (which, on

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this issue, rests with the intervenors), we perceive no error in

the district court's explicit finding that "all communications

in this case are corporate communications." That dooms the

intervenors' claim of attorney-client privilege, see Grand Jury

Proceedings, 156 F.3d at 1042 (rejecting claim of individual

privilege when "appellant has not produced for [the court's]

review the particular documents at issue nor has he otherwise

adequately demonstrated in the record that any of the documents

ordered produced were limited to the topic of his individual

legal rights and responsibilities"), and renders moot the

question of whether Roe and Moe also possessed an attorney-

client privilege in these documents.

3. The Work Product Privilege. The claim of work

product privilege raises a similar set of issues anent joint

privilege. The work product rule protects work done by an

attorney in anticipation of, or during, litigation from

disclosure to the opposing party. E.g., Sealed Case, 29 F.3d at

718. The rule facilitates zealous advocacy in the context of an

adversarial system of justice by ensuring that the sweat of an

attorney's brow is not appropriated by the opposing party.

Hickman v. Taylor, 329 U.S. 495, 511 (1947). Although the

record does not include an index of allegedly privileged

documents — a shortcoming to which we shall return — it appears

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that at least two categories of files contemplated by the

subpoena might qualify as work product: Lawyer's interviews of

employees during Oldco's internal investigation into the rebate

program, and his notes and mental impressions of the

investigation.

Roe, Moe, and Lawyer as their attorney may, at least

in theory, invoke the work product privilege as to work done

exclusively for Roe and Moe as individuals. Yet, their argument

does not claim exclusivity, 2 but, rather, amounts to an

insistence that they should have a veto over the disclosure of

documents produced for the joint benefit of the individuals and

the corporation. As in the case of the attorney-client

privilege, however, the intervenors may not successfully assert

the work product privilege with respect to such documents.

Because they effectively conceded that the work was performed,

at least in part, for the corporation, Oldco's waiver of all

privileges negates their potential claim of privilege. In these

circumstances, therefore, the work product privilege does not

preclude disclosure of the documents sought by the subpoena.

2
For example, with respect to the employee interviews
conducted by Lawyer, the intervenors argued to the lower court
that the work product privilege does not belong exclusively to
Oldco because the work was performed on behalf of all three
clients.

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 Undaunted, the intervenors argue that the presence of

the oral joint defense agreement demands a different result. We

do not agree. Although a valid joint defense agreement may

protect work product, see In re Grand Jury Subpoenas, 902 F.2d

244, 249 (4th Cir. 1990), one party to such an agreement may not

preclude disclosure of work product by another party on whose

behalf the work originally was performed. Nor can the parties,

by agreement, broaden the scope of the privilege that the law

allows. See United States v. Lee, 107 F. 702, 704 (C.C.E.D.N.Y.

1901). Such an agreement would contravene public policy (and,

hence, would be unenforceable).3

We add, moreover, that the type of joint defense

agreement described in Lawyer's affidavit would be null and

void. After all, a primary requirement of a joint defense

agreement is that there be something against which to defend.

Bay State Ambul., 874 F.2d at 28. In other words, a joint

defense agreement may be formed only with respect to the subject

of potential or actual litigation. Polycast Tech. Corp. v.

Uniroyal, Inc., 125 F.R.D. 47, 50 (S.D.N.Y. 1989). Lawyer's

affidavit avers that his three clients (Oldco, Roe, and Moe)

3 This same reasoning applies to defeat the intervenors'
claim that the parties' understanding, at the time they entered
into the oral joint defense agreement, somehow serves to trump
the normal operation of the attorney-client privilege. See Lee,
107 F. at 704.

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entered into an oral joint defense agreement in 1990, at which

time no particular litigation or investigation was in prospect.

The agreement thereafter remained in effect, Lawyer says,

attaching ex proprio vigore to all matters subsequently arising

(including the current grand jury investigation). The law will

not countenance a "rolling" joint defense agreement of this

limitless breadth.

The rationale for recognizing joint defense agreements

is that they permit parties to share information pertinent to

each others' defenses. See Hunydee v. United States, 355 F.2d

183, 185 (9th Cir. 1965). In an adversarial proceeding, a

party's entitlement to this enhanced veil of confidentiality can

be justified on policy grounds. But outside the context of

actual or prospective litigation, there is more vice than virtue

in such agreements. Indeed, were we to sanction the

intervenors' view, we would create a judicially enforced code of

silence, preventing attorneys from disclosing information

obtained from other attorneys and other attorneys' clients.

Common sense suggests that there can be no joint defense

agreement when there is no joint defense to pursue. We so hold.4

4
Given this holding, we need not address other potential
problems with the purported joint defense agreement in this case
(e.g., the absence of any indicium of corporate authority and
the related question of whether corporate officers have the
power to bind a corporation to such agreements when a conflict

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 B. Fed. R. Civ. P. 45(d)(2).

As an alternate ground for our decision, we note that

the motion to quash was properly denied because the intervenors

failed to present sufficient information with respect to the

items to which their claim of privilege attaches. The Civil

Rules specifically provide that:

When information subject to a subpoena is
withheld on a claim that it is privileged or
subject to protection as trial preparation
materials, the claim shall be made expressly
and shall be supported by a description of
the nature of the documents, communications
or things not produced that is sufficient to
enable the demanding party to contest the
claim.

Fed. R. Civ. P. 45(d)(2). The operative language is mandatory

and, although the rule does not spell out the sufficiency

requirement in detail, courts consentiently have held that the

rule requires a party resisting disclosure to produce a document

index or privilege log. See, e.g., Bregman v. Dist. of

Columbia, 182 F.R.D. 352, 363 (D.D.C. 1998); First American

Corp. v. Al-Nahyan, 2 F. Supp. 2d 58, 63 n.5 (D.D.C. 1998); see

also Avery Dennison Corp. v. Four Pillars, 190 F.R.D. 1, 1

(D.D.C. 1999) (describing privilege logs as "the universally

accepted means" of asserting privilege claims in the federal

courts); cf. Vaughn v. Rosen, 484 F.2d 820 (D.C. Ct. App. 1973)

of interest plainly exists).

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(articulating the justifications for requiring privilege logs in

the context of the FOIA). A party that fails to submit a

privilege log is deemed to waive the underlying privilege claim.

See Dorf & Stanton Communications, Inc. v. Molson Breweries, 100

F.3d 919, 923 (Fed. Cir. 1996) (holding that failing "to provide

a complete privilege log demonstrating sufficient grounds for

taking the privilege" waives the privilege). Although most of

the reported cases arise in the context of a claim of attorney-

client privilege, the "specify or waive" rule applies equally in

the context of claims of work product privilege. See, e.g.,

Smith v. Conway Org., Inc., 154 F.R.D. 73, 76 (S.D.N.Y. 1994).

In a somewhat indirect fashion, the intervenors suggest

that they were hampered in their ability to present a list of

privileged documents by the district court's refusal to hold an

evidentiary hearing. This suggestion does not withstand

scrutiny. After all, the intervenors were not without knowledge

of the communications to which the subpoena pertained; Lawyer

originally had possession of them and turned them over to Smith

& Jones only when Newparent decided to change counsel. Despite

this knowledge, the intervenors made no effort to prepare a

privilege log. That omission is fatal.

Privilege logs do not need to be precise to the point

of pedantry. Thus, a party who possesses some knowledge of the

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nature of the materials to which a claim of privilege is

addressed cannot shirk his obligation to file a privilege log

merely because he lacks infinitely detailed information. To the

contrary, we read Rule 45(d)(2) as requiring a party who asserts

a claim of privilege to do the best that he reasonably can to

describe the materials to which his claim adheres.

At any rate, the district court did not err by failing

to hold an evidentiary hearing. We test a trial court's

decision on whether or not to convene an evidentiary hearing for

abuse of discretion. E.g., David v. United States, 134 F.3d

470, 477 (1st Cir. 1998). Our cases exhibit a strong preference

for

a "pragmatic approach" to the question of
whether, in a given situation, an
evidentiary hearing is required. The key
determinant is whether, "given the nature
and circumstances of the case . . . the
parties [had] a fair opportunity to present
relevant facts and arguments to the court
and to counter the opponent's submissions."

In re Thirteen Appeals Arising Out of the San Juan Dupont Plaza

Hotel Fire Litig., 56 F.3d 295, 302 (1st Cir. 1995) (quoting

Aoude v. Mobil Oil Corp., 862 F.2d 890, 893-94 (1st Cir. 1988)).

In this instance, the paper record is quite extensive,

containing affidavits from Lawyer as well as from

representatives of Newparent and Smith & Jones. Furthermore,

the intervenors had ample opportunity to respond to the other

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side's arguments, and took advantage of this opportunity by

submitting a lengthy offer of proof. Under the circumstances,

the district court was not obliged to convene an evidentiary

hearing to fill in gaps in the intervenors' privilege claims.

See Aoude, 862 F.2d at 894 (observing that matters often can be

"heard" adequately on the papers).

Next, the intervenors lament that the district court's

failure to rule on their motion for immunity deprived them of

the opportunity to supplement the record with further evidence.

Even if the district court had denied the immunity motion, the

intervenors reason, they would have had an opportunity to decide

whether to submit affidavits at the risk of incriminating

themselves. This lamentation does not strike a responsive

chord.

For one thing, the intervenors' failure to furnish a

privilege log cannot plausibly be said to have resulted from the

lack of an explicit ruling on the motion for immunity. Roe and

Moe could have submitted a privilege log by proffer or over an

attorney's signature without in any way compromising their Fifth

Amendment rights.

For another thing, although it is plainly the better

practice for a trial court to rule explicitly on every

substantial motion, it has long been accepted that a trial court

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may implicitly deny a motion by entering judgment inconsistent

with it. Wimberly v. Clark Controller Co., 364 F.2d 225, 227

(6th Cir. 1966). In this case, the district court's rejection

of the motion to quash effectively denied the intervenors'

motion for a grant of immunity. That ruling hardly can be

questioned on the merits. The intervenors point to no case

authorizing a grant of judicial immunity to a grand jury target

in order to facilitate the presentation of a privilege claim,

and they offer no persuasive reason why this case should be the

first.

What remains is the intervenors' unhappiness with what

they characterize as the district court's rush to judgment. The

facts are simple: the district court convened a status

conference and then converted the status conference into a non-

evidentiary hearing on the merits of the intervenors' privilege

claims. The proper time to raise an objection to this procedure

was directly after the court's announcement of its intention to

proceed to the merits, but the intervenors stood mute. Having

neither contemporaneously objected to the court's procedural

ruling nor sought a continuance, the intervenors have waived any

right to complain about the court's timing. See In re United

States (Franco), 158 F.3d 26, 32 n.3 (1st Cir. 1998); United

States v. Diaz-Villafane, 874 F.2d 43, 47 (1st Cir. 1989).

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IV. CONCLUSION

We need go no further. We hold that the intervenors'

claims of privilege fail because the oral joint defense

agreement on which they rely cannot defeat Oldco's express

waiver of privilege, and, alternatively, because the intervenors

failed without justification to produce a privilege log (thereby

waiving the underlying attorney-client and work product

privileges). Similarly, the district court did not err either

in refusing to convene an evidentiary hearing or in ruling

simultaneously on the motion to quash and the motion for

immunity. Accordingly, the order refusing to nullify the grand

jury subpoena is unimpugnable.

Affirmed.

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