United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3938
                                   No. 06-4030
                                   ___________

                                      * Appeal from the United States
In re: Green Grand Jury Proceedings   * District Court for the
                                      * District of Minnesota.
                                 ___________

                             Submitted: March 15, 2007
                                Filed: July 20, 2007
                                 ___________

Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

      The district court1 granted in part and denied in part the government’s motion
to compel the production of documents and an attorney’s testimony before a federal
grand jury. The government appeals that portion of the district court’s order denying
its motion to compel. The client cross-appeals, contesting the order insofar as it
granted the motion. We affirm.

                                         I.

      In light of the need to observe the requirements of grand jury secrecy, we will
provide only a basic recitation of the facts. In the course of earlier, unrelated


      1
       The Honorable James M. Rosenbaum, Chief Judge, United States District
Court for the District of Minnesota.
proceedings, the client was the target of an investigation into whether he had received
improper payments. The client received the assistance of the attorney in responding
to these accusations and provided the attorney with an alternate, non-criminal
explanation for his conduct. The attorney relied upon this explanation in formulating
his legal advice and drafted documents that memorialized what the client said had
taken place. The government contends that the client knowingly lied to the attorney
by providing the attorney with a false back-story for the monies the client had
allegedly improperly received.

       In November 2005, a federal grand jury issued subpoenas to the client’s
attorney and the attorney’s law firm, seeking documents as well as the attorney’s
testimony. In response to the subpoena, the law firm produced a privilege log,
identifying 1,604 documents that it claims are protected under the attorney-client or
work product privileges. The attorney declined to answer the grand jury’s questions,
citing attorney-client privilege. In June 2006, the grand jury indicted the client and
another party.

       The government moved to compel the production of the documents and the
attorney’s testimony. The government argued that because the client had used his
attorney’s services to perpetrate a fraud, the attorney-client and attorney work product
privileges were vitiated under the crime-fraud exception to these privileges.

       The district court reviewed 179 documents in camera, 139 of which the
government had asked the court to examine. Following a hearing and briefing by the
parties, the district court concluded that, under the crime-fraud exception, the client
could not assert the attorney-client or work product privileges because the government
had presented a prima facie case that the client had used his attorney’s counsel in
furtherance of a fraud. The court also concluded that because there was no evidence
that the attorney had known of the client’s fraud, the crime-fraud rule did not preclude
the attorney from asserting his own work product privilege. The district court ordered

                                          -2-
the disclosure of thirty-six documents that it determined had been generated in
furtherance of the fraud, but permitted the attorney to assert his work product privilege
as to any opinion work product that might be contained therein. The district court
determined that the rest of the documents it had reviewed were not discoverable under
the crime-fraud exception because they were not generated in furtherance of any
fraud.2 The district court also permitted the attorney to decline to answer the grand
jury’s questions, except for questions relating to the origins of documents. The
government contests the redactions and the restrictions on the attorney’s grand jury
testimony. The client appeals that portion of the district court’s order requiring the
production of the thirty-six documents and the attorney’s limited testimony.

                                          II.

A.    Issues Pertaining Primarily to the Government’s Appeal

       Attorney-client communications and attorney work product are privileged and
are not ordinarily discoverable – even by the grand jury. See In re Grand Jury
Subpoenas Duces Tecum, 

, 206 (8th Cir. 1985) (noting that the grand
jury’s “broad investigatory powers do not require production of evidence protected
by a valid claim of privilege”); In re Grand Jury Proceedings (Duffy), 

,
845 (8th Cir. 1973) (work product privilege applies in grand jury proceedings).
Neither the attorney-client privilege nor the work product privilege is absolute,
however. Under the crime-fraud exception, attorney-client privilege “does not extend


      2
        The government suggests in its opening brief that the district court shielded
these documents from discovery not because they were not generated in furtherance
of a fraud, but because the court had determined that all of the documents it had
reviewed were opinion work product. The government’s characterization of the
district court’s order is mistaken. The district court would not have permitted the
discovery of the thirty-six documents had it considered all 179 documents to be
opinion work product.

                                          -3-
to communications made for the purpose of getting advice for the commission of a
fraud or a crime.” United States v. Zolin, 

, 563 (1989) (quotation
omitted). Accordingly, we have recognized that, under the crime-fraud exception,
“‘[a]ttorney-client communications lose their privileged character when the lawyer is
consulted not with respect to past wrongdoings but rather to further a continuing or
contemplated criminal fraud or scheme.’” Gundacker v. Unisys Corp., 

,
848 (8th Cir. 1998) (quoting In re Berkley & Co., 

, 553 (8th Cir. 1980)).
We have not yet explicitly held that the crime-fraud exception applies to the work
product privilege as well. See In re Murphy, 

, 337 (8th Cir. 1977)
(stating that the applicability of the crime-fraud exception to the work product
privilege is an unresolved question). We so hold today. As set forth in greater detail
below, a client who has used his attorney’s assistance to perpetrate a crime or fraud
cannot assert the work product privilege as to any documents generated in furtherance
of his misconduct. We also hold that an attorney who does not knowingly participate
in the client’s crime or fraud may assert the work product privilege as to his opinion
work product.

       The work product privilege is “distinct from and broader than the attorney-
client privilege.” In re 

(quotation omitted). While the
purpose of the attorney-client privilege “is to encourage clients to make a full
disclosure of all favorable and unfavorable facts to their legal counsel,” 

product privilege “functions not merely and (perhaps) not mainly to assist the client
in obtaining complete legal advice but in addition to establish a protected area in
which the lawyer can prepare his case free from adversarial scrutiny.” In re Special
September 1978 Grand Jury (II), 

, 62 (7th Cir. 1980). “Because the work
product privilege protects not just the attorney-client relationship but the interests of
attorneys to their own work product,” both the attorney and the client hold the
privilege. United States v. Under Seal (In re Grand Jury Proceedings #5), 

, 250 (4th Cir. 2005) (citation omitted).



                                          -4-
        Other circuits have concluded that a client who has used an attorney’s
assistance in furtherance of a fraud may not assert the work product privilege. See,
e.g., In re Special September 1978 Grand Jury 

(“When the case
being prepared involves the client’s ongoing fraud, however, we see no reason to
afford the client the benefit of this doctrine.”). We agree. “Although there is a
societal interest in enabling clients to get sound legal advice, there is no such interest
when the communications or advice are intended to further the commission of a crime
or fraud.” United States v. Richard Roe, Inc. (In re Richard Roe, Inc.), 

, 40
(2d Cir. 1995).

      An attorney’s independent assertion of his work product privilege, on the other
hand, stands on a very different footing because the attorney’s privilege is based on
the attorney’s interest in protecting his opinions and thought processes from
disclosure. This is a protection that benefits all of the attorney’s clients because it
accords the attorney a measure of privacy within which he can candidly compose his
thoughts.

       To determine the proper scope of an attorney’s work product privilege when the
client has committed a crime or a fraud, it is necessary first to distinguish between
two kinds of work product: ordinary work product, which includes “raw factual
information,” and opinion work product, which encompasses “counsel’s mental
impressions, conclusions, opinions or legal theories.” Baker v. General Motors Corp.
(In re GMC), 

, 1054 (8th Cir. 2000). We have recognized that opinion
work product enjoys “substantially greater protection than ordinary work product.”
In re 

. Ordinary work product is generally discoverable
“upon a showing of substantial need and an inability to secure the substantial
equivalent of the materials by alternate means without undue hardship.” 

product, by contrast, “enjoys a nearly absolute immunity and can be discovered
only in very rare and extraordinary circumstances.” 

for example,
that opinion work product might be discoverable if it contained evidence of the

                                           -5-
attorney’s misconduct. 

n.19. The central question regarding opinion work
product, then, is whether client misconduct (of which the attorney is unaware) is a
“rare and extraordinary circumstance” warranting an exception to the “nearly absolute
immunity” adhering to opinion work product.

       Other circuits recognizing the ordinary/opinion work product distinction have
concluded that an attorney may assert the work product privilege with regard to
opinion work product even if the client has used the attorney’s services to commit a
crime or perpetrate a fraud, so long as the attorney was unaware that the client was
doing so. In re Grand Jury Proceedings 

(holding that “while the
attorney-client privilege may be vitiated without showing that the attorney knew of
the fraud or crime, those seeking to overcome the opinion work product privilege must
make a prima facie showing that the attorney in question was aware of or a knowing
participant in the criminal conduct” (quotation omitted)); In re Grand Jury
Proceedings, 

, 541 (9th Cir. 1989) (affirming district court’s order
permitting an innocent attorney to refuse to disclose opinion work product); In re
Antitrust Grand Jury, 

, 168 (6th Cir. 1986) (ordering the district court
to require disclosure of opinion work product should it find that the attorneys were
“knowing and willing conspirators in the alleged crime”); In re Special September
1978 Grand Jury 

(remarking that requiring an innocent attorney
to disclose “mental impressions, conclusions, opinions, and legal theories”would be
an “invasion not justified by the misfortune of representing a fraudulent client”).3 In

      3
       The government suggests that some circuits have held that an attorney’s work
product privilege may be vitiated by client fraud even if the attorney was not aware
of the client’s wrongdoing. In most of the cases cited by the government for this
proposition, however, it appears that the clients were the parties on appeal — not the
attorneys. See In re Richard Roe, Inc., 

, 39 (2d Cir. 1995); In re Grand
Jury Subpoena Duces Tecum, 

, 1036 (2d Cir. 1984); In re Grand Jury
Subpoena, 

, 335 (5th Cir. 2005). In the one case in which the attorneys
were parties, the court determined that they lacked standing. In re Grand Jury
Proceedings, 

, 800 (3d Cir. 1979). Accordingly, it is not clear that the

                                         -6-
keeping with the significant protection we accord opinion work product, we hold, as
have our sister circuits, that an attorney who is not complicit in his client’s
wrongdoing may assert the work product privilege with respect to his opinion work
product. In light of the lesser protection accorded ordinary work product, we
conclude that an innocent attorney may be required to disclose ordinary work product.
Cf. In re Grand Jury Proceedings 

(“Because fact work product
enjoys less protection than opinion work product, it may be discovered upon prima
facie evidence of a crime or fraud as to the client only and thus even when the attorney
is unaware of the crime of fraud.”); In re Antitrust Grand 

(concluding that ordinary work product may be disclosed if there has been client
fraud).

       The government contends that even if the district court correctly held that the
attorney’s opinion work product was shielded from disclosure, the district court did
not properly draw the line between ordinary and opinion fact work product. In
particular, the government disagrees with the district court’s determination that the
attorney’s notes and his recollections about conversations he may have had with the
client were protectable as opinion work product. We discern no error in the district
court’s division between opinion and fact work product.

       “Notes and memoranda of an attorney, or an attorney’s agent, from a witness
interview are opinion work product entitled to almost absolute immunity.” 

. An attorney’s notes of a witness interview are opinion work product
because “when taking notes, an attorney often focuses on those facts that she deems
legally significant.” 

district court correctly determined that the
attorney’s notes were protectable as opinion work product. The district court’s
determination regarding the attorney’s recollections of conversations with the client



attorneys’ interest in their work product was squarely before the respective courts in
these cases.

                                          -7-
was also sound. In Duffy, we concluded that an attorney’s recollections of
conversations with a client were protectable work 

.
Although, as the government points out, Duffy did not explicitly distinguish between
ordinary and opinion work product, Duffy did remark that testimony regarding an
attorney’s recollections of conversations with clients would reveal the attorney’s
mental impressions and thought processes. 

words, the attorney’s
recollections are protectable as opinion work product. In sum, we conclude that the
district court drew an appropriate line between ordinary and opinion work product in
this case.4

B.    Issues Pertaining Primarily to the Client’s Cross-Appeal5

       The client takes issue with the standard the district court used to determine that
the thirty-six documents were generated in furtherance of a crime or fraud. The
district court held that the crime-fraud standard was met because the government’s
evidence, if it were believed by the trier of fact, would establish the existence of a
crime or fraud. The district court also determined that it would have found that the


      4
        The government also suggests in its responsive brief that because the district
court erred in drawing the line between opinion and fact work product, it may have
erred in its determination that the majority of the documents it had reviewed were not
generated in furtherance of the fraud. We disagree.
      5
        The government argues that the client’s appeal was rendered moot because the
client produced the documents and did not take advantage of the district court’s offer
to stay compliance with its order pending appeal. We disagree. First, the appeal is
not moot because the courts can still offer some “effectual relief” by ordering the
return or destruction of the documents. Church of Scientology v. United States, 

, 12 (1992). Second, we are not persuaded that the client’s decision to forgo the
district court’s offer to stay the production rendered the appeal moot, even if this
inaction may be relevant to waiver. Regarding waiver, the government has not
provided us with sufficient reason to conclude that we should not entertain the client’s
arguments.

                                          -8-
crime-fraud exception applied even if it had used a probable cause standard, as the
client had suggested. The client argues on appeal that otherwise privileged documents
should be discoverable under the crime-fraud exception only if the district court finds
“by clear and convincing evidence” that the documents were generated in furtherance
of a crime or fraud. The client also contends that a district court should take into
account evidence countervailing the application of the crime-fraud exception.6

       With respect to the quantum of proof, before the crime-fraud exception may be
applied, the moving party must “make a prima facie showing that the legal advice has
been obtained in furtherance of an illegal or fraudulent activity.” United States v.
Horvath, 

, 562 (8th Cir. 1984); see also In re 

(“To invoke [the crime-fraud] exception, there must be a prima facie showing that the
client was engaged or planned to engage in illegal or fraudulent activity when he
sought the legal advice.”). Courts of appeals have articulated varying standards
regarding the quantum of proof necessary to make this prima facie showing. Compare
In re Grand Jury Proceedings (Corporation), 

, 381 (9th Cir. 1996)
(requiring “reasonable cause to believe” that the attorneys were being utilized in
furtherance of a crime or fraud (quotation omitted)), and In re Antitrust Grand Jury,

, 166 (6th Cir.1986) (requiring a prima facie showing based on evidence
that would provide a prudent person with “‘a reasonable basis to suspect the
perpetration of a crime or fraud’” (quoting In re Grand Jury Subpoena Duces Tecum,

, 1039 (2d Cir. 1984))), with Haines v. Liggett Group, Inc., 

, 95-96 (3d Cir. 1992) (requiring “evidence which, if believed by the fact-finder,
would be sufficient to support a finding that the elements of the crime-fraud exception
were met”), In re Grand Jury Subpoena, 

, 336 (5th Cir. 2005) (requiring
evidence “such as will suffice until contradicted and overcome by other evidence” to

       6
         Because the district court articulated an “evidence if believed by a trier of fact”
standard, we will assume that contrary evidence did not factor into the final decision.
It is clear, however, that the district court did consider each party’s legal arguments.


                                            -9-
establish crime or fraud (quotation omitted)), In re Sealed Case, 

, 50 (D.C.
Cir. 1997) (requiring evidence “that if believed by the trier of fact would establish the
elements of an ongoing or imminent crime or fraud” (quotation omitted)), and In re
Grand Jury Proceedings 

(requiring evidence “that, if believed by
a trier of fact, would establish the elements of some violation that was ongoing or
about to be committed” and noting that “proof either by a preponderance or beyond
a reasonable doubt of the crime or fraud is not required”).

       In considering the disparate formulations regarding the level of proof necessary
to justify the application of the crime-fraud exception, we look to Supreme Court
precedent. In Zolin v. United States, the Court considered, inter alia, the level of
proof necessary to justify a district court’s ordering the production of documents for
the purpose of an in camera review to determine whether the crime-fraud exception
applied. The Court ruled that a district court may not order the production of
documents for in camera review unless the party urging production has made the
threshold showing “of a factual basis adequate to support a good faith belief by a
reasonable person’ that the crime-fraud exception applies.” 

Although the
Court did not specify the level of proof necessary to trigger the crime-fraud exception,
it suggested that a higher burden than that required for in camera review would be
necessary to overcome the privilege. 

. We believe that both
of the standards enunciated by the district court meet this higher threshold. One
requires that crime or fraud be “established,” and the other requires that there be
probable cause to believe that a crime or fraud had been perpetrated.

       We reject the client’s suggestion that fraud must be proved by clear and
convincing evidence. Apart from the fact that it is not harmonious with the standards
articulated by our sister circuits,7 the standard is too exacting for proceedings at the

      7
       The client contends that the “Tenth Circuit has indicated its agreement with a
‘substantial and competent evidence’ standard,” citing Intervenor v. United States (In
re Grand Jury Subpoenas), 

(10th Cir. 1998). This case does not assist

                                          -10-
grand jury stage. The Supreme Court has cautioned that any rule that “would saddle
a grand jury with minitrials and preliminary showings would assuredly impede its
investigation and frustrate the public’s interest in the fair and expeditious
administration of the criminal laws.” United States v. Dionisio, 

, 17 (1973);
see also In re Grand Jury Investigation, 

, 1226 (11th Cir. 1987) (“If
courts always had to hear testimony and conflicting evidence on such matters, the
rationale behind the prima facie standard – the promotion of speed and simplicity at
the grand jury stage – would be lost.”). The grand jury is an investigative body; we
do not believe that it would be prudent to “saddle” its proceedings with a clear and
convincing evidence standard, which would unduly impede its investigation.

       We turn next to the related question whether, in the grand jury context, the
district court may be or is required to consider evidence presented in opposition to the
application of the crime-fraud exception. We have suggested that in a civil case the
party opposing the application of the crime-fraud exception is entitled to present
countervailing evidence. In re General Motors Corp., 

, 716 (8th Cir.
1998); see also UMG Recording, Inc. v. Bertelsmann AG (In re Napster, Inc.
Copyright Litig.), 

, 1093 (9th Cir. 2007) (holding that a party has the
right to present countervailing evidence in civil cases). Moreover, In re Murphy
implies that consideration of contrary evidence may properly undermine the
government’s prima facie 

(noting that the government’s
evidence regarding one client, which was “ambiguous and controverted,” was not
“sufficiently convincing to support a prima facie case of fraud” and that the evidence
pertaining to another client was infirm, in part, because evidence of the alleged crimes
was found insufficient in two trials on the merits).




the client. Although the Tenth Circuit affirmed the district court, which used the
“substantial and competent evidence” standard, the court gave no indication that a
lesser burden would have been inappropriate. 

                                         -11-
        The “rules of the game” may be different in the grand jury context, however.
In re Grand Jury Subpoena, 

, 218 (3d Cir. 2000). As we noted earlier,
grand jury proceedings should not be encumbered with procedures that would
frustrate the efficient execution of its investigative purposes. In light of this concern,
the Sixth Circuit concluded in In re Antitrust Grand Jury that “the district court did not
err in considering only the evidence submitted by the 

,
remarking that “[i]f the district court were required to weigh all conflicting evidence,
it would be tantamount to a mini-trial, which the courts do not sanction at the grand
jury stage.” 

The Tenth Circuit has observed that determining whether a
crime has occurred is best determined “only in a trial on the merits,” adding that “[t]he
contest of a subpoena may not be converted into a preliminary trial.” In re September
1975 Grand Jury Term, 

, 737 (10th Cir. 1976). Moreover many of the
formulations regarding the requisite quantum of proof set forth above imply that no
contrary evidence should be considered. See In re Grand Jury 

(whether the moving party’s evidence is “such as will suffice until contradicted
and overcome by other evidence” to establish crime or fraud (quotation omitted); In
re Sealed 

(requiring evidence “that if believed by the trier of fact
would establish the elements of an ongoing or imminent crime or fraud” (citation and
quotation marks omitted)). But see Intervenor v. United States (In re Grand Jury
Subpoenas), 

, 663 (10th Cir. 1998) (noting that the district court
“understood it had the authority to hear rebuttal evidence”).

       We need not decide today whether the district court may or should consider
contrary evidence. Even if the district court could have (or should have) accorded the
countervailing evidence some measure of consideration, we do not believe that
consideration of the contrary evidence in this case would have properly affected the
district court’s crime-fraud determination. The client’s rebuttal evidence appears to
consist primarily of statements by the client and others that essentially convey the
client’s innocent explanations for his conduct. The assessment of credibility will
typically be better left to the fact-finder, which may, in this case, later credit the

                                          -12-
client’s explanations. Nor should the district court’s crime-fraud inquiry devolve into
a mini-trial, with the district court engaging in a finely calibrated weighing of the
evidence. Accordingly, even if it had been proper for the district court to accord the
contrary evidence some measure of consideration (again, a matter we do not decide
today), we do not believe that such consideration would extend to rejecting an
otherwise sound prima facie case merely because the district court is more persuaded
by the client’s explanations.8

      The client also argues that the crime-fraud exception is inapplicable because he
had simply consulted his attorney in good faith about the legal implications of prior
conduct. This argument fails. We review the district court’s crime-fraud ruling for
an abuse of discretion. In re Grand Jury Subpoenas Duces 

.
Considering the district court’s familiarity with the record, which familiarity “should
not be lightly regarded,” we accord its determinations considerable deference. 

indicates that the client had never sought advice regarding prior conduct
because he had never told his attorney what that conduct was. Instead, the
government has made a prima facie showing that the client lied about his prior
conduct by providing a false back-story that became the basis of the attorney’s legal
advice.9


      8
        We leave open the possibility that, in some circumstances, weighing contrary
evidence or rejecting the government’s evidence could be warranted. There may be
cases, for example, where the government’s evidence appears so facially unreliable
(or the countervailing evidence so compelling) that a more critical gaze, perhaps
informed by contrary evidence, may be appropriate. The client suggests, for example,
that it would not be appropriate to assume that the government’s evidence is true if
that evidence consists of “testimony of a demonstrably incompetent, confused, or
biased witness.” That may well be true, but we need not reach that conclusion today
because the government’s evidence does not suffer from such deficiencies.
      9
       The client cites In re BankAmerica Corp. Secs. Litig., 

(8th Cir.
2001), for the proposition that soliciting an attorney’s advice in support of a “cover-
up” will not trigger the crime-fraud exception. The client’s reliance upon

                                         -13-
       The client also suggests that he did not solicit his attorney’s assistance in
committing a fraud and never suggested that any particular course of action be
undertaken, but merely acquiesced in counsel’s advice. As the government points out,
however, it cannot be expected that a client seeking to enlist an attorney’s
(unknowing) aid in perpetrating a fraud will provide his attorney with precise legal
directions for carrying it out. After all, the client is relying on the attorney’s expertise.
In this case, there is evidence that the client, in the face of allegations of wrongdoing,
relayed to his attorney a false explanation for his conduct and that his attorney relied
upon this false explanation in, inter alia, executing a legal response to the
accusations. In other words, even if the client did not necessarily have any precise
legal response in mind, the evidence indicates that he knowingly took advantage of
his attorney’s expertise in aid of his endeavor to mislead others with a false cover-
story regarding his conduct. See In re Richard Roe, 

(remarking that
the crime-fraud exception applies when the client intends to use the attorney’s services
“to facilitate or to conceal the criminal activity”). In light of the foregoing, we can
discern no abuse of discretion in the district court’s crime-fraud determination.

       The client contends, finally, that the subpoena should have been quashed in its
entirety because the government is using the grand jury subpoena as a way of
obtaining pre-trial discovery against him. The government may not use the grand



BankAmerica is misplaced. In that case, the client sought legal advice regarding its
disclosure obligations under securities laws and then committed an unintentional
disclosure violation by not disclosing certain losses it had sustained on some loans.
We held that “the crime-fraud exception does not apply when a publicly held company
seeks legal advice concerning its disclosure obligations and then commits an
unintentional disclosure 

. We added that the crime-fraud
exception will apply if a client seeks “legal advice in furtherance of intentional
securities law fraud.” 

present case, there is a prima facie case that the client
sought the attorney’s advice to perpetrate a fraud. It also bears mention that in
BankAmerica, there was no “cover-up” of wrongdoing; the nondisclosure itself was
the wrongdoing.

                                            -14-
jury’s investigative powers “for the sole or dominant purpose of preparing a pending
indictment for trial.” United States v. Puckett, 

, 770 (8th Cir. 1998)
(quotation omitted). If the grand jury proceedings are directed toward other charges
or persons, “its scope cannot be narrowly circumscribed and any collateral fruits from
bona fide inquiries may be utilized by the government.” United States v. Wadlington,

, 1074 (8th Cir. 2000) (quotation omitted). The government has
represented to the district court and to us that the grand jury is investigating another
party. The client contends that this assertion is belied by the fact that the subpoena
seeks information pertaining to the client rather than another individual. Having
reviewed the record, we conclude that this argument lacks merit.

      The judgement is affirmed.
                     ______________________________




                                         -15-