Court of Appeals filing

Appeals court ruling on e-mails a setback for McDonnell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1957

In Re:

Grand Jury Subpoena

--------------------------UNDER SEAL 1; UNDER SEAL 2,
Intervenors - Appellants,
v.
UNITED STATES OF AMERICA,
Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
John A. Gibney, Jr.,
District Judge. (3:12-MS-00256-1)

Argued:

September 16, 2013

Decided:

October 16, 2013

Before MOTZ, KING, and THACKER, Circuit Judges.

Affirmed in part and vacated in part by unpublished per curiam
opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Appellants 1
granting

court

Compel

order

In

district

to

court's

Testimony Pursuant to Grand Jury Subpoena (the "Motion").
the

Motion

district

and

order,

government's

the

Documents

its

the

challenge

concluded

that:

(1)

certain

emails sent by a government-employed lawyer were not protected
by the attorney-client privilege, and (2) the attorney-client
privilege does not exist between a government official and a
government-employed

lawyer

in

the

context

of

a

criminal

investigation.
We affirm the order of the district court only as to
the emails in question.

We vacate the remainder of the court's

order.
I.
During the course of a grand jury investigation, the
government

issued

a

subpoena

duces

tecum

to

one

of

the

Appellants requiring, inter alia, the production of "all emails"
between

that

Appellant

referencing certain topics.

and

a

government-employed

App. 35. 2

lawyer

The Appellant listed two

1

Because this appeal concerns an ongoing grand jury
investigation, "we use generic terms to refer" to the parties
involved.
In re: Grand Jury Subpoena, 341 F.3d 331, 333 n.1
(4th Cir. 2003).
2

Citations to "App." refer to the Appendix filed by the
parties in this appeal. The Appendix has been filed under seal.

2

such

emails

on

attorney-client

its

privilege

privilege.

log

See

as

id.

being
at

protected

30.

The

by

the

government

subsequently filed the Motion, which requested not only a ruling
that the Appellant "failed to meet its burden of demonstrating
that

the

documents

withheld

are

privileged,"

but

also

"a

judicial determination that no . . . attorney-client privilege
exists between" the Appellant and a government-employed lawyer.
Id. at 1.
The
second

district

Appellant

explaining,

"the

court

to

held

intervene,

evidence

a

hearing,

and

produced

permitted

granted

in

this

the

case

the

Motion,
does

not

establish that the privilege applies in this case," and more
broadly, "the attorney-client privilege may not be asserted in
criminal

investigations

to

protect

communications

between

government official and a government-employed lawyer."

a

App. 88.

Appellants filed a timely notice of appeal.
II.
A.
This

court

reviews

a

district

court's

evidentiary

rulings -- including privilege determinations -- for abuse of
discretion, "factual findings as to whether a privilege applies
for

clear

novo."

error,

and

the

application

of

legal

principles

de

United States v. Hamilton, 701 F.3d 404, 407 (4th Cir.

2012).
3

It

is

well-settled

that

"confidential

conversations

between a defendant and his counsel generally are protected by
the attorney-client privilege, which affords the communications
complete protection from disclosure."
524

F.3d

omitted).

501,

523

This

(4th
court

Cir.
has

2008)
held,

United States v. Lentz,
(internal

"[t]he

quotation

burden

is

marks

on

the

proponent of the attorney-client privilege to demonstrate its
applicability.
attorney-client

The proponent must establish not only that an
relationship

existed,

but

also

that

the

particular communications at issue are privileged and that the
privilege was not waived."
331, 335 (4th Cir. 2003).

In re: Grand Jury Subpoena, 341 F.3d
The proponent must prove,

(1) the asserted holder of the privilege is or sought
to become a client;
(2) the person to whom the communication was made (a)
is a member of the bar of a court, or his subordinate
and (b) in connection with this communication is
acting as a lawyer;
(3) the communication relates to a fact of which the
attorney was informed (a) by his client (b) without
the presence of strangers (c) for the purpose of
securing primarily either (i) an opinion on law or
(ii) legal services or (iii) assistance in some legal
proceeding, and not (d) for the purpose of committing
a crime or tort; and
(4) the privilege has been (a) claimed and (b) not
waived by the client.
Lentz, 524 F.3d at 523 (internal quotation marks omitted).
We agree with the district court that Appellants have
not met their burden of establishing the emails are protected by
4

the attorney-client privilege.

Specifically, they do not meet

elements two and three above.

At the district court hearing,

the government-employed lawyer could not (or at least did not)
testify that he was acting as a lawyer or providing an opinion
of

law

emails.

or

legal

services

See App. 118.

state the same.

to

Appellants

with

respect

to

the

The lawyer's own declaration fails to

See id. at 83-84.

Appellants provided no other

affidavits, statements, or witnesses on this point.
Appellants argue they need not do so.

They posit that

it is sufficient that the government-employed lawyer generally
stated, "one of my primary roles is providing the [government
official] with advice" regarding certain issues.

See App. 110.

In so arguing, they rely heavily on In re Lindsey, which stated,
We have little doubt that at least one of Lindsey's
conversations
subject
to
grand
jury
questioning
"concerned the seeking of legal advice" and was
between President Clinton and Lindsey or between
others in the White House and Lindsey while Lindsey
was "acting in his professional capacity" as an
attorney.
Before the grand jury, Lindsey spoke of
many instances when legal advice would clearly have
been appropriate, . . . and he specifically affirmed
that there were times when White House staff members
came to him in his role as a member of the White House
Counsel's Office . . . .
Furthermore, there were
times when Lindsey only invoked executive privilege,
. . . at least implying that he invoked attorneyclient privilege only when he thought it appropriate
to do so. The issue whether the government attorneyclient
privilege
could
be
invoked
in
these
circumstances is therefore ripe for decision.

5

158

F.3d

1263,

(emphasis

in

1271

(D.C.

Cir.
But

original).

1998)

(citations

even

Lindsey

omitted)

recognizes,

"consultation with one admitted to the bar but not in that other
person's

role

proponent

of

as

lawyer

the

is

not

privilege

to

protected"

"present

and

the

requires

underlying

the

facts

demonstrating the existence of the privilege in order to carry
its burden."
Appellants

Id. at 1270 (internal quotation marks omitted).

utterly

failed

to

present

any

specific

underlying

facts to establish the privilege and meet their burden.
record

contains

between
lawyer

the

evidence

government

that

concerned

of

not

official
the

even
and

seeking

a

single

the

of

The

conversation

government-employed

legal

advice.

Thus,

Lindsey is unavailing.
B.
Having decided that Appellants failed to meet their
burden as to the two emails, we must now address whether we can
review

the

district

court's

broad

ruling

that

the

attorney-

client privilege does not exist between a government official
and a government-employed lawyer in the context of a criminal
investigation.
review

it

at

We

conclude

that

this

juncture

would

the

issue

be

to

is

render

moot,
an

and

to

advisory

opinion.
Having

decided

that

the

two

emails

--

the

only

concrete evidence in this record -- do not give rise to the
6

privilege, there is no remaining justiciable dispute before us.
Indeed, review of the aforementioned broad ruling "could not
possibly have any practical effect on the outcome of the matter"
concerning the two emails, and therefore, the "dispute is moot
[because] the parties lack a legally cognizable interest in the
outcome."

Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d

150, 161 (4th Cir. 2010); see also Reynolds v. Am. Nat'l Red
Cross, 701 F.3d 143, 156 (4th Cir. 2012).

In such a situation,

"[t]he customary practice . . . is to vacate the moot aspects of
the lower court's judgment."

Norfolk S. Ry., 608 F.3d at 161.

Furthermore, if we were to decide this moot issue, we
would be issuing an impermissible advisory opinion.

Norfolk S.

Ry., 608 F.3d at 161 ("'To decide a moot issue is to issue an
advisory opinion.'" (quoting Friends of Everglades v. S. Fla.
Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir. 2009))); see
also Flast v. Cohen, 392 U.S. 83, 96 (1968) ("[T]he oldest and
most consistent thread in the federal law of justiciability is
that

the

federal

courts

will

not

give

advisory

opinions."

(internal quotation marks omitted)); Shenandoah Valley Network
v. Capka, 669 F.3d 194, 202 (4th Cir. 2012) ("[A] dispute is
lacking here -- and because we cannot issue an advisory opinion --
we have no authority to adjudicate this suit.").
Considering
Appellants

have

this

proffered

authority,
only
7

and

conclusory

the
and

fact

that

hypothetical

assertions

to

support

their

claim

that

the

attorney-client

privilege applies to the grand jury investigation as a whole, we
decline to assess their blanket assertion of the privilege.

We

note, however, that should the record be more fully developed
through the course of the grand jury investigation such that a
concrete

dispute

arises

as

to

particular

communications,

justiciable claims may yet lie.
III.
For

the

foregoing

reasons,

we

affirm

the

district

court's ruling that the two emails in question are not protected
by

the

court's

attorney-client
broad

ruling

privilege,
regarding

and
the

we

vacate

scope

of

as
the

moot

the

privilege

between a government official and a government-employed lawyer
in the context of a criminal investigation.
AFFIRMED IN PART
AND VACATED IN PART

8