In In re Grand Jury Subpoena v. United States, 870 F.3d 312, (4th Cir. 2017), a divided panel of the Fourth Circuit applied an expansive view of opinion work product where an attorney was compelled to testify before a grand jury.  In this case, the government discovered that documents used by defendant in a criminal trial were forged.  The government subpoenaed defense counsel to testify regarding three questions:  “(1) Who gave you the fraudulent documents?  (2) How did they give them to you, specifically?  (3) What did [your client] tell you?”  The appellate court held that the third question, which requested the lawyer’s recollection of an interview, sought protected opinion work product.  The court explained that a lawyer’s recollection of a witness interview, whether drawn from memory or from written notes, constitutes opinion work product.  “[I]mperfect recitations from memory of what a witness said would inevitably reveal what the attorney deemed important enough to remember.  Accordingly, we draw a line between asking an attorney to divulge facts . . . [and] asking an attorney to recall generally what was said in an interview.”

The federal district court that ordered Paul Manafort’s attorney to testify before a grand jury applied a narrower standard for opinion work product than the standard applied by the 4th Circuit.  In In re Grand Jury Investigation, Misc. Action No. 17-2336 (BAH) (D.D.C. Oct. 2, 2017), the court held that the crime-fraud exception applied to the limited questions that the Special Counsel’s Office (SCO) intended to ask Manafort’s attorney.  The attorney had submitted two letters on Manafort’s behalf to the Foreign Agent Registration Act’s (FARA) Registration Unit of the DOJ’s National Security Division.  The SCO sought eight categories of information: (1-2) Who were the sources of certain factual representations and documents?  (3)  Did Manafort or others approve the letters before they were submitted?  (4) What did the source(s) say to the attorney regarding specific statements in the letters?  (5) When and how did the attorney receive communications from her clients?  (6) Did anyone question or correct statements in the letters?  (7) Did the attorney memorialize the conversations?  (8)  Whether the attorney was careful with submitting the letters to the DOJ and whether it was the attorney’s practice to review submissions with her clients before the attorney did so?  One issue addressed by the court was whether the information sought was opinion work product, for which the SCO had not made a sufficient showing of extraordinary need to overcome the protection, or fact work product, which would be discoverable as the SCO had made a sufficient showing to overcome fact work product protection.  Relying in part on the 4th Circuit decision discussed above, Manafort argued the information sought was opinion work product because the questions would elicit testimony regarding counsel’s recollection of communications with her client, including her mental impressions of those statements.  The court disagreed, finding that the D.C. Circuit had rejected “a virtually omnivorous view” of opinion work product and cautioning that not every item which may reveal some inkling of a lawyer’s mental impressions is opinion work product.  The court found that the dissenting opinion in the Fourth Circuit matter was more persuasive than the majority opinion because there are myriad reasons why an attorney might recall a conversation with a client, including reasons unrelated to the lawyer’s mental impressions about the case.  The appellate court held that the first six questions regarding the attorney’s present memory of a client’s statement sought only fact work product because they at most would reveal “some inkling” of her mental impressions.  However, the appellate court held that the seventh question sought opinion work product, because knowing whether the attorney considered the statements significant enough to memorialize would reveal her thought process.