In re 2015-2016 Jefferson County Grand Jury

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This case arose from a grand jury investigation of petitioner M.W. and his company, I.I. The State suspected that I.I. was manufacturing and distributing a cigarette product illegally sprayed with synthetic cannabinoids. As part of the grand jury investigation, the State issued a subpoena duces tecum to I.I’s attorney Amy Brimah, ordering her to produce all materials related to any representation by her of I.I. and M.W. The State also requested a hearing, outside the presence of the grand jury and before a judge. Brimah and M.W. moved to quash the subpoena, arguing that the materials were protected by the attorney–client privilege. The State asserted that the crime–fraud exception to the attorney–client privilege applied. The district court denied Brimah’s and M.W.’s motions, declining to review the documents individually, and ordered Brimah to produce the requested materials. Brimah and M.W. petitioned the Supreme Court for review. The Supreme Court held that a two-step process applies when a party seeks disclosure of attorney–client-privileged documents under the crime–fraud exception: (1) before a court may review the privileged documents in camera, it must “require a showing of a factual basis adequate to support a good faith belief by a reasonable person that wrongful conduct sufficient to invoke the crime or fraud exception to the attorney–client privilege has occurred;” and (2) the court may strip a communication of privilege only upon a showing of probable cause to believe that the client was committing, or attempting to commit, a crime or fraud and the communication was made in furtherance of the putative crime or fraud. Because the State failed to make such a showing here, the district court abused its discretion in stripping the documents of privilege. Brimah and M.W. also argued the district court should have required the State to disclose the applications and authorizations for the intercepts on which it premised its subpoena under Colorado’s wiretap statute, specifically section 16-15-102(9), C.R.S. (2017). On the facts of this case the Supreme Court agreed. The district court was reversed on this point too. The matter was remanded for further proceedings. View "In re 2015-2016 Jefferson County Grand Jury" on Justia Law