Friday, March 31, 2006
Lord Conrad Black lost his fight to keep a set of documents from being subpoenaed by federal prosecutors, and the decision provides a lesson that great care must be taken with such materials if you don't want the government to get its hands on them. Before his indictment on fraud and RICO charges related to allegations of looting Hollinger International, the media company he controlled while serving as chairman and CEO, the SEC issued a subpoena for documents for the records of Ravelston Corp., Black's holding company in Toronto. After receiving the subpoena, a surveillance camera caught Black taking thirteen boxes of documents from the company's offices, and a Canadian court ordered that they be returned. The SEC has been unsuccessful in enforcing its subpoena for the documents in Canada, but federal prosecutors had more luck when they learned that a copy of the documents were sent to one of Black's law firms in the United States. Quicker than you can say "subpoena duces tecum" -- and be careful of the pronunciation -- a trial subpoena issued for the records, which are related to an obstruction of justice count in the Black indictment. A Chicago Tribune story (here) recounts a hearing before U.S. District Judge Amy St. Eve in which she denied the defense motion to quash the subpoena.
While law firm records are usually protected by the attorney-client privilege, and possibly the work product doctrine, documents supplied by a client do not gain any greater protection just by being in the lawyer's files. Moreover, corporate records are not subject to a Fifth Amendment claim, so once the Ravelston documents came within the jurisdiction of the district court they were subject to being produced pursuant to a valid subpoena. If the documents are incriminating, and Black's attempt to remove them indicates that they may be, then providing them to U.S. counsel may have been a strategic mistake. (ph)