United States District Court, D. Massachusetts
SUPPLEMENTAL MEMORANDUM AND ORDER ON APPLICABILITY OF CRIME-FRAUD EXCEPTION TO ATTORNEY-CLIENT PRIVILEGE AND DIRECTING COMPLIANCE WITH SUBPOENAS
F. Dennis Saylor IV United States District Judge
On October 23, 2012, Defendant David Gorski was indicted for one count of conspiracy to defraud the United States and four counts of wire fraud, in violation of 18 U.S.C. §§ 371 and 1343. Among other things, the government alleges that Gorski used the services of the law firm Mintz Levin Cohn Ferris Glovsky & Popeo, P.C. to create fraudulently backdated documents as part of a scheme to obtain government contracts. Those documents purport to show that a company Gorski controlled, Legion Construction, Inc., had undergone a corporate restructuring on February 1, 2010. According to the government, Gorski intended to defraud the Small Business Administration into believing that Legion was a service-disabled veteran-owned small business (“SDVOSB”) that was qualified to bid on certain government contracts within the meaning of new regulations that went into effect on February 8, 2010. According to the government, the restructuring did not actually occur until March 2010.
The government has issued subpoenas under Fed. R. Crim. P. 17(c) to Legion and Mintz Levin that command the production of various documents. Mintz Levin and Legion withheld production of certain documents on the ground that they constituted privileged attorney-client communications. On August 7, 2014, the Court granted the government’s motion for an in camera examination under United States v. Zolin, 494 U.S. 554 (1989), to determine whether the crime-fraud exception to the attorney-client privilege applied. On August 11, Mintz Levin submitted 2, 721 pages of documents for review, as well as a disc containing copies of three voicemail messages. Legion also submitted a large amount of unnumbered documents for review. The Court reviewed the relevant documents in camera and held an ex parte hearing. After that review, and after reconsideration of an earlier order, the Court eventually held that certain documents were subject to the crime-fraud exception and therefore should be produced. The Court further ruled that certain documents representing communications between Gorski and his personal attorney, Elizabeth Schwartz, Esq., of the law firm Malofsky & Schwartz in Worcester, were not subject to the exception, and therefore privileged.
Gorski and Legion appealed to the United States Court of Appeals for the First Circuit, which affirmed the Court’s order on December 9, 2015. The government, however, cross-appealed the finding that the Schwartz documents were not subject to the crime-fraud exception. As to that portion of the Court’s order, the First Circuit reversed, and remanded the matter for further proceedings.
The Court has conducted a further review of the Elizabeth Schwartz records in accordance with the opinion of the First Circuit. After review, the Court finds that the crime-fraud exception applies to the following documents:
1. e-mail dated November 19, 2009 (11:05 a.m.) from David Gorski to Elizabeth Schwartz;
2. e-mail dated February 16, 2010 (7:19 a.m.) from David Gorski to Elizabeth Schwartz, with attachments;
3. e-mail dated February 16, 2010 (7:19 a.m.) from David Gorski to Elizabeth Schwartz, with attachments and with tracking information;
4. Document entitled “Legion: Executive Employment Agreement Comments 2/21/10”;
5. e-mail dated February 23, 2010 (10:45 p.m.) from David Gorski to Elizabeth Schwartz, with attachment;
6. e-mail dated March 1, 2010 (1:38 p.m.) from David Gorski to Elizabeth Schwartz, with attachments;
7. e-mails dated March 1-3, 2010, including the following:
March 3, 2010 (1:39 p.m.) from David Gorski to Elizabeth Schwartz;
March 3, 2010 (12:21 p.m.) from Elizabeth Schwartz to ...