In re 2018 Grand Jury of Dallas County v. John Doe ( 2020 )

IN THE SUPREME COURT OF IOWA
No. 18–1534
Filed February 14, 2020
IN RE 2018 GRAND JURY OF DALLAS COUNTY
JOHN DOE,
Appellant.
Appeal from the Iowa District Court for Dallas County, Dustria
Relph, Judge.
On interlocutory appeal, John Doe challenges several district court
rulings in a grand jury proceeding regarding the ability of the State to
subpoena a criminal defense expert and whether such contact merits
recusal, the authority of the district court to quash a grand jury
proceeding, and when fair-cross-section challenges to the grand jury panel
must be raised. AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED WITH DIRECTIONS.
Alfredo Parrish and Tammy Westhoff Gentry of Parrish Kruidenier
Dunn Boles Gribble Gentry Brown & Bergmann, L.L.P., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Zachary Miller and Denise
Timmins, Assistant Attorneys General, and Matthew Schultz, County
Attorney, for appellee.
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APPEL, Justice.
In this case, a prosecutor contacted an expert witness retained by a
defendant facing the prospect of criminal charges, asking the expert her
opinions about the matter. The expert declined to confirm whether she
had been retained or to otherwise substantively respond, despite the
prosecution advising her that she would be subpoenaed to appear before
a grand jury investigating the potential crime.
The defendant claims that the State may not lawfully subpoena a
retained expert; that the prosecution’s contact with the expert was
improper and requires disqualification of the State’s counsel; and that as
a result of the improper actions of the State, the grand jury proceeding
should be quashed. Additionally, the defendant questions the application
of State v. Plain challenges to a grand jury proceeding. See 898 N.W.2d
801 (Iowa 2017).
For the reasons expressed below, we conclude that the State cannot
subpoena an expert retained by the defense to testify before the grand jury
regarding her opinions on the criminal matter being investigated. While
we conclude that the ex parte contact was improper, we do not believe it
is a basis to disqualify counsel. Finally, although we afford the defendant
with some relief, we find no basis to quash the grand jury proceeding. We
also address procedural matters regarding the proper development of
claims under Plain as they relate to grand jury proceedings.
I. Factual and Procedural Background.
A. Initial Criminal Proceedings. John Doe is the father of S.C., a
child. In November of 2017, law enforcement received information from
the Iowa Department of Human Services that S.C. had possibly been
physically abused. A detective investigated the matter by going to S.C.’s
daycare center. There, the detective saw multiple bruises on S.C.’s back.
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The detective took photographs of the child’s back and interviewed Doe
about the bruises. Following the interview, a criminal complaint was filed
against Doe alleging child endangerment causing bodily injury, which is a
class “D” felony.
Shortly after the complaint was filed, a county prosecutor was
specially assigned to the case. Doe retained legal counsel, pled not guilty,
waived speedy trial, and filed a motion for discovery. The district court
granted the discovery motion and ordered reciprocal discovery.
B. Plea Discussions Between the Parties. The State and Doe
entered plea discussions. A fighting issue was whether the State could
prove its case of physical abuse based on photographs. Doe argued that
the photos indicated a skin condition, while the State took the position
that the bruising was consistent with physical abuse. While the parties
were engaged in plea discussions, the State continued its investigation by
gathering medical records pursuant to a subpoena duces tecum.
The special prosecutor obtained assistance in the matter from
Assistant Attorney General Denise Timmins. In the course of plea
discussions, Doe’s attorney, Alfredo Parrish, disclosed that Dr. Linda
Railsback had been retained by the defense in connection with the case.
C. Legal Issues Surrounding Decision to Convene a Grand Jury.
1. State’s communications with Doe’s retained expert. Following
Parrish’s disclosure regarding Dr. Railsback, on August 29, 2018,
Timmins contacted Railsback by telephone without notice to or permission
from Doe’s counsel. Timmins asked Railsback if she had been working on
the case and further asked Railsback whether she had come to an ultimate
opinion about S.C.’s injuries. Railsback declined to discuss the matter
with Timmins. Despite Timmins informing Railsback that she would be
subpoenaed to appear before the grand jury should she not answer
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Timmins’s questions, Railsback continued to decline to discuss the matter
with Timmins. Two days later, Railsback was served with a subpoena.
Parrish learned of the conversation and subpoena of Railsback and
further discovered that other witnesses had been subpoenaed to appear
before the grand jury who were also John Doe’s witnesses in a related
child-in-need-of-assistance case.
2. Hearing on defense motions before the district court. In early
September, Doe filed motions with the district court to quash the
subpoena of Dr. Railsback and to disqualify attorney Timmins from the
proceeding due to her ex parte contact with Railsback. Doe also sought to
either quash the grand jury proceedings in their entirety or continue the
proceedings to explore a challenge under Plain, 898 N.W.2d 801.
The district court held a hearing on the motions. Associates of
Parrish attended the hearing and advanced arguments on behalf of Doe.
According to Doe, the State was using the grand jury proceedings primarily
as a discovery tactic. Doe argued that when a grand jury is convened, the
State can only call witnesses who the prosecutor believes will present the
best information for the State. Doe cited article I, section 11 of the Iowa
Constitution, which generally provides for presentment or indictment by a
grand jury. Because the State was using the grand jury for an improper
purpose, Doe asserted that the grand jury proceeding should be quashed.
Alternatively, Doe sought a continuance to ensure a fair-cross-
section in the grand jury venire. Doe argued that the Plain decision
extends to grand jury composition under article I, sections 10 and 11 of
the Iowa Constitution and that such a challenge should be mounted before
the grand jury is sworn under Iowa Rule of Criminal Procedure 2.3(2).
Next, Doe addressed the motion to quash the subpoena served on
Railsback. Doe argued that the subpoena of a retained expert violated the
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work-product protection, could go into attorney–client privilege, and
subverted the grand jury process. Further, Doe asserted the information
regarding Railsback was provided as part of a confidential plea-bargaining
process. Doe argued it would delve too far into the defendant’s own
investigation of their defense to allow Railsback’s testimony before the
grand jury. Finally, Doe urged that the district court disqualify Timmins
and the attorney general’s office from further participation in the case
because of its improper use of the grand jury as a discovery device.
On behalf of the State, Timmins made a professional statement. She
recounted discussions with Doe’s counsel regarding the grand jury.
Timmins declared that counsel for Doe had told her numerous times that
Railsback “is going to say that the child has a skin condition.” Timmins
stated she called Railsback and asked whether her understanding of
Railsback’s opinion was correct. After Railsback declined to provide any
information, Timmins advised Railsback that she would receive a
subpoena. Timmins denied, however, that she threatened Railsback in
any way. Timmins declared the State was having a difficult time deciding
what to do with the case and decided to empanel a grand jury and let it
decide whether to proceed with criminal charges.
Assistant Attorney General Zachary Miller then presented to the
district court the outline of the State’s arguments. Through Miller, the
State advised the court that they were not interested in unauthorized
discovery but instead wanted to present the grand jury with all the
available evidence. Although the rules do not require the State to present
any of the defendant’s evidence, they asserted that caselaw arguably does
impose such a requirement. In any event, the State argued that its desire
to present defendant’s potentially exculpatory evidence is sound policy.
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On the issue of staying selection of the grand jury pending
development of a Plain challenge, the State noted that Doe had not lodged
a Plain challenge but merely requested a continuance until the information
to lodge a Plain challenge could be received from the court and evaluated.
On that basis, the State contends, the district court’s deferral of
consideration of the merits pending later development of the record was
proper.
Turning to the issue of the subpoena to Railsback, the State asserted
that even if there was some privileged information, the witness could assert
privilege before the grand jury. The State claimed it was not engaged in a
fishing expedition to learn about the defendant’s case but only sought to
present the grand jury with a full array of evidence. Further, the State
noted that the parties had agreed to reciprocal discovery, and as a result,
there would be no harm in presenting evidence from Railsback to the grand
jury.
On the issue of disqualification, the State maintained that Timmins
did not cross any ethical line. According to the State, Timmins was simply
trying to prepare for the grand jury and was attempting to bring pertinent
information before it to allow the grand jury to make a decision.
Madison County Attorney Matthew Schultz also appeared for the
State. Schultz advised the court that the State would ask the grand jury
to use the beyond-a-reasonable-doubt standard in lieu of the more typical
probable-cause standard when considering whether to bring an
indictment.
After the parties had presented their positions, the attorneys
explored exactly what Doe’s primary counsel, Parrish, had told the State
about Railsback’s potential testimony. Schultz made a professional
statement that Parrish had stated that Railsback had reviewed the
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photographs of S.C. and had concluded that they reflected a skin
condition. Associates of Parrish who were arguing the motion stated they
were not familiar with the discussions but asserted the discussions were
confidential. Timmins responded that there was nothing about the
conversations suggesting the information revealed by Parrish could not be
used by the State. Doe’s attorneys asserted that they themselves
“specifically have not said to [Dr. Railsback] that she was going to be a
trial witness. She was retained to help the defense in understanding the
case.”
3. Ruling of the district court. Immediately following the argument,
the district court initially denied Doe’s motion to quash the grand jury,
reasoning that the court lacked authority to do so. The district court also
denied a continuance of the proceeding to allow a Plain challenge to the
make-up of the grand jury, reasoning that such a challenge could be
considered after the grand jury was sworn and if an indictment was
returned.
The district court took the question of the subpoena of Dr. Railsback
under advisement but later denied the motion in a written ruling. The
district court concluded that although Railsback should not be allowed to
testify regarding trial strategy, she could testify about opinions that Doe’s
counsel had disclosed to the State under a waiver theory.
Following the rulings, a grand jury was selected and sworn. On
September 11, however, this court granted Doe’s application for
interlocutory appeal and stayed the grand jury proceedings.
II. Standard of Review.
Ordinarily, we review a district court decision with respect to
quashing of a subpoena for abuse of discretion. Morris v. Morris, 383
N.W.2d 527, 529 (Iowa 1986) (“The trial court sustained the motion to
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quash, a ruling which defendants challenge. A trial court has wide
discretion in such a ruling. We find no abuse.” (Citation omitted.)).
Similarly, this court reviews a district court’s decision not to disqualify a
prosecutor for abuse of discretion. State v. Iowa Dist. Ct. for Dubuque Cty.,
870 N.W.2d 849, 850, 853 (Iowa 2015). The district court’s interpretation
of statutory language is reviewed for errors of law. State v. Dahl, 874
N.W.2d 348, 351 (Iowa 2016). The standard of review for district court
determinations regarding authority and jurisdiction of a district court are
also reviewed for correction of errors at law. State v. Clark, 608 N.W.2d 5,
7 (Iowa 2000) (en banc).
III. Discussion.
A. Validity of State’s Subpoena of Expert Retained by Defense
in a Criminal Proceeding to Appear and Testify Before a Grand Jury.
1. Introduction. The first issue in this appeal is whether the State
may subpoena an expert witness retained by the defense in preparation
for criminal prosecution to testify before a grand jury proceeding. The
parties have not cited, nor have we found, authoritative Iowa precedent on
the issue. An overview of the nature of the grand jury will provide context
for deciding the issue.
In State v. Iowa District Court for Johnson County, 568 N.W.2d 505
(Iowa 1997), we discussed the nature of grand juries under Iowa law. In
doing so, we quoted federal precedent:
In fact the whole theory of [the grand jury’s] function is that it
belongs to no branch of the institutional government, serving
as a kind of buffer or referee between the government and the
people. Although the grand jury normally operates, of course,
in the courthouse and under judicial auspices, its
institutional relationship with the judicial branch has
traditionally been, so to speak, at arm’s length. Judges’ direct
involvement in the functioning of the grand jury has generally
been confined to the constitutive one of calling the grand
jurors together and administering their oaths of office.
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Id. at 508 (alteration in original) (quoting United States v. Williams, 504
U.S. 36, 47, 112 S. Ct. 1735, 1742 (1992)).
We have also cited with approval the discussion of the federal grand
jury in United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613 (1974). See
State v. Hall, 235 N.W.2d 702, 712–13 (Iowa 1975) (en banc). In Calandra,
the United States Supreme Court stated,
Traditionally the grand jury has been accorded wide
latitude to inquire into violations of criminal law. No judge
presides to monitor its proceedings. It deliberates in secret
and may determine alone the course of its inquiry. The grand
jury may compel the production of evidence or the testimony
of witnesses as it considers appropriate, and its operation
generally is unrestrained by the technical procedural and
evidentiary rules governing the conduct of criminal trials. “It
is a grand inquest, a body with powers of investigation and
inquisition, the scope of whose inquiries is not to be limited
narrowly by questions of propriety or forecasts of the probable
result of the investigation, or by doubts whether any
particular individual will be found properly subject to an
accusation of crime.”
414 U.S. at 343, 94 S. Ct. at 617 (quoting Blair v. United States, 250 U.S.
273, 282, 39 S. Ct. 468, 471 (1919)).
Further, the Calandra Court noted,
The grand jury’s sources of information are widely
drawn, and the validity of an indictment is not affected by the
character of the evidence considered. Thus, an indictment
valid on its face is not subject to challenge on the ground that
the grand jury acted on the basis of inadequate or
incompetent evidence.
Id. at 344–45, 97 S. Ct. at 618.
Yet, the cases make clear that the subpoena power of the grand jury
is not unlimited. Id. at 346, 94 S. Ct. at 619. Grand jury subpoenas
cannot violate a valid privilege, whether established by constitution,
statute, or common law. Id. There is also some authority for the
proposition that grand jury subpoenas may not be unreasonable or
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oppressive. See In re Grand Jury Subpoena, 626 F. Supp. 1057, 1061
(D.P.R. 1986) (finding a grand jury subpoena requiring production of “any
and all records” of a party was overbroad), aff’d in part, rev’d in part sub
nom. In re Grand Jury Proceedings, 814 F.2d 61, 73 (1st Cir. 1987); State
v. Hill, 37 N.E.3d 822, 827 (Ohio Ct. App. 2015) (finding that the district
court has the power to review grand jury subpoena for fundamental
unfairness), aff’d sub nom. In re Cases Held for the Decision in State v.
Thomas, 78 N.E.3d 830 (Ohio 2016) (mem.).
Based on these authorities, the question is whether this court
should quash the grand jury subpoena of Doe’s retained expert.
2. Positions of the parties. Doe advances several arguments to
support quashing the grand jury subpoena served on Dr. Railsback. First,
Doe asserts the only information she has is privileged and shielded by
work-product protection. Doe cites In re Grand Jury Proceedings, 473 F.2d
840, 846–47 (8th Cir. 1973), for the proposition that statements made by
witnesses to an attorney have been consistently held to be work product.
According to Doe, any effort to obtain such information in the manner and
circumstances of this case is “unheard of.”
Second, Doe asserts that discovery of an expert witness not expected
to testify and specially retained in anticipation of litigation may only be
obtained upon a showing of exceptional circumstances under Iowa Rule of
Civil Procedure 1.508(2). Doe impliedly argues that the Iowa Rules of Civil
Procedure apply in a case involving a grand jury subpoena.
Third, Doe claims the decision to subpoena Railsback without first
informing the district court or opposing counsel was contrary to the Iowa
Rules of Evidence. Doe argues that rules on privileges apply “to all stages
of a case or proceeding.” Iowa R. of Evid. 5.1101(b). Further, rule 5.104
provides that the court must decide any preliminary question about
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whether a privilege exists. Under the circumstances, Doe asserts that the
State was required to alert the district court in advance that it intended to
call Railsback. In support of this assertion, Doe cites State v. Wong, 40
P.3d 914 (Haw. 2002). There, the Hawai‘i Supreme Court held that the
prosecutor engaged in misconduct by presenting the testimony of the
defendant’s tax attorney to a grand jury without first seeking judicial
review on the attorney–client privilege. Id. at 922–23.
Fourth, Doe argues that the State learned of Railsback’s identity
through plea negotiations and that such disclosures are confidential. Doe
argues that lawyers have a duty not to disclose those communications
under Iowa Rule of Professional Conduct 32:1.6. Further, Doe points out
that statements made in plea negotiations are inadmissible. See Iowa R.
Crim. P. 2.10(5). Doe asserts that allowing use of information about an
expert witness obtained in plea negotiations bargaining will have a chilling
effect on plea bargaining. Finally, Doe asserts that if the State desired to
present exculpatory evidence by obtaining Railsback’s testimony, the State
would have called Doe’s counsel before serving a subpoena on Railsback.
The State contends that it served the subpoena on Railsback to
present the grand jury with exculpatory evidence to assist the grand jury
in its deliberations. In support of this argument, the State cites Hall, 235
N.W.2d 702. In Hall, we declared that a prosecutor’s duty in a grand jury
proceeding is “to fairly and dispassionately present not only that evidence
which tends to prove guilt but also that which is exculpatory in nature.”
Id. at 712. The State further cites the ABA’s Criminal Justice Standards
for the Prosecution Function (ABA Standards) 3-4.6(e), which provides that
a prosecutor with personal knowledge of evidence which “directly negates
the guilt of a subject of the investigation” should present or otherwise
disclose the evidence to the grand jury. Criminal Justice Standards for the
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Prosecution Function, Am. Bar Ass’n (last updated 4th ed. 2017),
https://www.americanbar.org/groups/criminal_justice/standards/Prose
cutionFunctionFourthEdition/ [https://perma.cc/ZMJ9-GX38]. The
State points out that the United States Department of Justice in its Justice
Manual 9–11.233 adheres to essentially the same position. Justice
Manual, U.S. Dep’t of Justice (last visited Feb. 5, 2020), https://
www.justice.gov/jm/jm-9-11000-grand-jury [https://perma.cc/6TF7-
CA5R].
The notion that a prosecutor should disclose exculpatory
information is consistent with Iowa Rule of Criminal Procedure 2.3(4)(g),
which allows a grand jury to “hear evidence for the defendant.” While Doe
recognizes that under Williams, 504 U.S. at 55, 112 S. Ct. at 1746, there
may be no duty to disclose exculpatory evidence, that does not mean it is
not prudent for the prosecution to do so.
In response to Doe’s argument that any potential testimony by
Railsback would invade work-product protection, the State responds that
the Iowa Rules of Civil Procedure do not apply in criminal matters but are
merely instructive. See State v. Russell, 897 N.W.2d 717, 725 (Iowa 2017)
(stating that “[w]hile our rules of civil procedure do not apply to criminal
matters, they can still be instructive”). Thus, the State rejects the claim
that it seeks to invade the thoughts of a retained but nontestifying expert
in violation of rule 1.508(2) because the rule is not applicable. The State
notes that the discovery rules in the Iowa Rules of Criminal Procedure do
have expert discovery provisions, though they do not apply until charges
are filed. See Iowa R. Crim. P. 2.14(2)(b)(1)–(2), .14(3)(b).
The State further claims that Doe waived any privilege when Parrish
told the prosecutors the general content of Dr. Railsback’s opinion. The
State offers several authorities supporting the contention that
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communicating privileged work product to an adversary waives the
privilege. See, e.g., Doe No. 1 v. United States, 749 F.3d 999, 1008 (11th
Cir. 2014) (“Even if it shared the common goal of reaching a quick
settlement, the United States was undoubtedly adverse to Epstein during
its investigation of him for federal offenses, and the intervenors’ disclosure
of their work product waived any claim of privilege.”); Pittman v. Frazer,
129 F.3d 983, 988 (8th Cir. 1997) (“We have stated that disclosure to an
adversary waives work product protection as to items actually disclosed.”).
Responding to Doe’s argument that Doe communicated information
regarding Railsback’s opinion during plea negotiation and that such
information may not be used by the prosecution, the State argues that
adoption of this proposition would allow defendants to “inoculate
themselves from harmful evidence” by disclosing it in plea negotiations.
According to the State, the plea discussions themselves cannot be
admitted into evidence. See Iowa R. Evid. 5.410(a)(4).
With respect to Doe’s claimed entitlement to a hearing before the
district court on the privilege issue, the State claims that Doe misreads
Iowa Rule of Evidence 5.104(a) relating to the district court’s authority to
determine privilege claims. The State argues, however, that the notion of
providing notice and a hearing to resolve privilege questions would
undermine the secrecy of grand jury proceedings established in Iowa Rule
of Criminal Procedure 2.3(4)(d) (“Every member of the grand jury, and its
clerks, bailiffs, and court attendants, shall keep secret the proceedings of
that body and the testimony given before it . . . .”).
In any event, the State points out that Doe received a hearing before
the district court when it denied the motion to quash. The State notes
that the district court ordered the State not to seek Doe’s trial strategy
when examining Dr. Railsback. When appearing before the grand jury,
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the State contends, Railsback can claim privilege when testifying and the
district court will then decide the claim.
3. Discussion. Doe asserts that both the work-product protection
and attorney–client privilege require that the subpoena be quashed in this
case. At the outset, as a general matter, we find it clear that the privileges
themselves do apply in grand jury proceedings. It is, perhaps, not entirely
clear that grand jury deliberations are a “case or proceeding” under the
Iowa Rule of Criminal Procedure 5.1101(b). As a result, there may be some
doubt as to whether the protection of privileges afforded under the rule
applies. But even if the privilege protection in rule 5.1101(b) is not directly
applicable to grand jury proceedings, we would hold that these firmly
established common law doctrines of work-product protection and
attorney–client privilege apply to grand jury proceedings. The State does
not argue to the contrary.
We now turn briefly to the scope of the privileges. Attorney–client
privilege is vaguely defined in Iowa Rule of Evidence 5.502(g)(1) as “the
protection that applicable law provides for confidential attorney–client
communications.” But Doe does not clearly articulate how attorney–client
privilege is implicated here.
Iowa Rule of Evidence 5.502(g)(2) defines work-product protection
as “the protection that applicable law provides for tangible material (or its
intangible equivalent) prepared in anticipation of litigation or for trial.”
(Emphasis added.) While Dr. Railsback had not yet prepared tangible
work-product for Doe, the rule would protect an intangible equivalent,
such as the tentative conclusions or observations that Railsback had
shared with Doe’s counsel. To the extent the State claims that Railsback
may have exculpatory information, much if not all of it would be shielded
by work-product protection.
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In addition, we take instruction from the Iowa Rule of Civil
Procedure 1.508(2) related to discovery of expert witnesses. Ordinarily, in
a circumstance like this, a retained nontestifying expert is not subject to
discovery unless the State has demonstrated exceptional circumstances,
a necessary prerequisite showing to permit testimony from the defense’s
retained but nontestifying expert. We do not think a grand jury subpoena
may be used to circumvent this generally applicable rule and the policies
that support it. We therefore conclude that, absent waiver, the district
court should have quashed the grand jury subpoena of Dr. Railsback.
The State contends that if work-product protection attached in this
case that it had certainly been waived by Doe’s counsel. The fighting issue
here is the scope of Iowa Rule of Evidence 5.410(a)(4). This provision
makes inadmissible “[a] statement made during plea discussions with an
attorney for the prosecuting authority if the discussions do not result in a
guilty plea or they resulted in a later-withdrawn guilty plea.” Iowa R. Evid.
5.410(a)(4).
Doe argues that the provision prevents the prosecution from using
information it obtained in the plea-bargaining process to identify witnesses
to subpoena before the grand jury. It amounts, essentially, to a fruit-of-
the-poisonous-tree argument. But the language of the rule is not helpful
to Doe. It only provides that any statement made in the course of a plea
bargain is inadmissible. It is the statements of Parrish to prosecutors that
are thus inadmissible, not Railsback’s opinion. Indeed, this would be
consistent with our caselaw. For example, in Exotica Botanicals, Inc. v.
Terra International, Inc., 612 N.W.2d 801, 809 (Iowa 2000), we found that
work-product protections were not waived through discussion with
opposing counsel. The court stated,
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But to say that [an individual] waived his work product
privilege concerning information that might potentially
absolve [a client] of liability, simply by discussing the general
nature of that information with [an opposing party], would
mean that an attorney could never discuss the positive
aspects of his or her case with opposing counsel for fear that
such discussion would amount to a waiver of the work
product privilege as to all documents supporting that position.
If this were the case, settlement negotiations and
communication between the parties in general would break
down. Such a result would be inconsistent with a
commonsense application of the work product doctrine and
certainly inconsistent with the goal of resolving cases in a
timely manner.
Id.
But that does not mean that information communicated in plea-
bargaining cannot be pursued by the prosecution. For example, in United
States v. Cusack, 827 F.2d 696, 697–98, 697 nn.1–2 (11th Cir. 1987) (per
curiam), the Eleventh Circuit considered a case in which evidence was
seized under a search warrant where probable cause for the warrant was
supplied by defendant’s plea negotiation statements. The governing
language in the rule applied in Cusack, Federal Rule of Criminal Procedure
11(e)(6)(D), uses language similar to Iowa Rule of Evidence 5.410(a)(4).
Compare id. 697 n.3 (quoting Fed. R. Crim. P. 11(e)(6)(D)), with Iowa R.
Evid. 5.410(a)(4). The Cusack court held that the rule did not prohibit
derivative use of statements but only the admission of the statements
themselves. Id. at 697–98; see also United States v. Ware, 890 F.2d 1008,
1012 (8th Cir. 1989) (holding that defendants introduction of a potential
witness to the government during plea discussions was not within the
scope of the rule); United States v. Rutkowski, 814 F.2d 594, 598 (11th Cir.
1987) (per curiam) (finding that reexamination of evidence due to
statements made in plea-bargaining was permissible); United States v.
Fronk, 173 F.R.D. 59, 62 (W.D.N.Y. 1997) (stating that evidence derived
from statements in the plea-bargain process are admissible).
17
Yet, in this case, the fact that evidence derivative of statements may
be admitted does not save the day for the State. Here, the only way the
State can show that Parrish waived the work-product doctrine would be to
use his statement in plea negotiations. Plea discussions themselves are
not admissible. Iowa R. Crim. P. 2.10(5). As a result, the State cannot
use the statement made by Parrish to prosecutors to establish the
necessary foundation for waiver. Thus, Doe is entitled to press their work-
product claim in its entirety.
For the above reason, we conclude that the district court erred in
not quashing the grand jury subpoena of Dr. Railsback.
B. Disqualification Issue.
1. Introduction. Doe seeks the disqualification of counsel because
“she directly contacted defense counsel’s expert and demanded
information about the matter.” The district court overruled the motion.
No constitutional error was presented to or ruled upon by the district
court, and as a result, these claims are not preserved. Our review of a
decision related to disqualification of a prosecutor is for abuse of
discretion. Iowa Dist. Ct. for Dubuque Cty., 870 N.W.2d at 853.
2. Positions of the parties. Doe asserts that under Iowa District Court
for Dubuque County, a prosecutor may be disqualified for engaging in
behavior that amounted to a conflict of interest “or otherwise cause them
to seek results that are unjust or adverse to the public interest.” Id. at
853 (quoting Allan L. Schwartz & Denny R. Veilleux, Annotation,
Disqualification of Prosecuting Attorney in State Criminal Case on Account
of Relationship with Accused, 42 A.L.R. 5th 581, 581 (1996) [hereinafter
Schwartz & Veilleux]). Doe claims the “unjust or adverse to the public
interest” prong is implicated in this case. Doe buttresses the unjust or
adverse to the public interest claim with a citation to the ABA Standard 3-
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4.6(i) requiring a prosecutor to consider the “applicable law and rules of
professional responsibility” before issuing grand jury subpoenas to
opposing parties and witnesses. Criminal Justice Standards for the
Prosecution Function, Am. Bar Ass’n. Combining the Iowa District Court for
Dubuque County case and the ABA Standards, it appears that Doe is
arguing that illegal conduct or violation of the Iowa Rules of Professional
Conduct by a prosecuting attorney may give rise to results that are “unjust
and adverse to the public interest” and require disqualification. Iowa Dist.
Ct. for Dubuque Cty., 870 N.W.2d at 853 (quoting Schwartz & Veilleux, 42
A.L.R. 5th at 581).
To establish illegality, Doe points to Iowa Rule of Civil Procedure
1.508(2) as “instructive.” Although the rule relates to discovery, Doe
argues that it would be meaningless if an attorney were allowed to contact
the opponent’s expert witness directly. As a result, according to Doe, a
no-contact rule prohibiting parties from contacting an opposing expert is
ordinarily enforced. See George M. Cohen, Beyond the No-Contact Rule:
Ex Parte Contact by Lawyers with Nonclients, 87 Tul. L. Rev. 1197, 1209–
10 (2013) [hereinafter Cohen].
Doe specifically cites Erickson v. Newmar Corp., 87 F.3d 298, 301–
02 (9th Cir. 1996). In Erickson, the Ninth Circuit considered a situation
where an attorney had hired a pro se plaintiff’s expert on another case,
thus gaining access to the opposing party’s expert. Id. at 300. The Ninth
Circuit observed that there was a scarcity of caselaw on the topic, “possibly
because the violation seldom happens.” Id. at 302. The Ninth Circuit cited
an ethics treatise and two ethics opinions standing for the proposition that
such conduct was “impliedly prohibited” by the existing rules of civil
procedure and ethics rules. Id. at 301–02 (citing 2 Geoffrey C. Hazard &
W. William Hodes, The Law of Lawyering § 3.4:402 (2d ed. Supp. 1994);
19
ABA Comm’n on Ethics & Prof’l Responsibility, Formal Op. 93–378 (1993);
Or. St. Bar Ass’n, Formal Op. 1992–132 (1992)). The Ninth Circuit
reversed the district court’s judgment in favor of the defendant and
instructed the district court to impose appropriate sanctions and
disciplinary action upon defense counsel. Id. at 304.
The State contends that Iowa District Court for Dubuque County does
not permit such a free-standing basis for disqualification and that Doe
must prove a conflict of interest which either (a) “prejudiced [the
prosecutor] against the accused,” or (b) “cause[d] them to seek results that
are unjust or adverse to the public interest.” 870 N.W.2d at 853 (quoting
Schwartz & Veilleux, 42 A.L.R. 5th at 581). The State does not directly
address, however, the issue of ex parte contact with a retained expert of
an opposing party. In any event, even if the district court could disqualify
the prosecutor on that basis, it properly exercised its discretion in
declining to do so.
3. Discussion. Under Iowa District Court for Dubuque County, a
prosecutor may be disqualified by a district court if “they have a conflict
of interest which might prejudice them against the accused or otherwise
cause them to seek results that are unjust or adverse to the public
interest.” Id. (quoting Schwartz & Veilleux, 42 A.L.R. 5th at 581). Doe
takes the position that this anguage permits disqualification of a
prosecutor solely on a finding that they sought results which are “unjust
or adverse to the public interest.” Id.
When read as a whole, however, it is clear that under Iowa District
Court for Dubuque County, there must first be a prerequisite showing of
alleged conflict of interest, followed by either a showing of prejudice against
the defendant or unjust results. Id. Indeed, to permit disqualification
solely on the basis that the prosecutor sought results which are unjust or
20
contrary to the public interest would make such determination
conditioned on a judge’s subjective interpretation of the meaning of
“unjust” or “adverse to the public interest.” Depending on the specific
allegations, this may also intrude on the prosecutor’s freedom from judicial
oversight when bringing claims. See Iowa Dist. Ct. for Johnson Cty., 568
N.W.2d at 508. Doe has not sufficiently alleged a conflict of interest, thus
disqualification under Iowa District Court for Dubuque County is not
warranted. See 870 N.W.2d at 849.
The State further argued that a showing of prejudice should be
required prior to disqualification based on a prosecutor seeking results
that are unjust and contrary to public policy. Since we have declined to
adopt disqualification on this basis, we also decline to address this issue
further.
In support of his contention, Doe relies on the ABA Standards. In
particular, Doe relies on standard 3-4.6(i), which cautions prosecutors
against issuing “a grand jury subpoena to a criminal defense attorney or
defense team member, or other witness whose testimony reasonably might
be protected by a recognized privilege, without considering the applicable
law and rules of professional responsibility in the jurisdiction.” Criminal
Justice Standards for the Prosecution Function, Am. Bar Ass’n. Violations
of ABA Standards have previously been considered by this court in
disqualification determinations. See Iowa Dist. Ct. for Dubuque County,
870 N.W.2d at 856 (“Although [the ABA Standards] are ‘not intended to be
used as criteria for . . . judicial evaluation,’ the standards still ‘may or may
not be relevant in such judicial evaluation, depending upon all the
circumstances.’ ” (quoting ABA Standards for Criminal Justice:
Prosecution Function and Defense Function 3-1.1, at 3 (3d ed. 1993));
Blanton v. Barrick, 258 N.W.2d 306, 311 (Iowa 1977) (holding that,
21
although violation of the statute governing disqualification of county
attorneys may also violate the ABA Standards, it did not warrant complete
abrogation of judicial immunity).
Doe further suggests that Timmins violated a no-contact rule which
would prohibit counsel from engaging in ex parte communications with an
expert retained by an opposing party. In support, Doe relies on Iowa Rule
of Civil Procedure 1.508(2) and its specific explication concerning
discovery of a nontestifying expert. The purposes of the no-contact rule
include preventing the circumvention of the court’s carefully prescribed
rules concerning discovery of experts and preventing the inadvertent
disclosure of privileged or confidential information. Cohen, 87 Tul. L. Rev.
at 1210–11.
Further the ABA has issued a formal ethics opinion on the subject,
which states,
[Model] Rule 3.4(c) requires a lawyer to conform to the rules
of a tribunal before which a particular matter is pending, and
it is under this Rule that the matter of expert witnesses comes
into particular focus. The rules of procedure of many
tribunals contain specific and exclusive procedures for
obtaining the opinions, and the bases therefor, of the experts
who may testify for the opposing party. The leading rule in
this regard is Fed.R.Civ.P.Rule 26(b)(4)(A), which sets forth a
two-step process that must be followed in order to obtain
discovery of facts and opinions held by an adversary’s expert
who is expected to testify at trial: first, written interrogatories
are to be served; second, if additional discovery is desired,
leave of court must be obtained.
....
The Committee therefore concludes that, although the
Model Rules do not specifically prohibit a lawyer in a civil
matter from making ex parte contact with the opposing party’s
expert witness, such contacts would probably constitute a
violation of Rule 3.4(c) if the matter is pending in federal court
or in a jurisdiction that has adopted an expert-discovery rule
patterned after Federal Rule 26(b)(4)(A). Conversely, if the
matter is not pending in such a jurisdiction, there would be
no violation.
22
ABA Comm’n on Ethics & Prof’l Responsibility, Formal Op. 93–378, at 2–
3. A number of cases have held similarly. See, e.g., Young v. S. Cal.
Transp., Inc., No. 2:08cv247KS-MTP, 2010 WL 916665, at *12 (S.D. Miss.
Mar. 10, 2010) (“[Federal Rule of Civil Procedure 26(b)(4)(B)] makes no
provision for ex parte communication with a party’s expert witness by the
opposing party.”); Carlson v. Monaco Coach Corp., No. CIV-S-05-0181
LKK/GGH, 2006 WL 1716400, at *10 (E.D. Cal. Apr. 20, 2006) (“[T]he
careful scheduling of experts’ disclosures and discovery by the district
court would be for naught if the parties could back door these provisions
with informal contacts of an adversary’s experts.”); Olson v. Snap Prods.,
Inc., 183 F.R.D. 539, 542 (D. Minn. 1998) (“By implication, ex parte
contacts with expert witnesses, in order to discover their opinions, are
prohibited.”).
In examining these authorities, one obvious commonality emerges:
they do not involve grand jury proceedings. There are no current rules
relating to grand jury proceedings. In fact, at least one other jurisdiction
has found that contacting expert witnesses within the context of a criminal
case is permissible. 1
The issue before us is whether the district court abused its
discretion in declining to disqualify Timmins because of her brief phone
call with Dr. Railsback and her subpoena of Railsback to appear before
the grand jury. As a reviewing court, we only consider whether the district
court abused its discretion in declining to disqualify Timmins. As to the
1In Formal Opinion No. 2005-131, the Oregon board of governors adopted a
framework allowing for contacting adverse expert witnesses within the context of a
criminal proceeding. Or. St. Bar Ass’n, Formal Op. 2005–131 (2005). This opinion,
although informative, is distinguishable from the case at hand as it does not make a clear
enough distinction between testifying and nontestifying witnesses for our purpose, is
based in part on Oregon caselaw which has grown around the discovery process, and
deals with ordinary criminal proceedings rather than our present grand jury context.
23
phone call, it may have been a mistake, and even improper, to ask
Railsback to state her opinions ex parte, but it does not arise to such
egregious misconduct in this unclear area of law to allow us to say that
the district court abused its discretion in failing to disqualify Timmins. As
to the issuance of the subpoena, it may have crossed the line, as we have
now drawn it, but it does not amount to the kind of misconduct that
requires, as a matter of law, the disqualification of Timmins.
C. Authority of a District Court to Generally Quash Grand
Juries.
1. Introduction. Doe seeks to generally quash the grand jury. He
does not simply seek to quash a grand jury indictment. See, e.g., State v.
Boucher, 237 Iowa 772, 774, 23 N.W.2d 851, 852 (1946). Nor does Doe
seek to quash a grand jury subpoena pursuant to Iowa Rules of Civil
Procedure 1.1701 and 1.1702. Instead, Doe wants to terminate the grand
jury proceeding in toto.
2. Positions of the Parties. Doe recognizes the unusual posture of
the grand jury in our institutional design. Doe notes that a grand jury “is
not an adjunct of either the court or the prosecutor.” Iowa Dist. Ct. for
Johnson Cty., 568 N.W.2d at 508. Doe notes we have held that a district
court cannot use the grand jury as a sword to coax the county attorney to
bring a charge they would not otherwise pursue. Id. at 509. But, Doe
distinguishes judicial intervention to use the grand jury as a prosecutorial
sword with judicial oversight of the grand jury as a shield against
prosecutorial misconduct. In support, Doe observes that in State v.
Paulsen, 286 N.W.2d 157, 159–61 (Iowa 1979) (en banc), that we
considered but rejected on the merits a due process claim that a
prosecutor “improperly influenced” the grand jury. See also Hall, 235
N.W.2d at 712.
24
Operating from the premise that the judicial branch has authority
to ensure the constitutionality of grand jury proceedings, Doe proceeds to
assert that prosecutors violated Doe’s constitutional rights by using the
grand jury proceeding as a preindictment discovery tool. Doe attacks the
State for using the subpoena power of the grand jury to call Doe, Doe’s
family members, Doe’s coworkers, and Doe’s retained expert as a tactic
that “subverts the purpose of the grand jury proceeding[,]” which is to
determine if there is an adequate basis for bringing a charge. See Williams,
504 U.S. at 51, 112 S. Ct. at 1744 (finding that “the grand jury sits not to
determine guilt or innocence, but to assess whether there is adequate
basis for bringing a criminal charge”). Doe asserts without elaboration
that the State’s claim that it sought to present “a complete picture” to the
grand jury violated article I, sections 9, 10, and 11 of the Iowa
Constitution.
Doe relies heavily here on Wong as instructive. In Wong, the circuit
court found misconduct when prosecutors subpoenaed witnesses for a
grand jury that would likely provide privileged attorney–client testimony,
but did not first seek a court ruling regarding the extent to which those
witnesses could testify. 40 P.3d at 917. The Wong court ultimately
affirmed dismissal of the indictments for prosecutorial misconduct. Id. at
930.
The State vigorously responds. It notes that the Iowa Rules of
Criminal Procedure provide authority to challenge a panel or an individual
grand juror, or to dismiss indictments, but not challenge to the entire
proceeding. See Iowa R. Crim. P. 2.3(2)(c); id. r. 2.11(6)(a)–(b). The State
notes, for example, that in Wong the district court dismissed indictments,
but did not quash a grand jury proceeding in whole.
25
Even if the court had the power to “quash the grand jury,” the State
asserts that this is not the case to do it. While Doe complains about the
State’s subpoenas for defense witnesses, the rules specifically state that
“[t]he grand jury is not bound to hear evidence for the defendant, but may
do so.” Iowa R. Crim. P. 2.3(4)(g). The State further cites ABA Standards
3-4.6(i), suggesting prosecutors may have an ethical obligation to present
evidence from the defendant. Further, the State cites the difficulty in
determining whether evidence is helpful or harmful to the prosecution or
defendant. Finally, the State notes that the grand jury has investigative
purposes which would be defeated by enforcement of a rule that only
inculpatory evidence may be presented. See Paulsen, 286 N.W.2d at 160.
The State claims that it was not engaged in discovery, but was instead
seeking to present the grand jury with evidence to make a judgment about
the case.
Finally, the State notes the procedural posture of this case. In fact,
the district court held a hearing prior to any presentation of testimony
before the grand jury. The situation is thus materially different than in
Wong, where the State was ordered not to present testimony from
attorneys without first seeking a judicial determination but defied the
order and presented the evidence anyway. Wong, 40 P.3d at 925.
3. Discussion. We begin with a brief review of the status of the grand
jury and its relationship to the judicial branch. As a general proposition,
[g]iven the grand jury’s role as an independent body,
however, the district court’s supervisory power is “a very
limited one.” It does not “permit judicial reshaping of the
grand jury institution.” Rather, it may be used only to
“preserve or enhance the traditional functioning” of the grand
jury. For example, a district court does not have the power to
order a prosecutor to present exculpatory evidence to a grand
jury. Such an order would be inappropriate because, rather
than “enhancing the traditional functioning” of a grand jury,
it would “alter the grand jury’s historical role.”
26
Carlson v. United States, 837 F.3d 753, 762 (7th Cir. 2016) (quoting
Williams, 504 U.S. at 50–51, 112 S. Ct. at 1735). If the district court does
not have authority to order that exculpatory evidence be presented, it
seems logical that it may not have authority to order that exculpatory
evidence be excluded.
We further note that the Iowa Rules of Criminal Procedure establish
several potential judicial remedies, but do not authorize quashing of a
grand jury. We do not find that oversight inadvertent. The exercise of
judicial branch powers should generally remain within the established
guardrails. Even if there were constitutional problems or other errors
associated with a grand jury proceeding, the remedy lies not in seeking to
disband the grand jury, a constitutionally established entity, but in
dismissal of the indictment.
D. Timeline for Challenges to Grand Jury Arrays Under Plain.
1. Introduction. The final issue before the court in this case pertains
to when a defendant may make a fair-cross-section Plain challenge within
a grand jury context. See Plain, 898 N.W.2d 801. The parties do not
dispute that Doe is entitled to raise a Plain challenge to the composition of
the grand jury. They battle over whether Doe raised a timely Plain
challenge and whether the district court erred in swearing a grand jury
and deferring resolution of Doe’s Plain challenge.
The relevant rule is Iowa Rule of Criminal Procedure 2.3(2)(a). This
rule provides,
Challenge to array. A defendant held to answer for a public
offense may, before the grand jury is sworn, challenge the
panel or the grand jury, only for the reason that it was not
composed or drawn as prescribed by law. If the challenge be
sustained, the court shall thereupon proceed to take remedial
action to compose a proper grand jury panel or grand jury.
Id.
27
2. Positions of the parties. Doe relies upon the plain language of
Iowa Rule of Criminal Procedure 2.3(2), interpreting the rule to mean that
a Plain challenge must be made prior to the convening of a grand jury.
Doe claims that he needed additional time to gather the necessary
information to support the challenge, hence the motion for continuance.
Doe also states that a balancing of equities between judicial efficiency and
prejudice would necessarily favor him. Finally, Doe asserts that mere
preservation of the issue by the court for a later decision is an inadequate
remedy.
The State counters that Doe did not make a timely Plain challenge,
and instead only sought a continuance to determine if he could make a
Plain challenge. That, according to the State, is not good enough under
Iowa Rule of Criminal Procedure 2.3(2)(a). In any event, the State
maintains that nothing in rule 2.3(2) requires that a Plain challenge be
decided prior to the swearing of a grand jury. While the State notes the
district court is required to take remedial action if a Plain challenge is
founded, that does not require remedial action before the grand jury is
sworn. Indeed, the State points out, there is nothing in the rule that
establishes a timetable for a judicial ruling on the issue.
According to the State, the district court’s handling of the matter
was appropriate for reasons of efficiency. The citizens comprising the
array had arrived at the courthouse, and witnesses were subpoenaed and
scheduled to testify. According to the State, the makeup of the grand jury
should be presumed constitutional so there was no basis for delay. If Doe
developed a successful Plain challenge, the indictment against him could
then be dismissed.
3. Discussion. As a preliminary issue, the State claims that Doe did
not raise a Plain challenge but only filed a motion to continue to allow him
28
to challenge the composition of the jury. The motion includes the label
“Motion to Challenge Grand Jury,” but in the text it seeks to continue the
grand jury in order to challenge the composition of the grand jury. This
pleading is hardly a model of clarity. The district court denied the motion
to continue but held that the Plain claim could be raised at a later date.
Iowa Rule of Criminal Procedure 2.3(2)(a) states that a defendant
“may” raise what is now called a Plain-type challenge before the grand jury
is sworn. It is not clear that “may” means “must.” In any event, we think
the filing of the document entitled “Motion to Challenge Grand Jury” with
text seeking a continuance to gather information to support a potential
challenge is sufficient compliance to satisfy the rule, even if it is mandatory
in nature. The parties and the district court were on adequate notice of
the potential Plain challenge prior to the swearing of the grand jury.
We now move to the major issue, namely, whether the rule requires
not only that a challenge be filed prior to the swearing of the grand jury
but also whether the matter must be decided before the grand jury is
sworn. The rule does not say that. It does say that if the challenge is
sustained, the court shall take appropriate action to compose a proper
grand jury panel or proceeding, but that can occur after a grand jury is
sworn.
Doe makes a fair point that by allowing the grand jury proceedings
to continue, the proceedings may ultimately be for naught if he prevails on
his Plain claim. But he is not harmed by the grand jury receiving
testimony. He is harmed by grand jury action. The district court and the
parties should expeditiously resolve the issue, but allowing the grand jury
to sit and receive previously scheduled testimony while the Plain challenge
is developed by the parties is not a substantial injustice.
29
IV. Conclusion.
For the above reasons, the judgment of the district court is affirmed
in part, reversed in part, and remanded with directions.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
WITH DIRECTIONS.
All justices concur except McDonald, J., who concurs in part and
dissents in part.
30
#18–1534, In re 2018 Grand Jury of Dallas Cty.
McDONALD, Justice (concurring in part and dissenting in part).
I respectfully concur in part and dissent in part. I concur in all parts
of the majority opinion except its reversal of the district court’s ruling on
the motion to quash the grand jury subpoena. On that issue, I respectfully
dissent.
This court reviews the district court’s ruling on a motion to quash a
subpoena for an abuse of discretion. See Morris v. Morris, 383 N.W.2d
527, 529 (Iowa 1986) (applying an abuse of discretion standard); Mason v.
Robinson, 340 N.W.2d 236, 243 (Iowa 1983) (stating “we conclude our trial
courts have wide discretion to quash subpoenas or issue protective
orders”). “Reversal is warranted only if the grounds relied on by the district
court are clearly unreasonable or untenable.” Pattison Bros. Miss. River
Terminal, Inc. v. Iowa Dist. Ct., 630 N.W.2d 782, 787 (Iowa 2001). This
court’s mere disagreement with the district court’s discretionary ruling is
not enough to warrant reversal under this standard. This court is not to
substitute its collective judgment for that of the district court. Instead,
under an abuse of discretion standard, this court must affirm the district
court’s discretionary ruling absent a firm and definite conviction the ruling
is “beyond the pale of reasonable justification under the circumstances”
presented—a decision so flawed and prejudicial to the administration of
justice that this court must provide relief. See Harman v. Apfel, 211 F.3d
1172, 1175 (9th Cir. 2000).
The grand jury is an integral part of our constitutional
heritage which was brought to this country with the common
law. The Framers, most of them trained in the English law
and traditions, accepted the grand jury as a basic guarantee
of individual liberty . . . .
31
United States v. Mandujano, 425 U.S. 564, 571, 96 S. Ct. 1768, 1774
(1976). The grand jury functions as both a sword and a shield. See Admin.
Office of U.S. Cts., Handbook for Federal Grand Jurors 4 (Rev. Apr. 2012),
www.uscourts.gov/sites/default/files/grand-handbook.pdf (“[T]he grand
jury operates both as a ‘sword,’ authorizing the government’s prosecution
of suspected criminals, and also as a ‘shield,’ protecting citizens from
unwarranted or inappropriate prosecutions.”). Its purpose is both to
investigate criminal conduct and to protect citizens against unfounded
criminal charges. See Branzburg v. Hayes, 408 U.S. 665, 686–87, 92
S. Ct. 2646, 2659 (1972). The grand jury’s authority, particularly its
investigative authority, is broad. See United States v. Calandra, 414 U.S.
338, 344, 94 S. Ct. 613, 618 (1974) (“The grand jury’s investigative power
must be broad if its public responsibility is adequately to be discharged.”).
Indispensable to the grand jury is the authority to compel the attendance
and testimony of witnesses and to require the production of evidence. See
Kastigar v. United States, 406 U.S. 441, 443, 92 S. Ct. 1653, 1655 (1972);
see generally United States v. White, 322 U.S. 694, 64 S. Ct. 1248 (1944).
The grand jury’s authority to compel witness testimony and require the
production of evidence rests on the well-established principle that “the
public . . . has a right to every man’s evidence.” Branzburg, 408 U.S. at
688, 92 S. Ct. at 2660 (quoting United States v. Bryan, 339 U.S. 323, 331,
70 S. Ct. 724, 730 (1950)). “When called by the grand jury, witnesses are
thus legally bound to give testimony.” Mandujano, 425 U.S. at 572, 96
S. Ct. at 1774.
Of course, the grand jury’s authority to obtain every man’s evidence
is subject to statutory and common law privileges. See 3 Wayne R. LaFave
et al., Criminal Procedure § 8.6(b), at 156 (4th ed. 2015). I thus agree with
the majority opinion that the work-product protection can be asserted in
32
grand jury proceedings. See, e.g., In re Grand Jury Proceedings, G.S. &
F.S., 609 F.3d 909, 912 (8th Cir. 2010) (“Ordinarily, attorney-client
communications and attorney work product are not discoverable, even in
a grand jury investigation.”); In re Green Grand Jury Proceedings, 492 F.3d
976, 979 (8th Cir. 2007) (“Attorney-client communications and attorney
work product are privileged and are not ordinarily discoverable—even by
the grand jury.”).
Although I agree the work-product protection can be asserted in
grand jury proceedings, I disagree with the majority opinion’s apparent
conclusion that a target or witness’s assertion of the work-product
protection requires that a grand jury subpoena be quashed. The
application and scope of the work-product doctrine is nuanced and fact-
specific. Nowhere is this truer than in a grand jury investigation. In the
context of a grand jury investigation, the protection afforded work product
is to some extent unsettled and may be different than in other contexts.
See, e.g., In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180,
184–85 (2d Cir. 2007) (“It is clear that the work product doctrine applies
to grand jury proceedings, but arguably less clear what species of work
product protection a court should apply.”); In re Green Grand Jury
Proceedings, 492 F.3d at 981 (drawing a distinction between the
discoverability of opinion work product and ordinary work product in
grand jury proceedings); In re Grand Jury Subpoena, 220 F.R.D. 130, 142
(D. Mass. 2004) (“The work product doctrine’s ‘scope and effect outside the
civil discovery context is largely undefined,’ however, and its application
in cases involving grand jury subpoenas is particularly unsettled.”
(quoting In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1013
(1st Cir. 1988))). “This is partly because of the unique significance of the
grand jury in our system of government: ‘Nowhere is the public’s claim to
33
each person’s evidence stronger than in the context of a valid grand jury
subpoena.’ ” In re Grand Jury Subpoena, 220 F.R.D. at 142 (quoting In re
Sealed Case, 676 F.2d 793, 806 (D.C. Cir. 1982)). The grand jury is sui
generis. “[I]t belongs to no branch of the institutional [G]overnment . . . .”
State v. Iowa Dist. Ct., 568 N.W.2d 505, 508 (Iowa 1997) (quoting United
States v. Williams, 504 U.S. 36, 47, 112 S. Ct. 1735, 1742 (1992)). It is a
“grand inquest” whose investigations are “not to be limited narrowly by
questions of propriety.” Calandra, 414 U.S. at 343, 94 S. Ct. at 617
(quoting Blair v. United States, 250 U.S. 273, 282, 39 S. Ct. 468, 471
(1919)).
Given the nuanced and fact-specific inquiry required to resolve an
assertion of work-product protection in response to a grand jury
subpoena, I cannot conclude the district court’s discretionary ruling to
deny the motion to quash was beyond the pale of reasonable justification
under the circumstances presented. Indeed, it seems to me the district
court’s ruling might be preferable to the majority’s resolution of the issue.
Denying the motion to quash and allowing the grand jury to continue its
inquest while at the same time allowing the witness to assert the privilege
in response to specific questions would allow for the development of a
better record to determine whether the question posed to the witness
actually sought information protected by the work-product doctrine,
whether the witness had standing to assert the work-product doctrine as
a ground for refusing to answer the question, and whether the information
was nonetheless discoverable notwithstanding the assertion of work-
product protection. This more nuanced approach has been adopted by
other courts in response to a grand jury witness’s assertion of a privilege.
See, e.g., Mandujano, 425 U.S. at 575, 96 S. Ct. at 1776 (“The stage is
therefore set when the question is asked. If the witness interposes his
34
privilege, the grand jury has two choices. If the desired testimony is of
marginal value, the grand jury can pursue other avenues of inquiry; if the
testimony is thought sufficiently important, the grand jury can seek a
judicial determination as to the bona fides of the witness’ Fifth Amendment
claim . . . .”); In re Grand Jury Subpoena, 831 F.2d 225, 227, 228 (11th
Cir. 1987) (holding “an attorney seeking to quash a subpoena must assert
the attorney-client privilege on a document-by-document basis” and
reversing district court order quashing grand jury subpoena); In re Grand
Jury Investigation, 431 F. Supp. 2d 584, 592 (E.D. Va. 2006) (“In the
present circumstances, however, Roe’s motion fails; the assertion of the
[marital] privilege is premature and cannot, in this case, serve as a basis
to quash the subpoena. Rather, John Doe must appear and testify, but
may assert the privilege in response to specific questions.”); In re Grand
Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321, 322, 334
(S.D.N.Y. 2003) (protecting attorney–client privilege and work product on
a question-by-question and document-by-document basis “between and
among a prospective defendant in a criminal case, her lawyers, and a
public relations firm hired by the lawyers to aid in avoiding an
indictment”); In re Grand Jury Matter, 147 F.R.D. 82, 87 (E.D. Pa. 1992)
(holding expert consultant retained by target’s law firm could not withhold
certain documents claimed to be protected by the work-product doctrine);
Losavio v. Dist. Ct., 533 P.2d 32, 36 (Colo. 1975) (en banc) (“[A]n attorney-
witness must, except in the most exceptional of circumstances, honor a
properly issued subpoena by appearing before the grand jury. It is then
for the trial court to determine whether a specific interrogatory posed by
the grand jury or the district attorney calls for an answer which falls within
or without the privilege . . . .”); In re Grand Jury Subpoenas Duces Tecum,
574 A.2d 449, 457 (N.J. Super. Ct. App. Div. 1989) (“[I]n contrast to a
35
subpoena duces tecum, a blanket motion to quash a subpoena ad
testificandum is extremely inadvisable. Instead, the attorney should be
called upon to appear and assert the attorney-client privilege after hearing
the question or questions addressed to him.” (Citation omitted.)); Beach v.
Shanley, 465 N.E.2d 304, 307 (N.Y. 1984) (“To the extent that a subpoena
seeks testimony, the assertion that the contemplated testimony is subject
to a privilege will not usually justify quashing the subpoena. In that event,
litigation must await such time as when the witness refuses to answer the
question on the ground that privileged information is concerned and an
attempt is made to compel a response.” (Citations omitted.)); Movants to
Quash Grand Jury Subpoenas v. Powers, 839 P.2d 655, 657 (Okla. 1992)
(“We hold that assuming, but without deciding, that while such a First
Amendment privilege may come into existence under particular facts, it
does not authorize the quashing of these grand jury subpoenas. The
presiding judge of the grand jury has the power to rule on any claimed
privilege on which the petitioners desire to rely when the privilege is
invoked.”).
Given the substantial authority supporting the action of the district
court, I cannot conclude the district court’s ruling on the motion to quash
was beyond the pale of reasonable justification under the circumstances
presented so long as the witness is allowed to invoke the work-product
protection in response to specific questions. With this understanding, I
would thus affirm the ruling of the district court in all respects.