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United States v. Zolin

Supreme Court of United States
491 U.S. 554 (1989)
ELI5:

Rule of Law:

A court may conduct an in camera review of allegedly privileged attorney-client communications to determine if the crime-fraud exception applies, but the party opposing the privilege must first make a threshold showing of a factual basis adequate to support a good faith belief that such review might reveal evidence that the exception is applicable.


Facts:

  • The IRS Criminal Investigation Division was investigating the tax returns of L. Ron Hubbard, founder of the Church of Scientology (the Church), for the years 1979 through 1983.
  • During separate state court litigation between the Church and a former member, Gerald Armstrong, 51 documents, including two tapes containing attorney-client communications, were filed with the Clerk of the Los Angeles County Superior Court.
  • Some of the documents and the tapes were filed under seal.
  • The tapes had been inadvertently given to Armstrong by L. Ron Hubbard’s personal secretary, who mistakenly believed they were blank.
  • The IRS lawfully obtained partial transcripts of these tapes from a confidential third-party source.

Procedural Posture:

  • The IRS served a summons on Frank S. Zolin, the Clerk of the Los Angeles County Superior Court, demanding production of documents, including two tapes, related to the Church of Scientology.
  • The Church and Mary Sue Hubbard intervened in the United States District Court for the Central District of California to oppose the summons, asserting the attorney-client privilege over the tapes.
  • The IRS argued the crime-fraud exception applied and requested the District Court to listen to the tapes in camera.
  • The District Court, relying on partial transcripts but refusing to listen to the full tapes, found the crime-fraud exception inapplicable and denied enforcement of the summons for the tapes.
  • The IRS, as cross-appellant, appealed to the U.S. Court of Appeals for the Ninth Circuit.
  • The Ninth Circuit panel affirmed the District Court's ruling, holding that evidence for the crime-fraud exception must come from sources independent of the communications themselves, thereby precluding in camera review of the tapes.
  • The Ninth Circuit granted an en banc rehearing but later vacated the order, reinstating the panel's opinion.
  • The United States petitioned the Supreme Court for a writ of certiorari, which was granted.

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Issue:

Does a district court, in determining the applicability of the crime-fraud exception to the attorney-client privilege, have the discretion to conduct an in camera review of the allegedly privileged communications themselves, and may it consider evidence that is not independent of those communications to make that determination?


Opinions:

Majority - Justice Blackmun

Yes. A district court has discretion to conduct an in camera review of allegedly privileged communications to determine if the crime-fraud exception applies and is not limited to 'independent evidence' for this determination. The court rejected the Ninth Circuit's rigid rule requiring evidence of crime or fraud to come from sources entirely independent of the contested communications. The Court reasoned that Federal Rule of Evidence 104(a) does not prohibit such review; interpreting it to do so would render the crime-fraud exception a 'dead letter' because the communication itself is often the best evidence of its criminal purpose. However, to protect the privilege from 'groundless fishing expeditions,' the review is not automatic. The party seeking disclosure must first present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception's applicability. This threshold showing can be met using any relevant, lawfully obtained evidence, including evidence that is not 'independent' of the privileged communication, such as the partial transcripts in this case. Once this showing is made, the decision to conduct the review rests in the district court's sound discretion.



Analysis:

This decision resolves a circuit split by rejecting the stringent 'independent evidence' rule for invoking the crime-fraud exception, thereby making it easier for parties to challenge claims of attorney-client privilege. It establishes a new, two-step framework that balances the protection of legitimate confidential communications with the need to prevent the privilege from being used to conceal or facilitate illegal activity. By allowing courts to review the contested communications themselves after a threshold showing, the ruling provides a crucial tool for uncovering abuse of the privilege. The case's framework remains the standard for federal courts in determining whether to conduct an in camera review for crime-fraud purposes.

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