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United States v. Lischewski

United States District Court, N.D. California

November 1, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER LISCHEWSKI, Defendant.

          ORDER GRANTING MOTION TO QUASH DOCKET NO. 442

          EDWARD M. CHEN, UNITED STATES DISTRICT JUDGE.

         During the December 16, 2016 call, Kenneth Worsham's counsel, Jordan Ludwig and J. Jeffrey H. Rutherford (“Worsham's Counsel”), spoke with the Government regarding, inter alia, the prosecution of Robert Worsham. Pending before this Court is Worsham's Counsel's motion to quash Defendant's subpoenas demanding their appearance and production of documents related to this telephone conversation. For the reasons discussed below, the motion to quash is GRANTED.

         I. BACKGROUND

         On October 2, 2019, Defendant served Worsham's Counsel with Rule 17 subpoenas demanding their appearance on November 4, 2019 at 8:30 a.m., with the following documents: “Any notes, memoranda, or documents, memorializing or relating to communications with representatives of the United States Department of Justice on or about December 16, 2016, in connection with your representation of Kenneth Worsham.” Docket No. 442 (“Mot.”), at Ex. A.

         On October 18, 2019, Worsham's Counsel and Defendant exchanged e-mails. Mot. at 5. Worsham's Counsel indicated they would not waive attorney-work product protection. Id. Defendant “indicated that he would like to discuss with [Worsham's Counsel] their recollection of what the prosecutors said to them on the December 16, 2016 phone call, as opposed to their mental impressions and work product.” Id. Worsham's Counsel declined and filed the instant motion. Id.

         II. DISCUSSION

         Worsham's Counsel moved to quash the subpoenas on the grounds that (1) they seek privileged attorney work product; (2) they seek inadmissible material; and (3) they require document production and testimony that is contrary to the Worsham's Counsel's ethical obligations under the California Rules of Professional Conduct. Id. at 6. The Government joins Worsham's Counsel's motion on the same grounds, adding that Defendant already has the requested information in his possession. Docket No. 448 at 5. In opposition, Defendant takes the position that he does not seek Worsham's Counsel's mental impressions about the conversations, or any legal advice provided to Mr. Worsham thereafter. Docket No. 447 (“Opp.”), at 3. Instead, he requests “what was communicated during a phone call that clearly included exculpatory information.” Id. This constitutes fact work product.

         Defendant concedes the information he seeks is work product. Opp. at 3. Worsham's Counsel make clear they do not waive the work-product privilege. Mot. at 5; Declaration of Jordan L. Ludwig (“Ludwig Decl.”), at ¶ 4. Thus, the Court must determine whether Defendant has made an adequate showing of substantial need for the evidence and an inability to obtain its contents elsewhere without undue hardship. See Admiral Ins. Co. v. U.S. Dist. Court for Dist. of Arizona, 881 F.2d 1486, 1494 (9th Cir. 1989) (citing Upjohn v. United States, 449 U.S. 383, 401 (1981)).

         Worsham's Counsel argue that their “mental impressions, conclusions, and strategic thoughts about how to best represent their client that they thought important enough to write down” during the December 16, 2016 call are not at issue in this case. Mot. at 8-9. But even if only fact work product were at issue, fact work product may be discoverable only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Fed.R.Civ.P. 26(b)(3).

         Defendant has not made a “substantial showing” that he is unable to obtain needed information because he already has the disclosures made by the Government as per the Court's order. He has the Government notes of the December 16 call. Additionally, Defendant possess a sworn declaration from a DOJ attorney that stated the following, under penalty of perjury:

• The declarant participated in the phone call on December 16, 2016;
• Prior to the December 16, 2016 call, the Government and Kenneth Worsham reached a plea agreement in principle;
• During the call, the Government responded to Kenneth Worsham's counsel's questions about the draft plea agreement and the topics of his upcoming ...

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