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Case 9:23-cr-80101-AMC Document 567 Entered on FLSD Docket 05/21/2024 Page 20 of 29
under governing authority. Cf. In re Grand Jury Proc., 142 F.3d 1416, 1428 (11th Cir. 1998) (after
attorney is compelled to provide evidence to grand jury, defendant can seek suppression at trial).
The crime-fraud exception, where it applies, “removes the ‘seal of secrecy’ from attorney-
client communications or work product materials.” Drummond Co., Inc. v. Conrad & Scherer,
LLP, 885 F.3d 1324, 1335 (11th Cir. 2018) (quoting United States v. Zolin, 491 U.S. 554, 563
(1989)). The proponent of the exception (here, the Government) must make a two-part showing.
See, e.g., In re Grand Jury Subpoena, 2 F. 4th at 1345. “First, there must be a prima facie showing
that the client was engaged in criminal or fraudulent conduct when he sought the advice of counsel,
that he was planning such conduct when he sought the advice of counsel, or that he committed a
crime or fraud subsequent to receiving the benefit of counsel’s advice.” In re Grand Jury
Investigation (Schroeder), 842 F.2d 1223, 1226 (11th Cir. 1987). Second, there must be a showing
that the attorney-client communications “further[ed]” or were “closely related” to “the criminal or
fraudulent activity.” Id. at 1226. This standard applies “in the same way” to attorney work-product
as it does to attorney-client communications. Cox v. Administrator United States Steel & Carnegie,
17 F.3d 1386, 1422 (11th Cir. 1994). The record here easily satisfies both prongs.
1. The Evidence Readily Establishes a Prima Facie Showing of a Crime
The requirement of a prima facie showing “is satisfied by a showing of evidence that, if
believed by a trier of fact, would establish the elements of some violation that was ongoing or
about to be committed.” In re Grand Jury Subpoena, 2 F.4th at 1345 (quotation marks omitted).
The “prime facie showing must only have some foundation in fact.” Id. For example, prior to an
2 The attorney-client privilege attaches to “communications made in confidence by a client
to an attorney for the purposes of securing legal advice or assistance.” In re Grand Jury Subpoena,
2 F.4th at 1345 (quotation marks omitted). The attorney work-product privilege applies to material
obtained or prepared by counsel in the course of carrying out their work in anticipation of litigation.
Drummond Co., Inc. v. Conrad & Scherer, LLP, 885 F.3d 1324, 1334-35 (11th Cir. 2018).
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