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Page 49 
531 F.3d 197 
(Cite as: 531 F.3d 197) 
factors are used in the penalty phase, a re-
viewing court must re-weigh the factors 
and perform a harmless error analysis. Id. 
Applying this analysis, the McCullah court 
found that two sets of aggravating factors 
were duplicative because in each of them, 
"while the factors are not identical per se, 
[one] factor necessarily subsumes the 
[other] factor." Id at 1111. 
Three years after the Tenth Circuit's de-
cision in McCullah, the issue of duplicative 
aggravating factors was crsidered by the 
Supreme Court in Jones . United States, 
527 U.S. 373, 119 S.Ct. 2 902 144 L.Ed.2d 
370 (1999), a case that reviewed a Fifth 
Circuit decision applying McCullah. The 
Fifth Circuit had found that two of the ag-
gravating factors charged by the govern-
ment were unconstitutionally duplicative. 
The Supreme Court declined to decide 
whether 
the 
Tenth 
Circuit's 
double-
counting theory was either valid or appro-
priately applied by the Fifth Circuit. It at 
398-99, 119 S.Ct. 2090. Instead, the Court 
stated that "[w]e have never before held 
that aggravating factors could be duplicat-
ive so as to render them constitutionally in-
valid.... What we have said is that the 
weighing process may be impermissibly 
skewed if the sentencing jury considers an 
invalid factor." hi at 398 (citing Stringer, 
503 U.S. at 232, 112 S.Ct. 1130). Assum-
ills for the sake of argument that the Tenth 
Circuit's theory in McCullah applied in 
Jones, the Court found that the two non-
statutory aggravating factors at issue-(I) 
the victim's "young age, her slight stature, 
her background, and her unfamiliarity with 
San Angelo, Texas" and (ii) the victim's 
"personal characteristics and the effect of 
the instant offense on [her] family"-were 
not duplicative. Jones, 527 U.S. at 378 n. 
3, 119 S.Ct. 2090. Instead, "at best, certain 
evidence was relevant to two different ag-
gravating factors." Id. at 399-400, 119 
S.Ct. 2090. The Court also noted that "any 
risk that the weighing process would be 
skewed was eliminated by the District 
Court's instruction" to the jury that it 
should weigh the value of each factor 
rather than counting the number of factors 
on each side. /dm!. 
FN26. Currently, the circuit courts 
are split as to whether duplicative 
aggravating factors are unconstitu-
tional and as to the meaning of the 
Supreme Court's decision in Jones. 
The Fourth and Ninth Circuits have 
aligned with the Tenth Circuit and 
adopted their own variations of tke 
rule in McCullah. See Allen V. 
Woodford, 395 F.3d 979, 1012-13 
(9th Cir.2005) (finding that it was 
unconstitutional for the court and 
the prosecutor to present the de-
fendant's prior crimes as the heart 
of 
three 
different • aggravating 
factors),• United States I. Tipton, 90 
F.3d 861, 900 (4th Cir.1996) ("We 
agree with the McCullah court that 
... a submission ... that permits and 
results in cumulative findings of 
more than one of the [statutory ag-
gravating factors] is constitutional 
error."). In contrast, the Eighth Cir-
cuit has rejected the duplicative ag-
gravating factor theory when ap-
plied to the FDPA, see Purkey, 428 
F.3d at 762, and the Fifth Circuit 
has withdrawn its support of the 
double-counting theory in• light of 
Jones, see United States D. 1?obin-
son, 367 F.3d 278, 292-93 (5th 
Cir.2004) ("Although our case law 
once [supported the theory], the Su-
preme Court recently admonished 
that it does not support that theory 
of review.") 
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Page 51 
531 F.3d 197 
(Cite as: 531 F.3d 197) 
IX. SUFFICIENCY OF THE INDICT-
MENT 
[49] Fell next complains that the gov-
ernment was required to charge the non-
statutory aggravating factors in the indict-
ment and that its failure to do so violates 
the Fifth Amendment's Indictment Clause. 
" in Four courts of appeals have con-
sidered*237 the issue of whether non-
statutory aggravators must be submitted to 
a grand jury and included in an indictment, 
andall four have held that the FDPA does 
not expressly lc elude this r-Nuirement. See 
United States 
LeCroy, 441 F.3d 914, 922 
(11th Cir.200 , cert. denied, --- U.S. ----, 
127 S.Ct. 2096, 167 L.Ed.2d 816 (2007) 
Purkey, 428 F.3d at 749-50, cert. denied, 
549 U.S. 975, 127 S.Ct. 433 166 L.Ed.2d 
307 (2006); United States.
G  Bourgeois, 
423 F.3d 50 1 507-08 (5th 
tr.2005) cert. 
,i
denied, 547 U.S. 1132, 126 S.Ct. 2026, 1 4 
L.Ed.2d 786 (2006); United States . 
Higgs, 353 F.3d 281, 298 (4th Cir.200 , 
cert. dente 4 543 U.S. 999, 125 S.Ct. 62 , 
160 L.Ed.2d 456 (2004). 
FN27. Fell contends that he raised 
this issue pretrial and it was denied, 
citing the district court's September 
2002 
order, 
217 
F.Supp.2d 
at 
483-84. It appears, however, that 
the precise issue the district court 
addressed in that order was whether 
the FDPA precluded the govern-
ment from including aggravating 
factors in a grand jury mdictment 
and was thus facially unconstitu-
tional. See id. The district court 
held that the statute suffered from 
no such constitutional infirmity. See 
id.; Fell, 360 F.3d at 138. All courts 
of appeals to have considered that 
argument have likewise rejected it. 
See Sampson, 486 F.3d at 21. 
Fell, relying on Cunningham le Califor-
nia, 549 U.S. 270, 127 S.Ct. 
56, 166 
L.Ed.2d 856 (2007), Ring I. Arizona, and 
related Supreme Court precedents, urges us 
reach a different conclusion. In Apprendi 
New Jersey, 530 U.S. 466 120 S.Ct. 
348, 147 L.Ed.2d 435 (2000), the Su-
preme Court emphasized that "Ulf a State 
makes an increase in a defendants author-
ized punishment contingent on the finding 
of a fact, that fact-no matter how the State 
labels it-must be found by a jury beyond a 
reasonable doubt." Ring, 536 U.S. at 602, 
122 S.Ct. 2428 (citing Apprendl, 530 U.S. 
at 482-83, 120 S.Ct. 2348). Two years 
later, in Ring the Supreme Court held that 
an aggravating factor rendering a defendant 
death-eligible "operate[s] as the functional 
equivalent of an element of a greater of-
fense" and, therefore, must be found by a 
jury. Id. at 609, 122 S.Ct. 2428 (internal 
quotation marks and citation omitted). 
150] Although Ring said nothing re-
garding the Indictment Clause of the Fifth 
Amendment, some courts of appeals have 
interpreted the decision as applying with 
equal force at the indictment stage as at the 
penalty stage of a trial. Accordingly, sever-
al circuits, including our own, require the 
government to charge statutory aggravating 
factors under the FDPA in the indictment. 
See, e.g., Quinones, 313 F.3d at 53 n. 1 
(noting that, pursuant to Ring I. Arizona, 
"statutory aggravating factors ... must now 
be alleged in the indictment and found by a 
jury in capital cases"); see also Bourgeois, 
423 F.3d at 507; Brown, 441 F.3d at 1367 
(collecting cases). 
Here, the district court noted that the 
government "implicitly conceded" that the 
Fifth Amendment requires that statutory 
aggravating factors be charged in the in-
dictment when, following Ring, it obtained 
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Page 53 of 55 
531 F.3d 197 
(Cite as: 531 F.3d 197) 
gmvating factors beyond a reasonable 
doubt. Regardless, the FDPA requires only 
that the jury sentencing Fell find mental 
culpability and at least one statutory ag-
gravator, both charged in the superseding 
indictment, before finding him "eligible" 
for the death penalty. See 18 U.S.C. § 
3593(e). Whether or not Fell should be 
sentenced to death was a calculation made 
by the jury based on a variety of statutory 
and non-statutory considerations. Accord-
ingly, the factors that Fell's jury assessed 
when determining the permissibility of the 
death penalty in his case did not change the 
maximum sentence authorized under the 
statute. We find that the government's fail-
ure to include the non-statutory aggravat-
ing factors in the indictment did not violate 
the Fifth Amendment. 
X. CONSTITUTIONALITY OF THE 
FDPA 
[51] On appeal, Fell renews his claim 
that the FDPA violates the Fifth and Sixth 
Amendments by requiring in a single pen-
alty phase, not governed by the Federal 
*239 Rules of Evidence, the presentation 
of prejudicial evidence relevant to determ-
ining whether a defendant should be sen-
tenced to death at the same time that the 
jury 
makes 
findings 
regarding 
the 
gateway" factors allowing his statutory 
eligibility for the death penalty. This argu-
ment is necessarily predicated on the facial 
unconstitutionality of the FDPA, a premise 
that we rejected in an earlier opinion. Fell, 
360 F.3d at 144. In any event, the presenta-
tion of victim impact and character evid-
ence to the jury during Fell's sentencing 
hearing caused no prejudice. 
After Fell 1, the district court rejected 
numerous other constitutional challenges to 
the FDPA. See Fell, 372 F.Supp.2d at 753. 
Fell now renews his contention that the 
Page 53 
FDPA's bifurcated trial procedure violates 
the Fifth and Sixth Amendments. He 
claims that the procedure allows for the in-
troduction of potentially prejudicial senten-
cing evidence relating to character, prior 
uncharged conduct, and victim impact at 
the same time that the government is at-
tempting to prove death-eligibility factors-
the elements of capital murder-beyond a 
reasonable doubt. 
When a jury reaches the penalty phase, 
it often decides death eligibility after it 
hears "selection" evidence relating to 
whether the death penalty is appropriate. 
This approach may prejudice juror deliber-
ations. Ring and its progeny suggest that 
the FDPA's aggravating factors should be 
proven to a jury in the same manner as the 
other elements of the crint Writing•for the 
majority in Sattazahn 
. Pennsylvania, 
Justice Scalia explained 
at before Ring, 
"capital-sentencing proceedings were un-
derstood to be just that: sentencing pro-
ceedings. " 537 U.S. 101, 110, 123 S.Ct. 
732, 154 L.Ed.2d 588 (2003) (internal cita-
tion omitted). In contrast, after Ring, 
factors that make a defendant eligible for a 
death sentence are treated as "elements" of 
a crime. Id at 111, 123 S.Ct. 732. 
Fell contends that because these eligib-
ility factors are considered elements of the 
crime, they should be subject to the same 
constitutional protections at trial, including 
the Sixth Amendment guarantee that the 
evidence against a defendant be proven 
beyond a reasonable doubt and be probat-
ive of an element of the crime. See Ring, 
536 U.S. at 609% 122 S.Ct. 2428. In con-
trast, the victim impact evidence and char-
acter evidence constitutionally required for 
sentencing purposes can sometimes be un-
duly prejudicial, inflammatory, or irrelev-
ant to guilt. Accordingly, "[m]uch of the 
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Page 55 
531 F.3d 197 
(Cite as: 531 F.3d 197) 
generally Blake 
Carbone, 489 F.3d 88, 
100 (2d Cir.200 . We find no error in the 
district court's implementation of the 
FDPA's sentencing procedures. 
[53] Regardless, Fell suffered no preju-
dice as a consequence of the manner in 
which the sentencing hearing was conduc-
ted. At sentencing, the government submit-
ted three statutory aggravating factors, only 
one of which had to be found beyond a 
reasonable doubt to render Fell eligible for 
the death penalty: (1) "The death of 
Teresca King occurred during the commis-
sion of a kidnapping;" (2) "Donald Fell 
committed the offense m an especially 
heinous, cruel, or depraved manner in that 
it involved serious physical abuse to 
Teresca King;" and (3) "Donald Fell inten-
tionally killed or attempted to kill more 
than one person in a single criminal epis-
ode." Fell did not contest factors one or 
three during the sentencing phase; given 
his confessed participation in the kidnap-
ping and murder of' Ms. King, it would 
have been hard to do so. Presented with 
two uncontested factors, and needing to 
find only one to deem Fell "death eligible," 
the jury, in our view, was unlikely to have 
been 
swayed 
by 
the 
additional 
"death-selection" evidence-mainly victim 
impact and character evidence-when delib-
erating on whether Fell was "death eli-
gible. Accordingly, we conclude that Fell 
suffered no unfair prejudice resulting from 
the district court's implementation of the 
FDPA's sentencing procedures. 
CONCLUSION 
Chief Judge Sessions presided over this 
complicated and difficult trial with care, 
#
fairness, and an exemplary concern for the 
protection of Fell's ri ts. The judgment of 
the District Court is a med. 
U.S. it Fell 
531 F. d 197 
END OF DOCUMENT 
C.A.2 (Vt.),2008. 
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Page I of 17 
Westlaw. 
Page 1 
348 F.3d 16, 62 Fed. R. Evid. Serv. 1032 
(Cite as: 348 F.3d 16) 
United States Court of Appeals, 
First Circuit. 
In re KEEPER OF THE RECORDS 
(GRAND JURY SUBPOENA AD-
DRESSED TO XYZ CORPORATION). 
XYZ Corporion, Appellant, 
United States of America, Appellee. 
Nos. 03-1726, 03-1784. 
Heard Sept 4, 2003. 
Decided Oct. 22, 2003. 
After corporation refused to produce 
documents requested by investigatory sub-
poena duces tecum issued by federal grand 
jury, on grounds that documents were 
shielded by attorney-client and work-
product privileges, government moved to 
compel production. The United States Dis-
trict Court for the District of Massachu-
setts, William G. Young, Chief Judge, 
ordered corporation to produce documents, 
then cited corporation for contempt when' it 
declined to do so. Corporation appealed.. 
The Court of Appeals, Selya, Circuit 
Judge, held that: (1) as a matter of first im-
pression, extrajudicial disclosure of attor-
ney-client communications, not thereafter 
used by client to gain adversarial advant-
age in judicial proceedings, cannot work an 
impliedwaiver of all confidential commu-
nications on the same subject matter; (2) 
jurisdiction existed over appeals; (3) com-
munications made during conference call 
were not confidential and were not subject 
to colorable claim of attorney-client priv-
ilege; (4) disclosures during conference 
call did not support implication of broad 
subject matter waiver of corporation's at-
torney-client privilege; and (5) corpora-
tion's pm-indictment proffers did not im-
pliedly waive attorney-client privilege. 
Reversed. 
West I leadnotes 
(lj Contempt 93 4C=,66(1) 
93 Contempt 
93I1 Power to Punish, and Proceedings 
Therefor 
93k66 Appeal or Error 
93k66O) k. Nature and Form of 
Remedy and Jurisdiction. Most Cited Cases 
Federal Courts 170B €556 
170B Federal Courts 
170BVIII Courts of Appeals 
170BVIII(C) Decisions Reviewable 
170BVIII(C)1 In General 
170B1(554 Nature, Scope and 
Effect of Decision 
170Bk556 
k. 
Discovery, 
Depositions, Witnesses or Affidavits: Most 
Cited Cases 
Court of Appeals had jurisdiction over 
appeals in which corporation challenged 
order compelling production of documents 
requested by investigatory subpoena duces 
tecum that corporation had withheld based 
on attorney-client and work-product priv-
ileges, and order that cited corporation for 
contempt due to its failure to comply. 
pj Federal Courts 170B €=.776 
170B Federal Courts 
170BVIII Courts of Appeals 
170BVIII(K) Scope, Standards, and 
Extent 
170BVIII(K)I In General 
170Bk776 k. Trial De Novo. 
Most Cited Cases 
Federal Courts 170B €=,823 
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Page 2 of 17 
Page 2 
348 F.3d 16, 62 Fed. R. Evid. Serv. 1032 
(Cite as: 348 F.3d 16) 
170B Federal Courts 
170BVIII Courts of Appeals 
170BVIII(K) Scope, Standards, and 
Extent 
170BVIII(IC)4 
Discretion 
of 
Lower Court 
170Bk823 
k. 
Reception of 
Evidence. Most Cited Cases 
Federal Courts 170B 4E ,870.1 
170B Federal Courts 
170BVIII Courts of Appeals 
170BVIII(K) Scope, Standards, and 
Extent 
170BVIII(K)5 Questions of Fact, 
Verdicts and Findings 
170Bk870 
Particular 
Issues 
and Questions 
170Bk870.1 k. In General. 
Most Cited Cases 
On an appeal concerning a claim of 
privilege, the standard of review depends 
on the precise issue being litigated; Court 
of Appeals reviews rulings on questions of 
law de novo, findings of fact for clear er-
ror, and judgment calls-such as evidentiary 
determinations-for abuse of discretion. 
[3] Federal Courts 170B C=763.1 
170B Federal Courts 
170BVIII Courts of Appeals 
170BVIII(K) Scope, Standards, and 
Extent 
170BVIII(K)1 In General 
170Bk763 Extent of Review 
Dependent on Nature of Decision Appealed 
from 
170Bk763.1 k. In General. 
Most Cited Cases 
Standard of review on appeal raising 
claim of privilege is not altered by the fact 
that the district court granted challenged 
motion without much elaboration of its 
thinking. 
[4] Federal Courts 170B tE:=416 
170B Federal Courts 
170BVI State Laws as Rules of De-
cision 
170BVI(C) Application to Particular 
Matters 
170Bk416 k. Evidence Law. Most 
Cited Cases 
Federal common law governed question 
of whether corporation waived attorney-cli-
ent privilege with respect to documents 
sought by investigatory subpoena duces 
tecum issued by federal grand jury. 
[5] Grand Jury 193 €=.36.3(2) 
193 Grand Jury 
193k36 Witnesses and Evidence 
193k36.3 Grounds for Refusal to 
Appear, Testify, or Produce Evidence 
193k36.3(2) k. Privilege. Most 
Cited Cases 
Despite a grand jury's vaunted right to 
every man's evidence, it must respect a val-
id claim of privilege. 
[6] Privileged Communications and Con-
fidentiality 31111€=.26 
311H 
Privileged 
Communications and 
Confidentiality 
311HI In General 
3111R24 Evidence 
311Hk26 k. Presumptions and 
Burden of Proof. Most Cited Cases 
(Formerly 410k222) 
Party who invokes privilege bears the 
burden of establishing that it applies and 
has not been waived. 
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Page 3 of 17 
Page 3 
348 F.3d 16, 62 Fed. R. Evid. Serv. 1032 
(Cite as: 348 F.3d 16) 
17] Privileged Communications and Con-
fidentiality 311H €=.108 
311H 
Privileged 
Communications and 
Confidentiality 
311HIII Attorney-Client Privilege 
311H1t108 k. Absolute or Qualified 
Privilege. Most Cited Cases 
(Formerly 410k198(1)) 
Attorney-client privilege is not limit: 
less, and courts must take care to apply it 
only to the extent necessary to achieve its 
underlying goals. 
[8] Privileged Communications and Con-
fidentiality 311H (
112 
311H 
Privileged 
Communications 
Confidentiality 
311HIII Attorney-Client Privilege 
311Hk112 k. Construction. 
Cited Cases 
(Formerly 410k198(1)) 
Attorney-client privilege must be nar-
rowly construed because it comes with sub-
stantial costs and stands as an obstacle of 
sorts to the search for truth. 
and 
Most 
[9] Privileged Communications and Con-
fidentiality 31IH €=.102 
311H 
Privileged 
Communications and 
Confidentiality 
311HIII Attorney-Client Privilege 
311Hk102 k. Elements in General; 
Definition. Most Cited Cases 
(Formerly 410k205, 410k198(1)) 
Attorney-client privilege protects only 
those communications that are confidential 
and are made for the purpose of seeking or 
receiving legal advice. 
110] Privileged Communications and 
Confidentiality 311H €=.168 
311H 
PriVileged 
Communications and 
Confidentiality 
311HIII Attorney-Client Privilege 
311Hk168 k. Waiver of Privilege. 
Most Cited Cases 
(Formerly 410k219(3)) 
Attorney-client 
privilege 
may 
be 
waived, in that when otherwise privileged 
communications are disclosed to a third 
party, the disclosure destroys the confiden-
tiality upon which the privilege is premised. 
ill] Privileged Communications and 
Confidentiality 311H Cz>168 
311H 
Privileged 
Communications 
and 
Confidentiality 
311HIII Attorney-Client Privilege 
311Hk168 k. Waiver of Privilege. 
Most Cited Cases 
(Formerly 410k219(3)) 
Conduct can serve to waive the attor-
ney-client privilege by implication. 
j12,1 
Privileged Communications and 
Confidentiality 311H 0=168 
311H 
Privileged 
Communications 
and 
Confidentiality 
311HIII Attorney-Client Privilege 
311Hk168 k. Waiver of Privilege. 
Most Cited Cases 
(Formerly 410k219(3)) 
Attorney-client privilege is highly val-
ued, and therefore courts should be cau-
tious about finding implied waivers. 
113] Privileged Communications and 
Confidentiality 311H €
168 
311H 
Privileged 
Communications 
and 
Confidentiality 
311HIII Attorney-Client Privilege 
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Page 4 
348 F.3d 16, 62 Fed. R. Evid. Serv. 1032 
(Cite as: 348 F.3d 16) 
311Hk168 k. Waiver of Privilege. 
Most Cited Cases 
(Formerly 410k219(3)) 
Claims of implied waiver of attorney-cli-
ent privilege must be evaluated in light of 
principles of logic and fairness, an evalu-
ation which demands a fastidious sifting of 
the facts and a careful weighing of the cir-
cumstances. 
1141 Privileged Communications and 
Confidentiality 31111 it=0156 
311H 
Privileged 
Communications and 
Confidentiality 
311H111 Attorney-Client Privilege 
311Hk156 k. Confidential Character 
of Communications or Advice. Most Cited 
Cases 
(Formerly 410k205) 
Outside counsel for corporation did not 
provide confidential advice during confer-
ence call involving corporation's officers, 
principals of corporation's co-venturer, and 
co-venturer's medical advisor, but rather 
merely helped to advocate corporation's 
position to co-venturer, and therefore com-
munications made during call were not 
subject to colorable claim of attorney-client 
privilege. 
(15] Privileged Communications and 
Confidentiality 31111 C=102 
311H 
Privileged 
Communications 
and 
Confidentiality 
311HIII Attorney-Client Privilege 
311Hk102 k. Elements in General; 
Definition. Most Cited Cases 
(Formerly 410k205) 
Privileged Communications and Confid-
entiality 311H C156 
311H 
Privileged 
Communications and 
Confidentiality 
311H111 Attorney-Client Privilege 
311H1c156 k. Confidential Character 
of Communications or Advice. Most Cited 
Cases 
(Formerly 410k205) 
For the attorney-client privilege to at-
tach to a communication, the communica-
tion must have been made in confidence 
and for the purpose of securing or convey-
ing legal advice, and the privilege evapor-
ates the moment that confidentiality ceases 
to exist. 
(161 Privileged Communications and 
Confidentiality 31111 'z0158 
311H 
Privileged 
Communications 
and 
Confidentiality 
311H111 Attorney-Client Privilege 
311Hk157 Communications Through 
or in Presence or Hearing of Others; Com-
munications with Third Parties 
311Hk158 k. In General. Most 
Cited Cases 
(Formerly 410k206) 
Presence of third parties is sufficient to 
undermine the confidentiality needed to es-
tablish that attorney-client privilege at-
tached to a communication. 
(171 Privileged Communications and 
Confidentiality 311H €=.168 
311H 
Privileged 
Communications and 
Confidentiality 
311HIII Attorney-Client Privilege 
311Hk168 k. Waiver of Privilege. 
Most Cited Cases 
(Formerly 410k219(3)) 
Any previously privileged information 
of corporation that was actually revealed 
during conference call involving corpora-
tion, its outside counsel, and its co-venturer 
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Page 5 
348 F.3d 16, 62 Fed. R. Evid. Serv. 1032 
(Cite as: 348 F.3d 16) 
lost any veneer of attorney-client privilege 
by virtue of implied waiver resulting from 
lack of requisite confidentiality during call. 
[18] Privileged Communications and 
Confidentiality 311H 4i;=>168 
311H 
Privileged 
Communications and 
Confidentiality 
311HIII Attorney-Client Privilege 
3111-1k168 k. Waiver of Privilege. 
Most Cited Cases 
(Formerly 410k219(3)) 
Waivers of attorney-client privilege by 
implication can sometimes extend beyond 
the matter actually revealed. 
[19] Privileged Communications and 
Confidentiality 31111 4E
> 168 
311H 
Privileged 
Communications 
and 
Confidentiality 
311HIll Attorney-Client Privilege 
311Hk168 k. Waiver of Privilege. 
Most Cited Cases 
(Formerly 410k219(3)) 
Extrajudicial disclosure of attorney-cli-
ent communications, not thereafter used by 
client to gain adversarial advantage in judi-
cial proceedings, cannot work an implied 
waiver of all confidential communications 
on the same subject matter. 
(201 Grand Jury 193 €=36.3(2) 
193 Grand Jury 
193k36 Witnesses and Evidence 
193k36.3 Grounds for Refusal to 
Appear, Testify, or Produce Evidence 
193k36.3(2) k. Privilege. Most 
Cited Cases 
Disclosures of confidential information 
that occurred during extrajudicial confer-
ence call between officers of corporation 
and principals of co-venturer, which con-
cerned parties' efforts to reach joint busi-
ness decision regarding marketing and 
withdrawal of neoteric medical device, did 
not support implication of broad subject 
matter waiver of corporation's attorney-cli-
ent privilege, so as to sustain order compel-
ling corporation to produce otherwise priv-
ileged documents relating to subject matter 
of call pursuant to grand jury's investigat-
ory subpoena duces tecum, particularly 
when corporation made no subsequent use 
of call in any judicial proceeding. 
[211 Privileged Communications and 
Confidentiality 311H €7=168 
311H 
Privileged 
Communications 
and 
Confidentiality 
311HIII Attorney-Client Privilege 
311Hk168 k. Waiver of Privilege. 
Most Cited Cases 
(Formerly 410k219(3)) 
If confidential information is revealed 
in an extrajudicial context and later reused 
in a judicial setting, the circumstances of 
the initial disclosure will not immunize the 
client against a claim of waiver of attorney-
client privilege. 
(221 Federal Courts 170B €=453 
1708 Federal Courts 
170BVIII Courts of Appeals 
170BVIII(K) Scope, Standards, and 
Extent 
170BVIII(K)1 In General 
1708k753 k. Questions Con-
sidered in General. Most Cited Cases 
Court of Appeals would consider argu-
ment 
that 
corporation's pre-indictment 
proffers waived attorney-client privilege, 
even though district court did not reach is-
sue, when parties had briefed issues, facts 
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Page 6 of 17 
Page 6 
348 F.3d 16, 62 Fed. R. Evid. Serv. 1032 
(Cite as: 348 F.3d 16) 
pertaining to it were essentially uncontra-
dieted, and an adjudication would expedite 
matters. 
[231 Privileged Communications and 
Confidentiality 311H st=168 
311H 
Privileged 
Communications and 
Confidentiality 
311HIII Attorney-Client Privilege 
311Hk168 k. Waiver of Privilege. 
Most Cited Cases 
(Formerly 410k219(3)) 
Corporation 
reasonably 
interpreted 
governments silence in face of corpora-
tion's repeated assertions of attorney-client 
privilege as acceptance of such reserva-
tions, and therefore corporation's pre-
indictment proffers did not impliedly waive 
attorney-client privilege, particularly when 
governments silence encouraged and al-
lowed disclosures to go forward, and gov-
ernment did not deny that it knew of oft-
repeated privilege reservations. Restate-
ment (Second) of Contracts § 69(1)(a). 
*19 William F. Lee with whom Robert D. 
Keefe, Stephen A. Jonas, Mark D. Selwyn, 
Hale and Don LLP, Richard G. Taranto, 
and Farr & Taranto were on brief, for ap-
pellant. 
James E. Arnold, Trial Attorney, United 
States Department of Justice, with whom 
Michael K. Loucks, Chief, Health Care-
Fraud Unit, and Michael J. Sullivan, 
United States Attorney, were on brief, for 
appellee. 
Before SELYA, LIPEZ and HOWARD, 
Circuit Judges. 
SELYA, Circuit Judge. 
Although the attorney-client privilege 
may be the most venerable of the privileges 
for confidential communications, its ac-
coutrements are not the most clearly delin-
eated. These appeals, which require us to 
answer delicate questions concerning im-
plied waivers of the privilege, bear witness 
to that point. 
The appeals have their genesis in an in-
vestigatory subpoena duces tecum issued 
by a federal grand jury (we use the adject-
ive "investigatory" because no indictments 
have yet eventuated from the grand jury 
probe). The subpoenaed party, a corpora-
tion, refused to produce certain of the re-
quested documents on the ground that they 
were shielded by the attorney-client and 
work-product privileges. The government 
sought to compel production, contending 
that any attendant privilege had been 
waived. The district court, eschewing an 
evidentiary hearing, ordered the corpora-
tion to produce the documents and cited it 
for contempt when it declined to do so. 
These appeals-there are two because the 
corporation filed a notice of appeal after 
the court ordered production of the with-
held documents and another after the court 
adjudged it in contempt-followed. 
After careful consideration, we con-
clude that the record fails to support the 
lower court's finding of a broad subject 
matter waiver. Accordingly, we reverse the 
turnover order and vacate the contempt 
citation. 
I. BACKGROUND 
We start with an abbreviated account of 
the events leading to the turnover order. 
Consistent with the secrecy that typically 
attaches to grand jury matters, see, e.g., 
Fed.R.Crim2. 6(e), these appeals have 
gone forward under an order sealing the 
briefs, the parties' proffers, and other per-
tinent portions of the record. To preserve 
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348 F.3d 16, 62 Fed. R. Evid. Serv. 1032 
(Cite as: 348 F.3d 16) 
that confidentiality, we use fictitious names 
for all affected parties and furnish only 
such background facts as arc necessary to 
provide ambiance. 
In the fall of 1998, XYZ Corporation 
(XYZ) began distributing a neoteric medic-
al device. Soon after distribution began, 
XYZ learned that, on some occasions, the 
device was not functioning properly. It 
conducted an internal investigation and 
sought the advice of outside counsel to de-
termine an appropriate course of action. 
In fairly short order, XYZ made a pre-
liminary decision to withdraw the device 
from the market (at least temporarily). Be-
fore doing so, however, XYZ's existing 
supply agreement obligated it to consult 
with its co-venturer, Smallco. Representat-
ives of the two companies conferred tele-
phonically. The participants in that discus-
sion included two officers of XYZ, outside 
counsel for XYZ (Bernard Barrister), the 
principals of Smallco, and Smallco's*20 
medical advisor.Fm During this conversa-
tion, which we shall hereafter refer to as 
"the call," Barrister advocated XYZ's posi-
tion in the face of strong counter-argu-
ments from the Smallco hierarchs (who 
wished to keep the device on the market). 
Unbeknownst to XYZ, Smallco recorded 
the call. 
FNI. There is some suggestion in 
the record that two other employees 
of XYZ were on the line during the 
call. We need not resolve this un-
certainty as the presence or absence 
of these individuals would not af-
fect our analysis. 
The next days XYZ contacted the Food 
and Drug Administration (the FDA) to dis-
cuss the emerging problems. A dialogue 
ensued. Less than one month after its initial 
Page 7 of 17 
Page 7 
contact with the FDA, XYZ voluntarily 
withdrew the device from the market. 
The Department of Justice got wind of 
what had transpired and commenced an in-
vestigation into the distribution of the 
device. As part of this probe, a federal 
grand jury issued a subpoena requiring 
XYZ to produce an array of documents. 
XYZ withheld certain of the docu-
ments, instead producing privilege logs in-
dexing what had been retained and the 
claims of privilege applicable thereto. As 
early as April of 2001, the government re-
quested XYZ to waive its claims of priv-
ilege. XYZ refused. 
FN2. The grand jury also caused 
subpoenas duces tecum to be served 
on Barrister and Barrister's law 
firm. Those subpoenas are not be-
fore us (although we note parenthet-
ically that neither recipient has sur-
rendered the documents). 
In late 2001, the government obtained a 
tape recording of the call. The government 
thereafter asked XYZ for permission to 
audit the tape. XYZ replied that it would 
not seek to prevent the government from 
listening but admonished that this decision 
should not be viewed as a waiver of any 
privilege protecting other communications. 
The government agreed-in writing-to this 
condition. The investigation continued. 
In February of 2002, federal prosec-
utors met with XYZ's new outside counsel 
to inform XYZ of the direction of their in-
vestigation. Pursuant to the request of a 
government attorney, XYZ's counsel au-
thored two letters responding to concerns 
voiced at the February meeting. Each con-
tained a footnote on the first page stating 
explicitly that the letter should not be con-
strued as a waiver of the attorney-client or 
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348 F.3d 16, 62 Fed. R. Evid. Serv. 1032 
(Cite as: 348 F.3d 16) 
work-product 
privileges." 
Following 
this correspondence, representatives 5t 
XYZ again met with the prosecutors to dis-
cuss the possible indictment of XYZ and/or 
its officers. This meeting took place in 
May of 2002. 
FN3. The language, in its entirety, 
read: 
We submit this letter pursuant to 
Rule 11(eX6) of the Federal Rules 
of Criminal Procedure. This letter 
may not be used as evidence 
against [XYZ] or any subsidiary, 
affiliate, successor or assign, em-
ployee or agent, in any civil or 
criminal proceeding. This letter 
describes certain facts as we un-
derstand them from the record de-
veloped during the Government's 
investigation. It is not intended to, 
and should not be interpreted to, 
constitute admissions on behalf of 
[XYZ] or any related entities or 
persons. It also is not intended, 
and should not be construed; as 
any waiver of the attorney-chent, 
the attorney work product, or any 
other applicable privilege. 
In April of 2003-after persistently re-
questing a voluntary waiver of the attor-
ney-client privilege for two full years-the 
government changed its tune. It repaired to 
the federal district court and filed a motion 
to compel production of the disputed docu-
ments. In its motion, the government ar-
gued in effect that XYZ already had 
waived the attorney-client privilege as *21 
to the most important documents described 
in the subpoena. The motion asserted that, 
during the call, Barrister had given legal 
advice in the presence of third parties and 
had disclosed legal advice previously 
provided to XYZ. In the government's 
Page 8 of 17 
Page 8 
view, this conduct effected a waiver of the 
attorney-client privilege as to all commu-
nications anent the marketing and with-
drawal of the device for a penod extending 
from August 12, 1998 to October 8, 1998. 
As a fallback, the government asseverated 
that XYZ had waived the attorney-client 
privilege by means of the pre-indictment 
presentations made in response to the pro-
secutors' requests. To close the circle, the 
government maintained that the work-
product doctrine, if applicable at all, like-
wise had been waived." 
FN4. In addition, the government 
claimed that the crime-fraud excep-
tion to the attorney-client and work-
product privileges abrogated any 
protections 
that 
had 
not 
been 
waived. Because the district court 
did not reach this claim, we express 
no opinion on it. The government 
remains free, if it so chooses, to re-
assert this claim in the district court. 
The district court, acting ex parte, gran-
ted the motion to compel. In a four-
sentence order, the court ruled that XYZ 
had "waived its attorney-client privilege 
with respect to the subject matter of the 
[call]." When the government moved for 
an expedited hearing to clarify the order 
and XYZ sought reconsideration, the dis-
trict court again acted summarily. Without 
either conducting an evidentiary hearing or 
entertaining argument, it ruled ore sponge 
that XYZ's waiver of the attorney-client 
privilege applied both retrospectively (i.e., 
to communications before the call relating 
to the "same matter") and prospectively 
(i.e., to communications after the call relat-
ing to the "same matter"). 
In its bench decision, the district court 
went well beyond the three-month waiver 
window envisioned by the government; it 
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348 F.3d 16, 62 Fed. R. Evid. Serv. 1032 
(Cite as: 348 F.3d 16) 
declared, in effect, that the waiver was to 
operate without limit of time (indeed, the 
court notedi as to future communications, 
that the waiver would have effect "so long 
as people are talking about that same sub-
ject," and might apply up to the time of tri-
al). The court exempted from the waiver 
any attorney-client communications about 
the waiver issue itself and provided guid-
ance as to the scope of the waiver by refer-
ring to the "doctnne of completeness." The 
court declined to resolve any additional is-
sues, stating that it would cross those 
bridges as the need arose. 
[1] Notwithstanding the district court's 
order, XYZ refused to produce the docu-
ments. The district court held the corpora-
tion in contempt (thus brushing aside? inter 
alia, its claim of a work-product privilege), 
PM 
but 
stayed 
further 
proceedings 
pending appellate review. We have juris-
diction over the ensuing appeals because 
XYZ subjected itself to a citation for con-
tempt. See In re Grand Jury Subpoenas, 
123 F.3d 695, 696-97 (1st Cir.1997). 
FN5. This implied dismissal of the 
work-product privilege was fully 
consistent with comments made by 
the court in the course of its earlier 
bench decision. 
II. STANDARD OF REVIEW 
[23[3] On an appeal concerning a claim 
of privilege, the standard of review de-
pends on the pgcise issue being litigated. 
See Cavallaro
. United States, 284 F.
236, 245 (1st 
ir.2002); United States I 
Mass. Inst. of Tech., 129 F.3d 681, 683 (1st 
Cir.1997). We review rulings on questions 
of law de novo, findings of fact for clear 
error, and judgment calls-such as eviden-
tiary determinations-for abuse of discre-
tion. Cavallaro, 284 F.3d at 245. The 
standard of review is not altered by the fact 
Page 9 of 17 
Page 9 
that the district court granted the *22 
)
mo-
tion witho 
much elaboration of its think-
ing. FDIC . Ogden Corp., 202 F.3d 454, 
460 (1st 
ir.2000). "Although a lower 
court's elucidation of its reasoning invari-
ably eases the appellate task, motions often 
are decided summarily.... [W]e are aware 
of no authority that would allow us auto-
matically to vary the standard of review de-
pending on whether a district court has 
taken the time to explain its rationale." Id. 
[4] With these background principles in 
mind, we proceed to the merits. In under-
taking that task, we are mindful that, on the 
facts of this case, the question whether 
XYZ has waived the attorney-client priv-
ilege is govergied by federal common law. 
United States 1 Rakes, 136 F.3d I, 3 (1st 
Cir.I998). 
III. ANALYSIS 
[5][6] Despite a grand jury's vaunted 
right to every man's evidence, it must, nev-
ertheless, vesper a valid claim of privilege. 
United States . Calandra, 414 U.S. 338, 
346, 94 S.Ct. 13, 38 L.Ed.2d 561 (1974). 
But the party who invokes the privilege 
bears the burden of establishing that it ap-
plies to the communications at issue and 
that it 
not been waived. See State of 
Maine . United States Dept of the Interi-
or, 29 F.3d 60, 71 (1st Cir.2002); United 
States 
Bollin, 264 F.3d 391, 412 (4th 
ar.2 
). Thus, XYZ must carry the 
devoir of persuasion here. 
[71[8] The attorney-client privilege is 
well-established and its rationale straight-
forward. By safeguarding communications 
between client and lawyer, the privilege 
encourages full and free discussion, better 
enabling the client to conform his conduct 
to the dictates of the law and to present le-
gitimate claims and dt enses
f
 if litigation 
ensues. See Upjohn Co. I United States, 
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• 
Page I 0 of 17 
348 F.3d 16, 62 Fed. R. Evid. Serv. 1032 
(Cite as: 348 F.3d 16) 
449 U.S. 383, 389, 101 S.Ct. 677, 66 
L.Ed.2d 584 (1981). Still, the privilege is 
not limitless, and cowls must take care to 
apply it only to the extent necessary to 
achieve its underlying goals. In re Grand 
Jury Subpoena (Custodian of Records, 
Newparent, Inc.), 274 F.3d 563, 571 (1st 
Cir.2001). In other words, the attorney-cli-
ent privilege must be narrowly construed 
because it comes with substantial costs and 
stands as an obstacle of so 
to the search 
for truth. See United State Nixon, 418 
U.S. 683, 709-10, 94 S. . 3090, 41 
L.Ed.2d 1039 (1974). 
[91[101 The dimensions of the privilege 
itself are reasonably well honed. The priv-
ilege protects only those communications 
that are confidential and are made for the 
purpose of seeking or receiving legal ad-
vice. See Rollin, 264 F.3d at 412; see also 
8 John Henry Wigmore, Evidence § 2292, 
at 554 (John T. McNaughton ed. 1961). 
The idea that the attorney-client privilege 
may be waived is a direct outgrowth of this 
well-established construction. When other-
wise privileged communications are dis-
closed to a third party, the disclosure des-
troys the confidentiality upon which the 
privilege is premised. See 2 Paul R. Rice, 
Attorney-Client Privilege in the U.S. § 
9:79, at 357 (2d ed. 1999). 
[11] Waivers come in various sizes and 
shapes. The easy cases tend to be those 
express waiver. See, e.g., United States 
Lussier, 71 F.
 456, 462 (2d Cir.199 ; 
i
United States 
Kingston, 97 F.2d 48 , 
490 (10th Cir. 992); Catino . Travelers 
Ins. 
Co., 
136 
F.R.D. 
5 4, 
536-37 
(D.Mass.1991). The more difficult cases 
tend to involve implied waivers. While it is 
generally accepted that conduct can serve 
to waive the attorney-client privilege by 
implication, see, e.g., Jack B. Weinstein & 
Page 10 
Margaret A. Berger Weinstein's Federal 
Evidence § 503.41 (Joseph M. McLaughlin 
ed.1997) (collecting cases), the case law 
does not offer much assistance as to how 
*23 broadly such implied waivers sweep. 
Like most courts, this court has yet to de-
velop a jurisprudence clarifying the scope 
gf such implied waivers. See United States 
Desir, 273 F.3d 39, 45 (1st Cir.2001). 
[12][13] In approaching these un-
answered questions, we start with the unar-
guable proposition that the attorney-client 
privilege is highly valued. Accordingly, 
courts should be cautious about finding im-
plied waivers. See In re Grand Jury Pro-
ceedings, 219 F.3d 175, 186 (2d Cir.2000). 
Claims of implied waiver must be evalu-
ated in light of principles of logic and fair-
ness. See 2 Rice, supra § 9:79, at 357. That 
evaluation demands a fastidious sifting of 
the facts and a careful weighing of the cir-
cumstances. Desir, 273 F.3d at 45-46. Con-
sidering the need for this precise, fact-
specific tamisage, it is not surprising that 
the case law reveals few genuine instances 
of implied waiver. See 8 Wigmore, supra § 
2327, at 635. 
A. The Call. 
[14] With these considerations in mind, 
we turn first to the government's contention 
that XYZ impliedly waived the attorney-cli-
ent privilege when it "sought, obtained, 
and discussed legal advice" from Barrister 
in the presence of outsiders. Appellees Br. 
at 26. The district court not only found 
such a waiver but also concluded that it ex-
tended, without limit of time, to all past 
and future communications on the subject 
matters discussed during the call. We think 
that the court erred as a matter of law in 
making these determinations. 
[15][16] For the attorney-client priv-
ilege to attach to a communication, it must 
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Page 11 of 17 
348 F.3d 16, 62 Fed. R. Evid. Serv. 1032 
(Cite as: 348 F.3d 16) 
have been made in confidence and for the 
purpose of securing or conveying legal ad-
vice. See Cavallaro, 284 F.3d at 245; see 
also 8 Wigmore, supra § 2292, at 554. The 
privilege evaporates the moment that con-
fidentiality ceases to exist. With isthmian 
exceptions not pertinent here, the presence 
of third parties is sufficient to undermine 
the needed confidentiality. See 8 Wigmore, 
supra § 2311, at 601-03 & nn. 6-8 
(collecting cases). So here: XYZ knew that 
third parties-representatives of Smallco-
were participating in the call. Thus, it 
could not have had any expectation of con-
fidentiality as to matters discussed therein. 
The lack of such an expectation shattered 
the necessary confidentiality. See In re San 
Juan Dupont Plaza Hotel Fire Litig., 859 
F.2d 1007, 1016 n. 6 (1st Cir.1988) ( 
"Absent an expectation of confidentiality, 
none accrues."). 
The short of it is that Barrister, regard-
less of his professional relationship with 
XYZ, did not provide confidential advice 
during the call but, rather, merely helped to 
advocate XYZ's position to its co-venturer. 
Consequently, the communications made 
during the call were not confidential (and, 
therefore, not subject to a colorable claim 
of privilege). 
[17] The fact that no privilege attached 
to the call brings the government's waiver 
argument into sharper focus. It is crystal 
clear that any previously privileged inform-
ation actually revealed during the call lost 
any eneer of privilege. See, e.g., von Bu-
low . von Bulow (In re von Bulow), 828 
F.2d 4, 102-03 (2d Cir.1987); In re Sealed 
Case, 
676 
F.2d 
793, 
817-18 
(D.C.Cir.1982). XYZ does not contest the 
occurrence of such a waiver (indeed, it 
never listed the call on its privilege log). 
Rather, the bone of contention is whether 
Page 11 
that waiver had a ripple effect, i.e., whether 
it reached anything beyond that which was 
actually disclosed. We think not. 
[18] There was no express waiver, so 
the question is one of implied waiver. It is 
well accepted that waivers by implication 
can sometimes extend beyond the matter 
*24 actually revealed. See, e.g., In re 
Grand Jury Proceeding, 219 F.3d at 
182-83; Sedco Intl, S.A. 
Cory, 683 F.2d 
1201, 1206 (8th Cir.19 ). Such waivers 
are almost invariably premised on fairness 
concerns. See von Bulow, 828 F.2d at 
101-03. As one respected treatise explains, 
"[t]he courts have identified a common de-
nominator in waiver by implication: in 
each case, the party asserting the privilege 
placed protected information in issue for 
personal benefit through some affirmative 
act, and the court found that to allow the 
privilege to protect against disclosure of 
that information" would have been unfair 
to the opposing party. 3 Weinstein, supra § 
503.41[1]See also Sedco, 683 F.2d at 
1206 (noting that courts have found waiver 
by implication when a client (i) testifies 
concerning portions of an attorney-client 
communication, (ii) places the attorney-cli-
ent relationship itself at issue, or (iii) as-
serts reliance on an attorney's advice as an 
element of a claim or defense). 
A paradigmatic example of this phe-
nomenon is a case involving an advice of 
counsel defense. When such a defense is 
raised, the pleader puts the nature of its 
lawyer's advice squarely in issue, and, thus, 
communications embodying the subject 
matter of the advice typically jo9se protec-
tion. See, e.g., United States 
Bilzerian, 
926 F.2d 1285, 1292 (2d Cir.1 I). Imply-
ing a subject matter waiver in such a case 
ensures fairness because it disables litig-
ants from using the attorney-client priv-
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348 F.3d 16, 62 Fed. R. Evid. Serv. 1032 
(Cite as: 348 F.3d 16) 
ilege as both a sword and a shield. Were 
the law otherwise, the client could select-
ively disclose fragments helpful to its 
cause, entomb other (unhelpful) fragments, 
and in that way kidnap the truth-seeking 
process. 
[19] Virtually every reported instance 
of an implied waiver extending to an entire 
subject matter involves a judicial disclos-
ure, that ist a disclosure made in the course 
of a judicial proceeding. See von Bulow, 
828 F.2d at 103 (collecting cases). This 
uniformity is not mere happenstance; it ex-
ists because such a limitation makes emin-
ently good sense. Accordingly, we hold, as 
a matter of first impression in this circuit, 
that the extrajudicial disclosure of attor-
ney-client communications, not thereafter 
used by the client to gain adversarial ad-
vantage in judicial proceedings, cannot 
work an implied waiver of all confidential 
communications on the same subject mat-
ter. Accord von Bulow, 82$ F.2d at 102-03; 
Yankee Atomic Elec. Co. I. United States, 
54 Fed. Cl. 306, 316 (2002). 
The rationale behind our holding is 
self-evident. When an attorney participates 
in an extrajudicial meeting or negotiation, 
his participation alone does not justify im-
plying a broad subject matter waiver of the 
attorney-client privilege. There is a qualit-
ative difference between offering testi-
mony at trial or asserting an advice of 
counsel defense in litigation, on the one 
hand, and engaging in negotiations with 
business associates, on the other hand. In 
the former setting, the likelihood of preju-
dice looms: once a litigant chooses to put 
privileged communications at issue, only 
the revelation of all related exchanges will 
allow the truth-seeking process to function 
unimpeded. In the latter scenario, however, 
such concerns are absent. The party has in-
Page 12 
troduced its lawyer into the negotiations, 
but that act, in and of itself, does nothing to 
cause prejudice to the opposition or to sub-
vert the truth-seeking process. Further-
more, a rule that would allow broad subject 
matter waivers to be implied from such 
communications would provide perverse 
incentives: parties would leave attorneys 
out of commercial negotiations for fear that 
their inclusion would later force wholesale 
disclosure of confidential information. This 
would strike at the heart of the attorney-cli-
ent relationship-and *25 would do so des-
pite the absence of any eclipsing reason for 
the implication of a waiver. Where a party 
has not thrust a partial disclosure into on-
going litigation, fairness concerns neither 
require nor permit massive breaching of 
the attorney-client privilege." See In re 
Grand Jury Proceedings, 219 F.3d at 
188-89 (finding no broad waiver when dis-
closure occurred in grand jury testimony 
and government did not show sufficient 
prejudice). 
FN6. Nothing in this opinion is in-
tended to suggest that extrajudicial 
disclosures can never work an im-
plied waiver of anything beyond 
that which actually was disclosed. 
But such cases will be rare, and the 
scope of any ensuing waiver will be 
narrow. See von Bulow, 828 F.2d at 
102 n. 1. For today, it suffices that 
the government has neither argued 
for a narrow waiver nor identified 
any particular document to which 
such a waive! might extend. See 
United States . Zannino, 895 F.2d 
1, 17 (1st Cir. 990) (explaining that 
arguments not made in • a party's 
bnefs need not be considered). 
120] Viewed against this backdrop, the 
district court's turnover order cannot be 
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348 F.3d 16, 62 Fed. R. Evid. Serv. 1032 
(Cite as: 348 F.3d 16) 
sustained. Although plotting the precise 
line that separates judicial disclosures from 
extrajudicial disclosures sometimes can be 
difficult, no such difficulties are presented 
here. The call took place entirely outside 
the judicial context. The parties to it were 
co-venturers bent on ironing out wrinkles 
and reaching a joint business decision. Giv-
en these facts, it would be fanciful to sug-
gest that the disclosures cited by the gov-
ernment were made in anticipation of litig-
ation. 
That gets the grease from the goose. 
Because the call was plainly extrajudicial, 
the district court erred in using it as a ful-
crum for the implication of a broad subject 
matter waiver of the attorney-client priv-
ilege. See von Bulow, $28 F.2d at 103; 
Electro Scientific Indus. 
Gen. Scanning, 
Inc., 
175 
F.R.D. 
539, 
54344 
(N.D.Ca1.1997). 
[21] The government argues that even 
extrajudicial disclosures should be given 
broad scope when the waiving party seeks 
later to use that disclosure to its advantage. 
We agree in part: if confidential informa-
tion is revealed in an extrajudicial context 
and later reused in a judicial setting, the 
circumstances of the initial disclosure will 
not immunize the client against a claim of 
waiver. See Electro Scientific, 175 F.R.D. 
at 544 (explaining that a past extrajudicial 
disclosure will not cause any prejudice in 
subsequent litigation as long as the disclos-
ing party "does not try to use [the disclot 
ure] in this litigation"); cf. United States 
Workman, 138 F.3d 1261, 1263-64 (8 
Cir.1998) (finding subject matter waiver 
after client placed attorney's advice in issue 
in court case). The key is that the sub-
sequent disclosure, on its own, would suf-
fice to waive the privilege. Here, however, 
XYZ has not made use of the call in any 
Page 13 
judicial proceeding.m 
FN7. To the extent that the govern-
ment implies that XYZ used the call 
in its pre-indictment proffers, that 
argument fails for the reasons. dis-
cussed in Part III(B), infra. 
At the risk of carting coal to Newcastle, 
we add that a prospective waiver will very 
rarely be warranted in extrajudicial disclos-
ure cases. Courts have generally allowed 
prospective waivers in discrete and limited 
situations, almost invariably involving ad-
vice of counsel defe 
s. See, e.
) se
g., Minn. 
Specialty Crops, Inc. . Minn. Wild Hock7
Club, 210 F.R.D1  67 , 679 (D.Minn.2002 ; 
Chiron Corp. 
. Genentech, Inc., 1 9 
F.Supp.2d 118 , 1187 
(E.D.Ca1.2001). 
Every case the government cites in support 
of the district court's imposition of a pro-
spective waiver involves precisely this 
scenario. See Minn. Specialty Crops, 210 
F.R.D. at 679 (finding a prospective waiver 
effected "by the adoption of [an] advice-of-
*26 counsel defense"); Chiron Corp., 179 
F.Supp.2d at 1188 (same); Gabriel Capital, 
L.P. I. 
Natwest 
Finance, 
Inc., 
No. 
99-Civ.-10488, 2001 WL 1132050, at *1 
(S.D.N.Y. Sept. 21, 2001) (same); Dunhall 
Pharms., Inc. I. Discus Dental, Inc., 994 
F.Supp. 1202, 1209 n. 3 (C.D.Ca1.1998) 
(finding subject matter waiver throughout 
the time period of alleged patent infringe-
ment when putative infringer asserted ad-
vice of counsel defense); see also Glen-
mede Trust Co.!. Thompson, 56 F.3d 476, 
486 (3d Cir.19 5) (finding broad waiver 
i
where advice of counse defense had been 
asserted); Abbott Labs. . Baxter Travenol 
Labs., 
Inc., 
676 
F. upp. 
831, 
832 
(N.D.I11.1987) (same). 
Enforcing a prospective waiver in such 
a case makes sense: once a litigant puts the 
legal advice given to him at issue, the op-
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Page 14 of 17 
348 F.3d 16, 62 Fed. R. Evid. Serv. 1032 
(Cite as: 348 F.3d 16) 
posing party should be entitled to all the in-
formation on that same subject regardless 
of when it was compiled. This ensures that 
a litigant is not able to present only selec-
ted bits of the story and thus distort the 
truth-seeking process. The case at hand is 
not one in which an advice of counsel de-
fense has been asserted-indeed, there is no 
pending proceeding to serve as a vehicle 
for such a defense-and no such ends would 
be served by implying a broad prospective 
waiver. 
B. Presentations to the Government. 
[22] Our odyssey is not yet finished. 
Even though the district court did not reach 
the issue, the government invites us to con-
sider, as an alternative basis on which to 
uphold the turnover order, its argument that 
XYZ's pre-indictment proffers waived the 
T
orney-client privilege. See Intergen N.V. 
Grina, 344 F.3d 134, 142 (1st Cir.2003) 
slip op. at 13] (explaining that the court of 
appeals can affirm a judgment on any 
ground made manifest by the record). The 
parties have briefed this issue, the facts 
pertaining to it are essentially uncontra-
dieted, and an adjudication will expedite 
matters. These factors convince us to ac-
cept the government's invitation. 
Many 
years ago, Justice 
Holmes 
warned that those who deal with the gov-
ernment must turn square x rners. Rock Is-
land, Ark & La. R.R. Co. 
United States, 
254 U.S. 141 143, 41 S. . 55, 65 L.Ed. 
188 (1920). That advice cuts both ways: 
those who deal with the government have a 
right to expect fair treatment in return. The 
principle that the government must turn 
square corners in dealing with its constitu-
ents is dispositive here. 
The facts are these. At the time the 
government filed the motion to compel, it 
had been engaged in discussions with XYZ 
Page 14 
for over two years. During that span, the 
government repeatedly had requested that 
XYZ waive the attorney-client privilege 
vis-à-vis communications concerning the 
device's withdrawal from the market, and 
XYZ steadfastly had refused. When the 
government sought permission to audit the 
tape recording of the call, XYZ agreed on 
the express condition that leave "was not to 
be viewed as a waiver of any applicable 
privilege 
protecting other communica-
tions." The government acceded to this 
condition. 
In February of 2002, government attor-
neys met with XYZ's outside counsel to 
discuss the threatened indictment of the 
corporation and/or its officers. The govern-
ment acknowledges that it solicited a re-
sponse from XYZ in hopes of gaining in-
formation so that an indictment, if one 
eventuated, would be based on a fully in-
formed account of the product-withdrawal 
decision. 
Initially, this solicitation went un-
heeded. In late April, however, the govern-
ment wrote to XYZ's outside counsel, 
formally identifying the corporation as a 
target of *27 the grand jury investigation. 
That letter apparently got XYZ's attention. 
The next month, its counsel responded to 
the government's earlier request. This 
epistle, dated May 10, 2002, began with a 
clear and explicit statement, quoted supra 
note 3 
that nothing contained therein 
should be deemed a waiver of the attorney-
client privilege. The letter set forth various 
reasons why the government should forgo 
an indictment. It contained only one glan-
cing mention of an attorney-client commu-
nication-a reference to the call (a commu-
nication to which the attorney-client priv-
ilege never attached). In all events, the 
government never replied either to this let-
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Page 15 of 17 
348 F.3d 16, 62 Fed. R. Evid. Serv. 1032 
(Cite as: 348 F.3d 16) 
ter or to the privilege reservation contained 
therein. 
The May 10 letter advised the prosec-
utors that XYZ's counsel would be sending 
additional material within the next few 
weeks in order to complete the response 
that the government had solicited As 
promised, XYZ's counsel sent a follow-up 
letter eleven days later. This missive con-
tained the same privilege reservation (again 
conspicuously displayed on the first page). 
In the body of the letter, counsel discussed 
communications between XYZ and the 
FDA during September of 1998 (some of 
which involved Barrister). Once again, the 
privilege reservation evoked no response. 
Both of counsel's letters referred to an 
anticipated meeting with the government. 
That meeting occurred on May 22, 2002. 
As the first order of business, XYZ's coun-
sel renewed the privilege reservation, stat-
ing that any disclosures made during the 
meeting should not be interpreted as waiv-
ing the attorney-client privilege. The. gov-
ernment's representatives received this an-
nouncement 
in 
stony 
silence. 
XYZ's 
presentation proved fruitless and the col-
loquy between the parties apparently 
ground to a halt. That was the state of af-
fairs when the government endeavored to 
subpoena the disputed documents. 
[23] The government now claims that 
these presentations resulted in a waiver of 
the attorney-client privilege as to the sub-
jects discussed therein. But the circum-
stances, and particularly the government's 
own conduct, belie that claim. XYZ was 
careful to condition each and every disclos-
ure on a clearly stated privilege reserva-
tion. The government did not raise the 
slightest question when these reservations 
were stated, but, rather, kept the dialogue 
going and invited additional- disclosures. In 
Page 15 
the circumstances of this case, we think 
that XYZ reasonably interpreted the 
9c1
gov-
ernment's silence as an a 
ptanee of- the 
reservations. CI McGurn . Bell Micro-
prods., Inc., 284 F.3d 86, 
(1st Cir.2002) 
(stating that silence can serve as accept-
ance of a condition when the offeree, des-
pite having a reasonable opportunity to re-
ject the condition, takes the benefit of the 
offer without saying anything); Restate-
ment (Second) of Contracts § 69(1Xa) 
(similar). 
To be sure, the government now says 
that XYZ, if it wanted to guarantee preser-
vation of the attorney-client privilege, 
should have secured a written agreement to 
that effect. In the absence of such a step, 
the government suggests, the unilaterally 
imposed privilege reservation was impuis-
sant. This argument lacks force. 
As we have said, in some cases silence 
can be the basis of acceptance. See, e.g., 
McGurn, 284 F.3d at 90. In this case, the 
undisputed facts show that the government 
knew of XYZ's intention to operate under a 
privilege reservation from the time that it 
first secured a tape recording of the call. It 
unquestionably accepted the reservation at 
that time. XYZ then repeated the reserva-
tion on the occasion of each of the three 
succeeding 
pre-indictment 
presentations 
*28 (two written and one oral). The gov-
ernment voiced no objection to the priv-
ilege reservation at any of these times. Its 
silence encouraged (indeed, allowed) the 
disclosures to go forward. 
Here, moreover, the government does 
not deny that it knew of the oft-repeated 
privilege reservations. Hence, the govern-
ment's long delay. in raising a cFaim of 
it
waiver is itself an indication of s h know-
ledge. See Akamai Techs., Inc. . Digital 
Island, Inc., No. C-00-3509CW, 002 1/1/L 
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Page 16 
348 F.3d 16, 62 Fed. R. Evid. Serv. 1032 
(Cite as: 348 F.3d 16) 
1285126, at *6 (N.D.Cal. May 30, 2002) 
(finding privilege reservation valid, in part 
because opposition waited eight months 
after supposed waiver before seeking to 
compel production of documents). In turn, 
the government's ready acceptance of the 
proffers' 
benefits, 
notwithstanding 
its 
knowledge of the privilege reservations, 
makes its currenk position untenable. CI 3 
A's Towing Co. 
P & A. Well Serv., Inc., 
642 F.2d 756,58 n. 3 (5th Cir.1981) 
(finding ratification where delay in repudi-
ating was long and failure to repudiate was 
"accompanied by acts indicating approval 
... such as receiving and retaining the bene-
fits"). 
In short, the privilege reservations were 
not unilaterally imposed, but, rather, were 
accepted by the government's consistent 
course of conduct. That course of conduct 
signaled clearly the government's intention 
to acquiesce in the privilege reservations. 
We conclude, therefore, that the reserva-
tions were fully effective here. Having 
lured XYZ into making a series of proffers, 
the government cannot now be allowed to 
contradict that reasonable understanding by 
arguing, after the fact, that it never acced 
to the reservations. CI United States 
Tierney, 760 F.2d 382, 388 (1st Cir.198 
("Having one's cake and eating it, too, is 
not in fashion in this circuit."). 
Although we ground this result in 
equitable principles, it also comports with 
sound policy. Arm's-length negotiations 
between 
the government 
and 
private 
parties, in advance of an indictment, aid the 
truth-seeking process. Such negotiations 
are to everybody's advantage. They give 
potential defendants an opportunity to ex-
plain away suspicious circumstances, give 
the government an opportunity to avoid 
embarrassing and wasteful mistakes, and 
give the public a greater likelihood of a just 
result. Requiring the government to turn 
square corners in such negotiations will 
make potential defendants more willing to 
deal with the government in the future. 
Conversely, refusing to hold the govern-
ment to such a standard will send a signal 
to future litigants to negotiate with the gov-
ernment only at their peril. That is not a 
message that we wish to send-nor is it one 
that would serve the government's in-
terests. 
In a perfect world, of course, XYZ 
would have secured a written acknowledg-
ment of its privilege reservation in ad-
vance of each and every disclosure. But 
XYZ did secure one such written acknow-
ledgment, and its failure to do so on sub-
sequent occasions is clearly outweighed by 
two facts: (i) it repeatedly set forth its posi-
tion, and (h) the government failed to ques-
tion the privilege reservation in a timely 
manner. Under the circumstances of this 
case, we find that the proffers were made 
in the course of ongoing plea negotiations; 
that XYZ explicitly reserved all claims of 
attorney-client 
privilege 
with 
respect 
thereto; that the government effectively ac-
quiesced in these reservations; and that the 
government is bound by them. Con-
sequently, XYZ reserved the attorney-cli-
ent prhilege by means of its pre-
indictment presentations. 
IV. CONCLUSION 
*29 We need go go further."' We 
hold that XYZ's extrajudicial disclosure 
did not give rise, by implication, to a broad 
subject matter waiver. We further hold that 
the government's seeming acquiescence in 
XYZ's privilege reservations precludes any 
claim that XYZ's pre-indictment presenta-
tions worked a waiver of any applicable 
privilege. Accordingly, we reverse the or-
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