Harry Blackmun

“ We think that deterring the aggressive pursuit of relevant information from third-party sources is not sufficiently central to the policies of the attorney-client privilege to require us to adopt the exclusionary rule urged by respondents. We conclude that the party opposing the privilege may use any nonprivileged evidence in support of its request for in camera review, even if its evidence is not "independent" of the contested communications as the Court of Appeals uses that term. ”

“ Thus, the remaining obstacle to respondents' successful assertion of the privilege is the Government's contention that the recorded attorney-client communications were made in furtherance of a future crime or fraud.
A variety of questions may arise when a party raises the crime-fraud exception. The parties to this case have not been in complete agreement as to which of these questions are presented here. In an effort to clarify the matter, we observe, first, that we need not decide the quantum of proof necessary ultimately to establish the applicability of the crime-fraud exception. ”

“ Because the Court of Appeals employed a rigid independent-evidence requirement which categorically excluded the partial transcripts and the tapes themselves from consideration, we vacate its judgment on this issue and remand the case for further proceedings consistent with this opinion. On remand, the Court of Appeals should consider whether the District Court's refusal to listen to the apes in toto was justified by the manner in which the IRS presented and preserved its request for in camera review. ”

“ In making its determination it is not bound by the rules of evidence except those with respect to privileges." (Emphasis added.) Rule 1101 (c) provides: "The rule with respect to privileges applies at all stages of all actions, cases, and proceedings." Taken together, these Rules might be read to establish that in a summons-enforcement proceeding, attorney-client communications cannot be considered by the district court in making its crime-fraud ruling: to do otherwise, under this view, would be to make the crime-fraud determination without due regard to the existence of the privilege. ”

“ There is no reason to permit opponents of the privilege to engage in groundless fishing expeditions, with the district courts as their unwitting (and perhaps unwilling) agents. Courts of Appeals have suggested that in camera review is available to evaluate claims of crime or fraud only "when justified," In re John Doe Corp., 675 F.2d, at 490, or " [i] n appropriate cases," In re Sealed Case, 219 U.S.App.D.C. 195, 217, 676 F.2d 793, 815 (1982) (opinion of Wright, J.) . ”

“ We begin our analysis by recognizing that disclosure of allegedly privileged materials to the district court for purposes of determining the merits of a claim of privilege does not have the legal effect of terminating the privilege. Indeed, this Court has approved the practice of requiring parties who seek to avoid disclosure of documents to make the documents available for in camera inspection, see Kerr v. ”

“ While the disputed matters were being briefed in Federal District Court, the State Superior Court held a hearing on a motion by Government attorneys seeking access to materials in the Armstrong case for ongoing litigation in Washington, D.C. The transcript of the hearing was made part of the record before the District Court in this case. Regarding the tapes, the Government argued to the Superior Court that the attorney-client conversations on the tapes reflect the planning or commission of a crime or fraud. Tr. ”

“ United States District Court for Northern District of Colo., 426 U.S. 394, 404-405, 96 S.Ct. 2119, 2124-25, 48 L.Ed.2d 725 (1976) , and the practice is well established in the federal courts. See, e.g., In re Antitrust Grand Jury, 805 F.2d 155, 168 (CA6 1986) ; In re Vargas, 723 F.2d 1461, 1467 (CA10 1983) ; United States v. Lawless, 709 F.2d 485, 486, 488 (CA7 1983) ”

“ See, e.g., Maguire & Epstein, Preliminary Questions of Fact in Determining the Admissibility of Evidence, 40 Harv.L.Rev. 392, 400 (criticizing courts insofar as they "have allowed themselves to be led into holding that only a superficial, one-sided showing is allowable on any admissibility controversy") , 414-424 (exploring alternative rules) (1927) ; 21 C. Wright & K. Graham, Federal Practice and Procedure: Evidence § 5052, p. ”