                           NOT FOR PUBLICATION
                                                                           FILED
                    UNITED STATES COURT OF APPEALS
                                                                            JAN 14 2016
                            FOR THE NINTH CIRCUIT
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS



In re: GRAND JURY INVESTIGATION,                 No. 15-50450

                                                 D.C. No. 2:15-cm-01014-UA-1
UNITED STATES OF AMERICA,

              Appellee,                          MEMORANDUM*

 v.

DOE APPELLANTS AND
CORPORATIONS,

              Respondents - Appellants.


                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                     Argued and Submitted December 7, 2015
                              Pasadena, California

Before: GOULD and BERZON, Circuit Judges, and STEEH,** Senior District
Judge.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable George Caram Steeh III, Senior District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.
      This appeal concerns the district court’s order granting the government’s ex

parte motion to compel production of attorney-client documents. In an opinion

filed concurrently with this memorandum disposition, we vacate the order and

remand for the district court to inspect the subpoenaed documents in camera to

determine which specific documents contain communications in furtherance of the

crime-fraud and must be produced. In this memorandum disposition, we affirm

that we have jurisdiction to review this issue, and we affirm the district court’s

conclusion that the government produced sufficient evidence to invoke the crime-

fraud exception to attorney-client privilege.

      1.     We have interlocutory jurisdiction over this appeal under Perlman v.

United States, 247 U.S. 7 (1918), as to the Doe appellants.1 See United States v.

Krane, 625 F.3d 568, 571–73 (9th Cir. 2010). The government’s argument on

appeal that the Does have not established that they were clients “with respect to the

FDA correspondence at issue,” is inconsistent with its allegations in the district

court that the Does controlled the Corporation entities and directed their lawyers to

use false statements to dissuade the FDA from investigating its advertisements. If



      1
        All documents in this matter have been filed under seal to protect the
secrecy of the ongoing grand jury proceedings. The true names of the appellants,
appellant corporations, and their former attorneys are not revealed in this
memorandum.

                                           2
we accepted the government’s premise on appeal that the record does not show

who the clients were, we would be compelled to reverse the district court’s crime-

fraud finding, because the crime-fraud exception requires the government to prove

that “the client harbored an improper purpose”—“it is the client’s knowledge and

intent that are relevant.” In re Napster, Inc. Copyright Litig., 479 F.3d 1078, 1090

(9th Cir. 2007), abrogated in part on other grounds by Mohawk Indus., Inc. v.

Carpenter, 558 U.S. 100 (2009).

      2.     For the reasons given by the district court, we agree that the

government presented sufficient evidence to establish a prima facie case that the

Does sought to use their lawyers “in furtherance of and . . . sufficiently related to

ongoing” crimes, i.e., false statements to and obstruction of the FDA. In re Grand

Jury Proceedings, 87 F.3d 377, 382 (9th Cir. 1996); see 18 U.S.C. § 1001. The

government presented sufficient evidence to establish at least “reasonable cause to

believe,” In re Grand Jury Proceedings, 87 F.3d at 382, that the FDA had

jurisdiction to investigate the misleading advertisements under 21 U.S.C. § 352(q),

whether or not the medical centers were subject to the requirements of 21 U.S.C. §

352(r). Assuming without deciding that the literal-truth defense of Bronston v.

United States, 409 U.S. 352 (1973), applies here, the government presented

sufficient evidence to establish reasonable cause to believe that the Does directed


                                           3
their attorneys to make false statements with the intent to obstruct the FDA

investigation.

      3.     We reject appellants’ argument that the district court committed

reversible error by not independently addressing the work product privilege. Our

decisions have indicated that the crime-fraud exception applies equally to work

product and attorney-client privileges. See, e.g., United States v. Christensen, 801

F.3d 970, 1004 (9th Cir. 2015); In re Grand Jury Proceedings, 867 F.2d 539,

540–41 (9th Cir. 1989); see also In re Grand Jury Proceedings #5 Empanelled

January 28, 2004, 401 F.3d 247, 251–52 (4th Cir. 2005).2

      We AFFIRM the district court’s conclusion that the government established

a prima facie case to invoke the crime-fraud exception.




      2
        All other arguments made by the parties not addressed by this
memorandum or the concurrently-filed opinion have been considered by the panel
and rejected.

                                          4
