Updated 5:24 p.m.
DLA Piper lawyers today asked a federal judge in Washington to quash a subpoena served on the firm seeking documents in the criminal prosecution of former baseball star Roger Clemens, who is charged with lying to Congress about his alleged use of performance enhancing drugs.
Lawyers representing the firm, including DLA Piper partner David Clarke Jr. in Washington, said in a motion to quash filed in Washington’s federal trial court that Clemens’ attorneys have demanded 20 documents that are protected by the attorney work product doctrine. DLA Piper's motion is here.
Clemens’ lawyers, including Russell Hardin Jr. of Houston, Texas, served a subpoena on DLA in February, demanding documents related to former Senator George Mitchell’s report in 2007 documenting the use of performance enhancing drugs in Major League Baseball. At the time, Mitchell was the DLA Piper chairman. MLB officials had asked Mitchell, and DLA, to investigate allegations of steroid and other drug use in baseball.
Clemens’ defense lawyers want the firm to produce notes that DLA Piper lawyers made during interviews of three witnesses—Jose Canseco, Brian McNamee and Kirk Radomski. The defense attorneys also want DLA memos describing what the attorneys believed was important from the interviews.
Responding today to the subpoena, DLA Piper’s Clarke, who practices in corporate and securities law, said the firm produced the documents in anticipation of litigation and “they are ‘opinion’ work product of the sort that is virtually immune from production.”
Clemens, Clarke said, “has not made, and cannot make, the showing required to compel their production.”
In court papers, Clarke identified six DLA Piper lawyers as having worked with Mitchell on the investigation and publication of his report. The attorneys include partners Charles Scheeler, John Clarke Jr. and Brett Ingerman, in addition to associate Ellen Ginsberg.
Mitchell designated Scheeler, who practices in the firm’s Baltimore office in commercial litigation, internal investigations and white-collar criminal defense, to lead the investigation on a day to day basis.
Scheeler has declined requests for comment. Clarke also has not returned messages seeking comment.
Judge Reggie Walton of U.S. District Court for the District of Columbia said Clemens’ lawyers have until April 6 to respond to DLA Piper’s motion to quash the subpoena. In December, Hardin predicted a document fight was looming in the case.
This afternoon, lawyers for the House Committee on Oversight and Government Reform filed court papers urging Walton to quash the subpoena Clemens' attorneys served on the committee.
Lawyers for the committee, including William Pittard, an assistant counsel in the House Office of General Counsel, said the requested documents are protected by the speech or debate clause. The clause generally protects from production legislative documents and testimony.
"This constitutional protection includes, among other things, a privilege against the compelled disclosure of documents created, reviewed, or obtained by a committee in the course of a congressional investigation," House lawyers said in court papers.
The House lawyers said Clemens has demanded documents "gathered for a legitimate legislative purpose: an investigation of the abuse of illegal performance-enhancing substances by Major League Baseball players, and the impact of that abuse on young Americans who often try to emulate their athletic heroes."