The lawyers for Roger Clemens accuse the law firm DLA Piper of unfairly clinging to documents that the attorneys claim are critical to the former baseball star's defense on obstruction and perjury charges in Washington federal district court.
At the center of the subpoena dispute is the work DLA Piper attorneys performed in investigating and publishing a report on the use of performance enhancing drugs in Major League Baseball. Former DLA Piper chairman George Mitchell was the lead attorney for the firm in the inquiry.
Last month, DLA Piper lawyers said in court papers in the Clemens case that the attorney work product doctrine protects much of the information that the defense lawyers maintain they are entitled to review. Clemens’ lawyers, including Russell Hardin Jr. of Houston, served a subpoena on the firm in February.
In papers (PDF) filed last night, Clemens’ lawyers said DLA Piper had complete independence from Major League Baseball, its player’s association and from Congress. DLA Piper published its report in December 2007, naming 89 baseball players alleged to have used steroids or other performance-enhancing drugs.
“Yet now, when one of those players is being prosecuted for contradicting under oath DLA Piper’s finding, and, by implication, the accuracy of the report, the authors of the report want to conceal information about critical witnesses based on the ‘attorney work product doctrine,’” Clemens’ lawyers said. “This case may be about a baseball player, but that is no reason for DLA Piper to treat it like a game.”
The Clemens defense team, which also includes Michael Attanasio of Cooley LLP in San Diego, demanded that DLA Piper produce notes, interview summaries and memos related to three people: Jose Canseco, Brian McNamee and Kirk Radomski. DLA Piper wants to hold onto documents that include an e-mail summarizing a telephone call with Canseco, eight sets of handwritten and typed notes and ten memos.
In support of the subpoena, Clemens’ attorneys said DLA Piper was not serving as any party’s representative when the documents were created and that the documents were not prepared in anticipation of litigation or for trial.
Clemens’ attorneys argue DLA Piper had no “adversary” when it generated the documents and therefore cannot shield them under a “zone of privacy” position. DLA Piper and Major League Baseball “intended to disclose the details of the investigation to the public long before it was completed,” Clemens’ defense attorneys said yesterday.
Hardin and Attanasio said DLA Piper documents “almost certainly will contain exculpatory facts and information” and may help Clemens impeach key witnesses at trial. The defense attorneys said they are concerned that prosecutors “outsourced” constitutional duties to DLA Piper.
Clemens, who was indicted last August, isn’t just fighting DLA Piper for documents. His attorneys also want the House of Representatives oversight committee to turn over information related to the February 2008 congressional hearing on the Mitchell Report.
The committee has refused to turn over any documents, citing the general immunity that legislative activity enjoys from the speech or debate clause. Clemens’ attorneys said in court papers (PDF) filed last night that the protection is not absolute.
“The speech or debate clause has finite limits and does not confer an absolute privilege on Congress to withhold information from a criminal proceeding,” Clemens’ attorneys said. “The primary purpose of the clause is to preclude civil or criminal suits that seek to hold legislators liable for legislative activities.”
Judge Reggie Walton of U.S. District Court for the District of Columbia said DLA Piper and the House will have until April 15 to respond to Clemens’ lawyers concerns. Walton set a hearing for April 21.
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