The federal judge in the Roger Clemens perjury case in Washington said he will review in chambers interview notes and memos that the law firm DLA Piper has refused to disclose to the former baseball pitcher’s defense team.
DLA Piper, which investigated the use of performance-enhancing drugs in Major League Baseball, has held onto 20 documents that the firm maintains the attorney work product doctrine protects from publication.
Clemens’ lawyers, led by Russell Hardin Jr. of Houston, want to explore potential inconsistencies in statements from the government’s lead witness, Brian McNamee, a one-time trainer for Clemens. Hardin said the DLA Piper documents go to the core of the defense theory of the case.
In Washington federal district court this afternoon, Hardin said McNamee suffers from “congenital liar’s syndrome,” and has presented a “series of lies” to investigators and prosecutors. Clemens’ attorneys said McNamee’s ever-changing story will be a central part of the defense case. Clemens did not attend today’s hearing.
DLA Piper partner David Clarke Jr., who represented the firm today, said the 20 documents that Clemens’ attorneys want are classic work product that should not be produced. Clarke said the documents were prepared in anticipation of litigation and that the firm did not waive its privilege when it published a report, named after former DLA chairman George Mitchell.
Clemens’ attorneys demanded in a subpoena in February copies of the firm’s notes and memos tied to interviews with McNamee, former slugger Jose Canseco and Kirk Radomski, a former Mets employee who pleaded guilty in 2007 to steroids charges. Last month, DLA Piper moved to quash the subpoena.
Hardin said in court today the Clemens team has no other way to get the information than from DLA Piper itself. Federal investigators and prosecutors sat in on the DLA Piper interviews with McNamee but did not take notes, Hardin said. The lawyer questioned why “none of the pens and pencils” of the federal government were working when DLA Piper lawyers interviewed McNamee over several months in 2007.
Judge Reggie Walton of U.S. District Court for the District of Columbia said he will review the documents in chambers to determine whether the information constitutes attorney opinion—which would favor keeping the material secret—or fact. He wants to see the extent to which the DLA Piper documents are verbatim observations of witness statements.
Walton said he would later decide, at trial, whether the documents should be produced to the Clemens defense team. Clemens’ lawyers wanted immediate access to the information. Trial is set for July.
Walton today granted a request from the House of Representatives to quash the Clemens subpoena targeting information from the oversight committee.
William Pittard of the House general counsel’s office argued this afternoon that an “iron gate” exists around the committee, shielding its investigative files from outside intrusion. Clemens is charged with lying to the committee during testimony in February 2008.
A lawyer for Clemens, Michael Attanasio of Cooley, said the protection accorded to documents prepared in the course of legislative activity is not absolute. The hearing in February 2008 at which Clemens testified about his alleged drug use was not legitimate legislative activity, Clemens’ attorneys said in court today.