Lawyers for Roger Clemens today won access to information the law firm DLA Piper wanted to keep secret from the defense team on the ground the attorney work product doctrine shielded the documents from disclosure.
Judge Reggie Walton of Washington federal district court said Clemens' defense lawyers are entitled to "pierce the cloak of protection" that might otherwise protect DLA Piper interview notes and memos prepared when the firm investigated the use of performance enhancing drugs in Major League Baseball.
Walton, however, said Clemens’ defense team, led by Russell Hardin and Michael Attanasio of Cooley, is not entitled to all of the information DLA prepared during its investigation—dubbed the “Mitchell Commission” after former chairman and Senate majority leader George Mitchell.
The judge said Clemens will receive every statement that two key witnesses—Brian McNamee and Kirk Radomski—made that directly pertains to Clemens. Other information in the DLA Piper material will be redacted, Walton ordered (PDF).
“The court believes that this approach properly balances the interests of DLA Piper in protecting its work product to the fullest extent possible, while also allowing the defendant to access the information that he needs to present his defense,” Walton said.
Clemens’ attorneys issued a subpoena to DLA Piper demanding interview notes and memos pertaining to Jose Canseco, Radomski and McNamee, Clemens’ former trainer. In March, DLA Piper asked Walton to quash the subpoena, saying it intruded on the protection accorded the work product of attorneys.
Earlier this month, Walton met in chambers with a group of DLA Piper lawyers to determine the level of protection to give to the firm’s documents. DLA Piper partners David Clarke, Charles Scheeler, John Clarke Jr. and associate Ellen Ginsberg spoke with the judge in the ex parte hearing. Scheeler, who practices in white-collar defense in the firm's Baltimore office, was the lead investigator under Mitchell.
“The challenge for the court here is determining what constitutes ‘fact’ versus ‘opinion’ work product,” Walton wrote. “It is well understood in the law that ‘the task of drawing a line between what is fact and what is opinion can at times be frustrating and perplexing.’”
Walton said “for the most part” DLA Piper’s notes from initial interviews with Radomski and McNamee constitute “fact” work product and do not deserve the heightened protection given to “opinion” documents. The interviews, the judge said, were general in nature, prosecutors participated in the meetings and DLA Piper made a “substantial” effort to confirm the accuracy of various statements.
“Taken together, these factors persuade the court that the recorded remarks of Mr. Radomski and Mr. McNamee contained in these notes and memoranda do not reflect the mental impressions, thought processes, legal strategy or personal assessments of DLA Piper,” Walton said. “In fact, they accurately depict the witnesses’ own words.”
The judge noted DLA Piper “was inhibited in preparing for the initial interviews” because the firm was not made aware of the identity of the witnesses until shortly before the meetings were conducted. “Given this limitation, the court cannot envision how DLA Piper could have developed a focused line of inquiry for either of these two witnesses,” the judge said.
Clemens was charged with perjury and other crimes tied to testimony he gave in February 2008 to the House Committee on Oversight and Government Reform. His trial is scheduled to begin in July.
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