Crime-Fraud, State-Federal

Two rulings about the crime-fraud exception to the attorney-client privilege were recently reversed, by both the Fifth Circuit and Dallas’s Fifth District, in response to mandamus petitions. (This is a cross-post with 600commerce.com.)

• In the Fifth Circuit: “[A]s Boeing argues, the district court clearly erred in finding that Plaintiffs established a prima facie case that the contested documents were subject to the crime-fraud exception. The district court concluded that the contested documents were reasonably connected to the fraud based on one finding only—that the documents sought ‘f[e]ll within the period Boeing admit to hav[ing] knowingly and intentionally committed “fraud” in the DPA. However, a temporal nexus between the contested documents and the fraudulent activity alone is insufficient to satisfy the second element for a prima facie showing that the crime-fraud exception applies.” In re The Boeing Co., No. 21-40190 (July 29, 2021, unpublished).
• In the Fifth District, the Court noted: “[A] determination at the TCPA stage as to a prima facie showing does not automatically translate to a prima facie showing for purposes of application of the crime–fraud exception to the attorney–client privilege. The exception UDF attempts to invoke is for crime–fraud, not crime–tort.” From there, it declined to follow a broad view of the exception defined by another Texas intermediate court, “and note that, notwithstanding certain language in the [relevant] opinion, the El Paso court continues to apply the elements of common-law fraud when determining the applicability of the crime fraud exception, rather than requiring proof of a false statement only.” In re Bass, No. 05-21-00102-CV (July 30, 2021) (mem. op.).