United States v. Williams Companies, Inc.

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 19, 2009 Decided April 17, 2009

No. 08-5203

UNITED STATES OF AMERICA,

APPELLEE

THE WILLIAMS COMPANIES, INC.

AND WILLIAMS POWER COMPANY INC.,

APPELLANTS

v.

SCOTT THOMPSON,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:07-mc-00241-RJL)

Andrew S. Tulumello argued the cause for appellants. With

him on the briefs was F. Joseph Warin.

Sangita K. Rao, Attorney, U.S. Department of Justice,

argued the cause for appellee United States of America. With

2

her on the brief were Patty Merkamp Stemler and Robertson T.

Park, Attorneys. Roy W. McLeese III , Assistant U.S. Attorney,

entered an appearance.

Philip T. Inglima argued the cause for appellee Scott

Thompson. With him on the brief was Ann M. Mason.

Before: ROGERS, Circuit Judge, and SILBERMAN and

WILLIAMS, Senior Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: This is a third-party appeal of a

discovery order in a criminal case compelling the government to

produce “all materials disclosed” by the third party pursuant to

its cooperation with federal investigators during a criminal

investigation of the third party and others. Ultimately, the

government agreed to defer prosecution of the third party.

Thereafter several of its former employees, including Scott

Thompson, were indicted. The district court granted

Thompson’s motion to compel production of documents the

third party had produced to the government that would be

material to the preparation of his defense. This court stayed the

order of production. The third party now seeks to enforce its

agreement with the government that the government would hold

the documents in confidence “to the extent possible” in view of

the third-party’s claims of privilege. The district court granted

Thompson’s motion but did not independently assess which

documents were material to his defense. Accordingly, we

remand the case for the district court to make that assessment

and to protect against the public disclosure of material

documents in a manner consistent with Thompson’s right to a

fair trial.

3

I.

This case is part of the fallout of the California energy crisis

that prompted the federal government to examine practices of

certain energy companies, including The Williams Companies

and its subsidiary formerly known as Williams Power Company

(hereinafter collectively “WPC”). In the fall of 2002, WPC’s

trading practices were under investigation by the Commodity

Futures Trading Commission (“CFTC”), the Department of

Justice, and the Federal Energy Regulatory Commission

(“FERC”). In October 2002, WPC announced that it was

“conducting an independent internal review of its trading

activities, including reporting of information regarding natural

gas trades to energy publications.” Alex Goldberg, Esq., Decl.

1, ¶2. The law firm of Gray Cary Ware & Freidenrich LLP

(“Gray Cary”) carried out the internal investigation. In early

November 2002, WPC received a subpoena from the grand jury

in the Northern District of California, demanding production of

information regarding WPC’s trading practices, and WPC

produced some responsive documents. On November 25, 2002,

CFTC issued a subpoena to WPC and by separate letter advised

that WPC was failing to “fully cooperate” with the investigation

by not turning over certain documents and that “full

cooperation” would entail disclosing the results of WPC’s

internal review. Letter from Steven Ringer, Division of

Enforcement, CFTC, to Edward P. Davis, Jr., Esq. and Walter

F. Brown, Jr., Esq., Gray Cary (Nov. 25, 2002).

WPC began producing documents to government

investigators in the spring of 2003. The documents included

attorney notes from interviews of WPC employees, data

analyses and reports of natural gas transaction data developed

under WPC’s attorneys’ supervision, and presentations to

prosecutors by WPC attorneys aimed at “influenc[ing] the

government’s charging decisions.” Goldberg Decl. 3, ¶11.

4

Each disclosure was accompanied by a statement that the

documents were privileged or that WPC was not waiving its

privileges, at least as to other parties and/or other matters. For

example, by letter of April 25, 2003 from its outside counsel to

the Justice Department Antitrust Division, WPC stated:

We expressly reserve and do not waive any privilege

and protection with respect to any other document and

any other subject matter. Further, we expressly reserve

and do not waive any privilege and protection for these

documents as to any other action, investigation, case,

matter, or party. We understand that these [redacted]

will be afforded Rule 6(e) protection under the Federal

Rules of Criminal Procedure, and to the extent possible

you will assist WPC in preserving the confidentiality

of these.

Letter from Edward P. Davis, Jr., Gray Cary, to Keslie Stewart,

Esq., Dep’t of Justice, Antitrust Division (Apr. 25, 2003)

(“Davis Letter of April 25, 2003 ”) (emphasis added).1 On July

29, 2004, the CFTC approved WPC’s offer of settlement

regarding the gas reporting issues, and on February 21, 2006, the

Justice Department executed a Deferred Prosecution Agreement

(“DPA”) under which WPC agreed to “cooperate fully” with

1

See also, e.g., Letter from Edward P. Davis, Jr., Gray Cary,

to Keslie Stewart, Esq., Dep’t of Justice, et al. (Apr. 23, 2003)

(“Moreover, it is also our understanding that production of these notes

will not be considered a waiver of any privilege as to any party other

than the United States, and will not be considered a waiver as to any

other subject or issue.”). See also WPC letters of May 7, 2003; July

14, 2003; and July 23, 2003. WPC has requested CFTC return all

produced documents. See, e.g., Letter from Edward P. Davis, Jr.,

Gray Cary, to Steven Ringer, Esq., CFTC (March 11, 2004). WPC

states in its brief it never produced privileged material to FERC.

5

federal prosecutors “regarding any matter about which [it] has

knowledge . . . including any investigations or prosecutions of

others.” DPA at 2. The DPA provided that cooperation would

include not asserting the attorney-client privilege or work-

product protection as to certain factual documents from the

internal investigation, although WPC reserved its right to assert

the privilege with respect to certain other documents. The

Justice Department acknowledged that WPC’s cooperation was

a factor in the decision to “defer[]” criminal prosecution of

WPC. Id. at 4-5. WPC also agreed to pay a $50,000,000

penalty to the United States Treasury.

On September 28, 2006, Thompson was indicted for

conspiracy, 18 U.S.C. § 371, to commit wire fraud, id. § 1343,

and to manipulate gas prices in violation of the Commodities

Exchange Act, 7 U.S.C. § 13(a)(2), in connection with his

energy trading activities while a WPC employee. Thompson

filed a motion pursuant to, inter alia, Brady v. Maryland, 373

U.S. 83 (1963), and Federal Rule of Criminal Procedure

16(a)(1)(E)(i) to compel the United States to produce

“information that is material to preparing his defense” and that

was provided to the government by WPC. The United States

opposed the motion, stating that WPC had preserved the

protected status of the produced work product and the

government had agreed to these terms in receiving the

documents. WPC filed a separate miscellaneous action

opposing Thompson’s motion. See D.D.C. R. 57.6.2 The

2

D.C. District Court Criminal Rule 57.6 provides:

Any news organization or other interested person,

other than a party or a subpoenaed witness, who seeks relief

relating to any aspect of the proceedings in a criminal case

shall file an application for such relief in the Miscellaneous

Docket of the Court. The application shall include a

6

district court granted Thompson’s motion to compel, and denied

WPC’s application for relief. The district court denied a stay.

Upon WPC’s emergency motion for a stay, this court granted

the stay and expedited the appeal.

II.

On appeal, WPC seeks to enforce its agreement with the

government to maintain the confidentiality of the documents it

produced during the federal investigation of its trading activities.

Specifically, WPC contends that it did not waive its work-

product protection as to any other party, including Thompson,

when it made a limited, one-time disclosure of documents to

federal prosecutors in response to a grand jury subpoena while

the target of a criminal investigation. It further contends

Thompson has failed to demonstrate any need for the documents

because he already has access to the source materials and

witnesses on which WPC’s work product is based.

A.

As a threshold matter, this court has jurisdiction over

WPC’s appeal under Perlman v. United States, 247 U.S. 7, 13

(1918), and its progeny. Under the Perlman doctrine,

“discovery orders addressed to disinterested nonparties are

immediately appealable,” In re Sealed Case, 141 F.3d 337, 339-

40 (D.C. Cir. 1998), because “the third party generally lacks a

sufficient stake in the proceeding to risk contempt by refusing

statement of the applicant’s interest in the matter as to which

relief is sought, a statement of facts and a specific prayer for

relief. The application shall be served on the parties to the

criminal case and shall be referred by the Clerk to the trial

judge assigned to the criminal case for determination.

D.D.C. R. 57.6.

7

compliance” as that party is not the holder of the privilege, In re

Subpoena Duces Tecum Issued to CFTC, 439 F.3d 740, 743

(D.C. Cir. 2006); see also Church of Scientology of California

v. United States, 506 U.S. 9, 18 n.11 (1992); In re Sealed Case,

141 F.3d at 339-40. Here, the United States is the subject of the

discovery order but WPC’s privileges are at stake; accordingly,

the United States presumably lacks the incentive to preserve the

privileges by committing contempt of court. See In re Sealed

Case, 754 F.2d 395, 399 (D.C. Cir. 1985). Indeed, in its brief to

this court, the United States advises that “[t]he government has

already complied partly and intends to comply fully with the

district court’s order [to] disclos[e] the documents to defendant

Thompson.” Appellee U.S. Br. at 20. Such intent to comply

favors allowing an immediate appeal under the Perlman

doctrine. See In re Sealed Case (Medical Records), 381 F.3d

1205, 1211 (D.C. Cir. 2004); In re Sealed Case, 141 F.3d at 340.

Accordingly, under the Perlman doctrine, the discovery order is

an “immediately appealable final order,” In re Subpoena Duces

Tecum Issued to CFTC, 439 F.3d at 743.

Notwithstanding the fact that the public, the government,

and Thompson all have a strong interest in ensuring a speedy

trial, see Flanagan v. United States, 465 U.S. 259, 265 (1984),

Thompson’s objections to our jurisdiction are unpersuasive.

According to Thompson, the Perlman doctrine is unavailable

because contempt proceedings were available to WPC when it

first turned over the documents; WPC could have refused to

make disclosures to the government during its investigation of

WPC, prompting a court order with which it could refuse to

comply. Hence, allowing an appeal would be unnecessary

because WPC has already had a chance to assert its privilege

claims. Cf. United States v. Ryan, 402 U.S. 530, 533 (1971).

However, for purposes of determining jurisdiction, this court

accepts as true an allegation that the documents are privileged

and that any privilege has not been waived. See In re Sealed

8

Case (Medical Records), 381 F.3d at 1209. Thus the court must

assume at this point that WPC has taken any and all necessary

steps to preserve its privileges. Likewise, the question whether

WPC’s privileges are so important that they should prevail over

Thompson’s constitutional rights as a criminal defendant goes

to the merits of disclosure and has little to do with whether the

production order is “final.” Thompson’s suggestion that

allowing WPC to appeal “would have the perverse effect of

allowing a third party to appeal an order that neither the

government nor the defendant could appeal,” Appellee

Thompson Br. at 26, is also flawed. That neither party could

appeal the order would show that this is effectively WPC’s last

chance to oppose the order and would buttress its position that

any rights it has will not be vindicated unless this court reviews

the order on an interlocutory basis.

Allowing an immediate appeal for WPC, even though doing

so delays Thompson’s criminal trial, comports with Perlman

itself, which involved a grand jury proceeding. Thompson’s

attempt to distinguish Perlman on the ground that it involved a

constitutional challenge to the grand jury is of no moment.

Allowing the appeal is consistent with the principle that

privileges play an important role in the healthy functioning of

the criminal justice system, see, e.g., United States v. Nobles,

422 U.S. 225, 238 (1975). As this court observed in United

States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), federal courts

have often allowed third parties to “assert their interests in

preventing disclosure of material sought in criminal proceedings

or in preventing further access to materials so disclosed,” id. at

311 n.67. The court’s grant of an expedited appeal

acknowledges the importance of avoiding undue delay of

Thompson’s trial.

9

B.

The work-product doctrine, recognized by the Supreme

Court in Hickman v. Taylor, 329 U.S. 495 (1947), reflects the

strong “public policy underlying the orderly prosecution and

defense of legal claims.” Id. at 510; see also Nobles, 422 U.S.

at 236-40; Hickman, 329 U.S. at 514-15. The doctrine protects

written materials that lawyers prepare “in anticipation of

litigation,” ensuring that “lawyers can prepare for litigation

without fear that opponents may obtain their private notes,

memoranda, correspondence, and other written materials.” In re

Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998). As the Court

observed in Hickman:

In performing his various duties . . . it is essential that

a lawyer work with a certain degree of privacy, free

from unnecessary intrusion by opposing parties and

their counsel. Proper preparation of a client’s case

demands that he assemble information, sift what he

considers to be the relevant from the irrelevant facts,

prepare his legal theories and plan his strategy without

undue and needless interference. . . . This work is

reflected, of course, in interviews, statements,

memoranda, correspondence, briefs, mental

impressions, personal beliefs, and countless other

tangible and intangible ways — aptly though roughly

termed by the Circuit Court of Appeals in this case as

the ‘Work product of the lawyer.’ Were such materials

open to opposing counsel on mere demand, much of

what is now put down in writing would remain

unwritten. . . . The effect on the legal profession would

be demoralizing. And the interests of the clients and

the cause of justice would be poorly served.

329 U.S. at 510-11 (internal citation omitted). See generally

Kenneth S. Broun, 1 MCCORMICK ON EVIDENCE § 96 at 433 (6th

10

ed. 2006); 6 JAMES WM. MOORE ET AL., MOORE’S FEDERAL

PRACTICE § 26.70 (3d ed. 2009); Developments in the

Law—Discovery, 74 HARV. L. REV. 940, 1027-46 (1961).

On appeal, the United States does not contest that the

documents at issue were covered by the attorney-client and

work-product privileges before production to it. The

government did not take a position before the district court as to

whether Williams had waived the attorney-client privilege with

respect to the produced documents. This court has declined to

adopt a selective waiver doctrine that would allow a party

voluntarily to produce documents covered by the attorney-client

privilege to one party and yet assert the privilege as a bar to

production to a different party. See In re Sealed Case, 877 F.2d

976, 980 (D.C. Cir. 1989); Permian Corp. v. United States, 665

F.2d 1214, 1219 (D.C. Cir. 1981). But, the question remains

whether work-product protection has been waived. Because the

work-product doctrine is designed to “promote the adversary

system by safeguarding the fruits of an attorney’s trial

preparation from the discovery attempts of the opponent” and

not, as the attorney-client privilege is designed, “to protect a

confidential relationship,” not all disclosures to third parties

waive the protection afforded by the doctrine. United States v.

AT&T, 642 F.2d 1285, 1299 (D.C. Cir. 1980); see also Rockwell

Int’l Corp. v. Dep’t of Justice, 235 F.3d 598, 605 (D.C. Cir.

2001); Permian Corp., 665 F.2d at 1219. Yet “disclosure of

work product materials can waive the privilege for those

materials if ‘such disclosure, under the circumstances, is

inconsistent with the maintenance of secrecy from the disclosing

party’s adversary.’” Rockwell Int’l Corp., 235 F.3d at 605

(quoting AT&T, 642 F.2d at 1299). Three main factors

determine whether work-product protection has been waived:

“(1) ‘the party claiming the privilege seeks to use it in a way that

is not consistent with the purpose of the privilege’; (2) the party

had no reasonable basis for believing that the disclosed materials

11

would be kept confidential by the [government]; and (3) waiver

of the privilege in these circumstances would not trench on any

policy elements now inherent in this privilege.” In re

Subpoenas Duces Tecum, 738 F.2d 1367, 1372 (D.C. Cir. 1984)

(internal citation omitted).

As to the first factor, In re Subpoenas Duces Tecum, 738

F.2d 1367, is instructive. There, the court concluded that

allowing the party (the Tesoro Company) claiming the privilege

the benefits of selective waiver would not well serve the

adversary system, “which spawned the need” for work-product

protection. Id. at 1372. Moreover, the court concluded that the

Securities and Exchange Commission (“SEC”), which had

created a voluntary disclosure program relying on internal

reviews of allegations of improper corporate payments, was an

adversary of Tesoro, a company participating in the program;

Tesoro’s disclosure was motivated by a desire to secure lenient

punishment for any wrongdoing exposed in the disclosed

materials. The court reasoned that Tesoro’s disclosure to the

SEC was not simply disclosure to a party with common

interests. For purposes of this appeal, contrary to WPC’s

contention, we will assume that WPC was not coerced into

producing documents to the government, as the district court

found, for we can reach a disposition that is not inconsistent

with WPC’s confidentiality claim without addressing a troubling

constitutional issue. Like Tesoro, then, WPC “independently

and voluntarily chose to participate in a thorough disclosure

program, in return for which it received the quid pro quo of

lenient punishment for any wrongdoing exposed in the process,”

id. Consequently, here too “[i]t would . . . be inconsistent and

unfair to allow [WPC] to select according to [its] own self-

interest to which adversaries [it] will allow access to the

materials,” id.

12

As to the second factor, whether the party had a reasonable

basis for believing that the government would keep the disclosed

materials confidential, the reasoning of In re Subpoenas Duces

Tecum, 738 F.2d 1367, is not determinative. In one sense, as in

that case, here there were no “common interests between

transferor and transferee” to support an expectation of

confidentiality, id. at 1372. Just as the SEC and Tesoro were

adversaries, the federal investigators and WPC were adversaries.

But, unlike here, there was no other solid basis for Tesoro’s

expectation that its produced documents would be kept

confidential. Id. In contrast, by letters accompanying its

disclosures to the government WPC expressed its desire to

preserve its privileges and limit waivers. See, e.g., letters supra

note 1 and accompanying text. The government, in turn,

acknowledged in opposing Thompson’s motion to compel that

WPC had a reasonable basis for believing that the Justice

Department and the CFTC would keep its documents

confidential. WPC has standing, at least at this stage, to seek

enforcement of this confidentiality agreement.

Just as clearly, however, WPC has not demonstrated that

disclosure of its documents to a criminal defendant under Brady

and Rule 16 lay beyond the scope of its confidentiality

agreement with the government. Thompson’s indictment was an

outgrowth of the criminal investigation in which WPC produced

the documents at issue. WPC’s expression of its expectation of

confidentiality sought the commitment of the government to

assist in preserving WPC’s privileges only “to the extent

possible.” E.g., Davis Letter of April 25, 2003, supra p. 4. In

view of this phrasing, WPC’s expectation of confidentiality

cannot reach the disclosures grounded in the government’s

Brady obligations, which are constitutionally based, and may not

reach disclosures the government would be required to make

under Rule 16, which turns on a balancing of interests. See

United States v. Garcia, 625 F.2d 162, 165 (7th Cir. 1980)

13

(citing Rovario v. United States, 353 U.S. 53, 62 (1957)); FED.

R. CRIM. P. 16(d)(1). Moreover, WPC made the disclosures

pursuant to grand jury subpoena and thus the materials were

disclosed with the understanding that they potentially would be

used at trial. In producing one set of documents to the

government, WPC stated through independent counsel that it

was “waiv[ing] the attorney work product privilege with respect

to [Gray Cary’s] investigation of reports to various publications

that publish gas indices,” Letter from Edward P. Davis, Jr., Gray

Cary, to Keslie Stewart, Esq., Dep’t of Justice, et al. (Apr. 23,

2003), and confirmed the privilege was waived with respect to

the government’s use of the documents. In transmitting

interview notes, WPC stated it was waiving its work-product

privilege with respect to “this grand jury investigation by your

office,” and the prosecutors’ “investigation of natural gas price

reporting issues.” Davis Letter of April 25, 2003, supra p. 4.

Given this evidence of the scope of the waiver under the

confidentiality agreement with the government, WPC has not

shown that it reasonably expected the government would guard

the confidentiality of the documents despite its Brady and Rule

16 obligations.

As to the third factor, which turns on the public policy

interests inherent in the work-product doctrine, the court

concluded in In re Subpoenas Duces Tecum, 738 F.2d 1367, that

if public policy favored an exception to waiver for cooperation

with investigative regulatory bodies, a court is not the

appropriate forum in which to craft such an exception. Id. at

1375. However, the court also noted that “the company can

insist on a promise of confidentiality before disclosure to the

SEC.” Id. Here, WPC sought confidentiality, but the assurances

it secured were neither sufficiently strong nor sufficiently

unqualified to prevent the government’s disclosure of

documents material to preparation of a criminal defense.

14

C.

In granting Thompson’s motion to produce, the district

court ordered that the government “shall produce to defendant

all materials disclosed to the Government by [WPC] pursuant to

[WPC’s] cooperation with the federal investigations that

resulted, ultimately, in the indictment of the defendant, Scott

Thompson.” In the course of considering WPC’s motion for a

stay, the district court indicated that its ruling was based on the

defendant’s right to prepare a defense for trial, concluding that

denial of access to the documents at issue would harm

Thompson since the government has access to them. In so

ruling, the district court implicitly ruled that the documents

material to Thompson’s defense were discoverable under Brady

and Rule 16. This court typically reviews a discovery order for

abuse of discretion. In re Subpoenas Duces Tecum Issued to

CFTC, 439 F.3d at 743.

In Brady, the Supreme Court established the prosecution’s

affirmative duty to disclose material evidence “favorable to an

accused,” 373 U.S. at 87. The Court has defined “material

evidence” to mean “there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the

proceeding would have been different.” Kyles v. Whitley, 514

U.S. 419, 433 (1995) (internal quotation marks and citations

omitted). Rule 16, in turn, requires the government to disclose,

upon request, inter alia, statements by the defendant and

documents and objects in the government’s control where “the

item is material to preparing the defense,” FED. R. CRIM. P.

16(a)(1)(E)(i), or the government intends to use the item in its

case in chief, id. 16(a)(1)(E)(ii). See United States v. Marshall,

132 F.3d 63, 67-69 (D.C. Cir. 1998); FED. R. CRIM. P. 16(a)(2),

(3). At the same time, Rule 16(d)(1) provides that “for good

cause” the district court may “deny, restrict, or defer discovery

or inspection or grant other appropriate relief.” FED. R. CRIM.

P. 16(d)(1); see also Alderman v. United States, 394 U.S. 165,

15

185 (1969) (discussing former Rule 16(e), which is currently

embodied in Rule 16(d)(1)); Morgan v. Dep’t of Justice, 923

F.2d 195, 197 n.2 (D.C. Cir. 1991); Baker v. United States, 401

F.2d 958, 978 n.91 (D.C. Cir. 1968) (discussing former Rule

16(e)). Given that Rule 16(d)(1)’s balancing encompasses

WPC’s interest in the confidentiality of the documents at issue,

see Garcia, 625 F.2d at 165, WPC has standing to protect its

interest in confidentiality, albeit in a manner consistent with

Thompson’s right to a fair trial and the government’s Brady and

Rule 16 obligations to Thompson.

The government informed the district court on June 22,

2007 that its review of the documents at issue had not uncovered

any Brady material and that it had not determined a witness list

that would trigger Jencks obligations. Additionally, the

government advised that its investigation had addressed an array

of activities unrelated to WPC or Thompson, such that only

some of the documents turned over by WPC, including witness

interviews, would be relevant to Thompson’s preparation of a

defense. Further, the government argued that because

Thompson has all the source data on which WPC based its

analysis, production of the analysis itself was not required. The

government had previously advised that it had found no

statements by Thompson and invoked Federal Rules of Evidence

801(c) and 408 in arguing that attorney notes of interviews and

reports prepared by counsel are not evidence, but hearsay and

potentially evidence of compromise or offer to compromise. On

June 26, 2008, following the grant of Thompson’s motion to

compel production, the government advised that it had located

some documents it was obligated to turn over to Thompson. At

a July 8, 2008 hearing, WPC, in turn, clarified that it was not

suggesting the underlying factual documents necessarily should

be withheld from discovery by Thompson, but only that the

private attorney notes and analyses should be withheld.

16

The district court did not make specific findings to resolve

WPC’s privilege claims. In denying WPC’s request for a stay,

however, the district court balanced the interests underlying the

privileges against a criminal defendant’s right to prepare a

defense, concluding that the harm that WPC would suffer with

regard to the civil litigation pending in California as a result of

disclosure was “at that time” too speculative, while the harm to

Thompson was real given the government’s access to the

documents he sought to discover. Upon observing that work-

product protection is a qualified privilege, the district court was

confronted with WPC’s suggestion for in camera document-by-

document review because there was no subset of documents

WPC could then identify whose release would harm it most.

WPC further argued that its attorneys’ notes and analyses would

not be reachable through deposition and the notes potentially

constituted an admission against interest. As Thompson points

out on appeal, he had argued he had “reason to believe that

[WPC’s] internal investigation entailed extensive witness

interviews and fact-gathering,” and such documents are essential

to an effective examination of witnesses called by the

government or himself at trial. Appellee Thompson Br. at 54-

55.

It remains for the district court on remand to determine

which of the documents at issue are material to Thompson’s

ability to prepare his defense, and upon identifying those

documents to afford appropriate protection to WPC against

public disclosure in a manner that is consistent with Thompson’s

right to a fair trial and the government’s confidentiality

agreement with WPC. Given the scope of the confidentiality

agreement, WPC cannot preclude discovery by Thompson of the

documents it produced to the government as are material to

Thompson’s defense, but Brady and Rule 16 contemplate a role

for the district court. A general conclusion that a defendant has

demonstrated “adequate reasons,” In re Sealed Case, 676 F.2d

17

793, 809 & n.58 (D.C. Cir. 1982), for disclosure of factual work

product would appear insufficient here because that showing

also turns on whether “that work product contains relevant,

nonprivileged facts,” id. at 809 (emphasis added). Because the

government’s criminal investigation was far broader than WPC

and its employees and did not focus on Thompson alone,

discovery by Thompson must proceed in a manner that avoids

a fishing expedition, see Nobles, 422 U.S. at 240-41, as the

district court’s order of production suggests. Upon remand the

district court can flesh out the details as to which documents

must be disclosed because material to Thompson’s preparation

of a defense and determine whether a protective order should be

issued with respect to any of those documents. Cf., e.g., In re

Sealed Case, 121 F.3d 729, 762 (D.C. Cir. 1997) (remanding

and attaching chart listing documents and privileges asserted as

a sealed appendix).

Accordingly, we remand the case to the district court and do

not reach WPC’s contention that its production of documents

was involuntary due to government coercion. Neither do we

address WPC’s contention that the documents at issue are

entitled to protection under a common-law, federal settlement

privilege, an issue that was not properly raised in the district

court and thus is not properly before this court. See In re

Subpoena Duces Tecum Issued to CFTC, 439 F.3d at 750-51.