and work-product protection over documents in their case files Op at The district court determined that the crime-fraud exception may apply ordered a special master to review the contested documents in camera that and Collingsworth claimed were privileged or work product protected and certified its Order for immediate appeal Op at On appeal the Eleventh Circuit reiterated that the crime-fraud exception removes the seal of secrecy from attorney-client communications or work product materials when they are made in furtherance of an ongoing or future crime or fraud Op at citing United States Zolin U.S Following earlier precedent in Parrott Wilson F.2d 11th Cir the Eleventh Circuit affirmed the part of the district courts order determining that the crime fraud exception may be applied because an attorneys illegal or fraudulent conduct may alone overcome attorney work-product protection Op at The court also relied on Moody I.R.S F.2d D.C Cir as it did in Parrott in recognizing that the clients innocence where the attorney is accused of misconduct does not absolutely bar the application of the crime-fraud exception to materials shielded by the work product doctrine Instead it requires the court to apply a balancing test to weigh the clients legitimate interest in secrecy against the reasons for disclosure Op at The court resolved the pure legal issue by holding that the crime-fraud exception may be applied to eliminate work product protection based on attorney misconduct when the client is innocent Op at The Court directed that On remand under the district courts order the special master will perform an in camera review of certain categories of documents that and Collingsworth contend are protected by the attorney-client privilege or work-product protection Op at CERTIFICATE OF SERVICE I certify that the foregoing document has been furnished to the attorneys listed on the Service List below on April through the Courts e-filing portal pursuant to Florida Rule of Judicial Administration LINK ROCKENBACH PA Palm Beach Lakes Boulevard Suite West Palm Beach Florida fax By Isl Scott Link Scott Link FBN Kara Berard Rockenbach FBN Rachel Glasser FBN Primary Scott linkrocklaw.com Primary Kara linkrocklaw.com Primary Rachel linkrocklaw.com Secondary Tina linkrocklaw.com Secondary Troy linkrocklaw.com Secondary Eservice linkrocklaw.com Trial Counsel for Plaintiff/Counter-Defendant Jeffrey Epstein SERVICE LIST Jack Scarola Karen Terry David Vitale Jr Searcy Denny Scarola Barnhart Shipley P.A Palm Beach Lakes Boulevard West Palm Beach FL mep searcylaw.com jsx searcylaw.com dvitale searcylaw.com scarolateam searcylaw.com terryteam searcylaw.com Co-Counsel for Defendant/Counter-Plaintiff Bradley Edwards Philip Burlington Nichole Segal Burlington Rockenbach P.A Courthouse Commons Suite West Railroad A venue West Palm Beach FL pmb FLAppellateLaw.com njs FLAppellateLaw.com kbt FLAppellateLaw.com Co-Counsel for Defendant/Counter-Plaintiff Bradley Edwards Bradley Edwards Marc Nurik Edwards Pottinger LLC Law Offices of Marc Nurik Andrews A venue Suite One Broward Boulevard Suite Fort Lauderdale FL Ft Lauderdale FL brad epllc.com marc nuriklaw.com Co-Counsel for Defendant/Counter-Plaintiff Counsel for Defendant Scott Rothstein Bradley Edwards Jack A Goldberger Paul Cassell Atterbury Goldberger Weiss P.A University Australian Avenue Suite Salt Lake City UT West Palm Beach FL cassellp law.utah.edu goldberger agwpa.com Limited Intervenor Co-Counsel for L.M E.W smahoney agwpa.com and Jane Doe Co-Counsel for Plaintiff/Counter-Defendant Jeffrey Epstein Jay Howell Jay Howell Associates Cesery Blvd Suite Jacksonville FL jayhowell.com Limited Intervenor Co-Counsel for L.M E.W and Jane Doe EXHIBIT A Case Date Filed Page of PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Nos D.C Docket No DRUMMOND COMPANY INC Plaintiff Appellee versus CONRAD SCHERER LLP Defendant Appellant Appeal from the United States District Court for the Northern District of Alabama March Before WILSON JILL PRYOR and BARTLE Circuit Judges JILL PRYOR Circuit Judge Honorable Harvey Bartle I United States District Judge for the Eastern District of Pennsylvania sitting by designation Case Date Filed Page of Drummond Inc sued Conrad Scherer LLP a law firm and its partner Terrence Collingsworth for defamation In this appeal seeks interlocutory review of the district courts order concluding that the crime-fraud exception could defeat the firms and Collingsworths assertions in discovery of attorney-client privilege and attorney work product protection The district court made a preliminary determination that the crime-fraud exception may apply to overcome their assertions of privilege and attorney work product protection and ordered a special master to perform an in camera review to determine whether the crime-fraud exception does apply Although non-final orders generally are not immediately appealable the district court certified its order for immediate appeal and a motions panel of this Court granted permission to bring an interlocutory appeal under U.S.C After full briefing by the parties and with the benefit of oral argument we conclude that interlocutory review is appropriate to address only one aspect of the district courts order We vacate as improvidently granted the motion panels order in part and elect not to exercise our discretion to review the question posed in that part whether the district court erred in applying agency principles to conclude that intended to commit a crime or fraud and created attorney work product or Case Date Filed Page of made communications in furtherance of the crime or fraud We decline to review this issue because it does not present a pure question of law suitable for review on an interlocutory basis under Accordingly we vacate the motion panels earlier order in part and deny Ss petition in part We do address the other issue on which interlocutory review was granted whether the crime-fraud exception may be applied to overcome Ss assertion as a defendant in this case that its materials related to other lawsuits where it served as counsel are protected as attorney work product when the firms clients in those lawsuits were innocent of any wrongdoing This question presents the pure legal issue of whether work product protection may be invoked when a lawyer and law firm are found to have engaged in a crime or fraud but there is no such finding as to the client or clients they represented Following our precedent and persuasive decisions from other circuits we conclude that the crime fraud exception may defeat work product protection in this circumstance We thus affirm the part of the district courts order determining that the crime-fraud exception could be applied As the merits panel we have the authority to vacate as improvidently granted the motions panels decision to permit the interlocutory appeal See McFarlin Conseco Servs LLC F.3d Like all motions initially ruled upon by a motions panel an order by a motions panel granting permission for an interlocutory appeal under is subject to being vacated as improvidently granted by the merits panel to which the case is assigned for decision see also 11th Cir A ruling on a motion or other interlocutory matter is not binding upon the panel to which the appeal is assigned on the merits and the merits panel may alter amend or vacate it We note that this issue does not concern materials claimed to be protected by the attorney-client privilege Case Date Filed Page of to overcome claim of work product protection for materials related to lawsuits where served as counsel despite the fact that its clients were innocent of wrongdoing I FACTUAL AND PROCEDURAL BACKGROUND This appeal arises out of a complex dispute that began when Collingsworth a partner represented Colombian citizens who sued Drummond an Alabama company in federal court in Alabama alleging that Drummond had supported paramilitary groups in Colombia that murdered private citizens To provide the necessary context for our discussion we recount the relevant history of the Colombian citizens lawsuits against Drummond and Drummonds later lawsuit against Collingsworth and A Collingsworth and Ss Representation of Colombians Suing Drummond In his law practice Collingsworth primarily represents victims of human rights abuses He joined as a partner to litigate such cases Although the firm is based in Florida he worked out of and managed its Washington D.C office While a partner at Collingsworth filed on behalf of Colombian citizens several lawsuits the alien tort cases against Drummond which operates coal mines around the world including in Colombia The plaintiffs sued Drummond under the Alien Tort Statute U.S.C and the Torture Victim Protection Case Date Filed Page of Act of Pub No Stat codified at U.S.C note alleging that Drummond hired members of the paramilitary to provide security services around its mines in Colombia and that these individuals acting as the agents of Drummond killed civilians in violation of the laws of nations See generally Doe Drummond Co F.3d 11th Cir Collingsworth acted as the lead attorney in these cases William Scherer the firms managing partner and other attorneys entered appearances in the cases As managing partner Scherer delegated to Collingsworth the authority to litigate the cases To support the claims against Drummond Collingsworth developed evidence connecting Drummond to the paramilitarys violent actions He secured testimony from several former members of the paramilitary including Jairo de Jesus Charris Libardo Duarte Jose Gelvez Albarracin Alcides Manuel Mattos Tabaraes Samario and Jhon Jairo Esquivel Cuadrado El Tigre These witnesses offered testimony that implicated Drummond Additionally Collingsworth relied on testimony from Jamie Blanco who worked as a contractor for Drummond in Colombia Blanco testified that Drummond sent him money that he was directed to use to pay the paramilitary for security services Case Date Filed Page of In the alien tort cases Drummond sought discovery about whether the plaintiffs or their attorneys had paid or given anything of value to these witnesses in exchange for their testimony In response the plaintiffs identified three witnesses who had been paid-Charris Duarte and Gelvez The plaintiffs claimed these payments were made to provide security to the family members of the witnesses who were in danger as a result of the witnesses testimony The plaintiffs in the alien tort cases did not identify any payments they made to Samario El Tigre or Blanco Ultimately Drummond prevailed in each of the alien tort cases But the dispute between Drummond on the one hand and and Collingsworth on the other was only beginning The plaintiffs also identified a fourth potential witness who received money from but stopped paying this potential witness when it determined that he was not credible and would not be used as a witness Balcero Giraldo Drummond Co No WL N.D Ala July granting summary judgment in favor of Drummond affd sub nom Doe Drummond Co F.3d 11th Cir Baloco Drummond Co No WL N.D Ala Sept dismissing case in part and granting summary judgment in favor of Drummond affd F.3d 11th Cir Order Melo Penaloza Drummond Co No N.D Ala Jan ECF No dismissing case with prejudice a.ff in part rev in part vacated in part and remanded with instructions Appx 11th Cir Case Date Filed Page of Drummonds Defamation Action Against Collingsworth and Drummond Files a Defamation Action and Seeks Discovery About Witness Payments While the alien tort cases were pending Collingsworth wrote letters on stationary to the Dutch government and a Japanese company accusing Drummond of supporting paramilitary groups that murdered hundreds of Colombian citizens After Collingsworth sent these letters Drummond sued Collingsworth and for defamation in federal court in Alabama the defamation case At the beginning of the defamation case Collingsworth and were jointly represented by outside counsel Because of Collingsworths central role in the underlying litigation and in writing the allegedly defamatory letters he was the partner primarily responsible for working with outside counsel In their joint answer Collingsworth and denied liability and raised several defenses including that the statements in the letters were true and that they had not acted maliciously Attempting to prove that Collingsworth had known the statements in his letters were false and that he had acted with malice Drummond served discovery requests about the methods Collingsworth and his litigation team had used in the alien tort cases to secure testimony from the witnesses including information about any payments made to the witnesses Collingsworth and responded that they had previously disclosed all payments made to witnesses pointing to their Case Date Filed Page of disclosures that payments had been made to Charris Duarte and Gelvez In hearings and other filings with the district court Collingsworth and outside counsel repeated that only Charris Duarte and Gelvez had received payments Through Discovery Additional Witness Payments Are Uncovered As it turns out all of these statements made in discovery were false Eventually Collingsworth and admitted that El Tigre Samario and Blanco had also received payments The payments were uncovered after Drummond subpoenaed a law firm that had served as co-counsel in the alien tort cases That law firm produced an email showing that Collingsworth had asked co-counsel and Scherer for permission to pay approximately in attorneys fees on Blanco behalf in a pending criminal case in Colombia The co-counsel copying Scherer directed Collingsworth not to pay the fees because they would have to disclose these payments in the alien tort cases which would damage Blanco credibility and likely be seen as bribery Drummond used this email which Collingsworth and had failed to produce in discovery to argue that Collingsworth and had been hiding information about witness payments A few months later Collingsworth and admitted that El Tigre Samario and Blanco had received payments At Collingsworths direction had sent and continued to send Samario and El Tigre each per month wired the money from its operating Case Date Filed Page of account to an intermediary in Colombia who delivered the money to Samario and El Tigre began making these payments during the alien tort cases and continued to make them while the defamation case was ongoing Multiple partners and employees at were aware of these payments Shortly after the monthly payments began Collingsworth sent an email to his co counsel in the alien tort cases copying Scherer informing them that El Tigre and Samario would receive money each month until they were deposed This email was forwarded to Scherer son another partner who then apparently had an associate research the propriety of witness payments employees who were responsible for sending the monthly wires also were aware that was sending money to the intermediary to pay El Tigre and Samario Blanco received no money directly from or Collingsworth instead he received money from Albert van Bilderbeek another Colombian client of Collingsworths After being told by co-counsel not to pay Blancos attorneys fees Collingsworth introduced Blanco to van Bilderbeek Van Bilderbeek subsequently paid ofBlancos legal fees While these payments were being made Collingsworth served as intermediary between Blanco and van Bilderbeek At one point Blanco-waiting for money from van Bilderbeek-told Collingsworth that he would not finalize his declaration until van Bilderbeek paid Case Date Filed Page of him After van Bilderbeek paid Blanco signed a declaration that Collingsworth used in the alien tort cases Drummond Seeks Sanctions and Raises the Crime-Fraud Exception After and Collingsworth disclosed these additional witness payments Drummond moved for sanctions asserting that Collingsworth and had made false statements to the court by failing to disclose these payments The court allowed Drummond to depose Collingsworth and Scherer about the witness payments and related issues At his deposition Collingsworth admitted that there had been payments made to witnesses that he and had failed to disclose With regard to the payments to El Tigre and Samario Collingsworth testified that he had forgotten about the payments to the witnesses because they were made through an intermediary With regard to van Bilderbeeks payments to Blanco for legal fees Collingsworth claimed that he failed to disclose the payments because he thought that he had only been asked to identify payments that he made directly to witnesses rather than payments made by third parties like van Bilderbeek Scherer who was deposed as the representative of explained that he had not As sanctions Drummond asked the court to enter a default judgment against Collingsworth and hold Collingsworth in contempt of court and award Drummond its reasonable attorneys fees Case Date Filed Page of known about the witness payments and that once he learned of the payments he made sure that promptly disclosed them to the court Although Collingsworth and Scherer provided this general information they refused to answer many categories of questions posed in discovery claiming that the information Drummond sought was protected by the attorney-client privilege or the attorney work product doctrine For example Collingsworth refused to answer questions regarding communications about the witness payments that he had had with Ivan Otero a Colombian attorney who served as a conduit for payments from to El Tigre and Samario or to identify who was involved in drafting the filings in the defamation action that contained misrepresentations about the witness payments And Collingsworth and Scherer refused to answer questions about what caused them to realize that they had made inaccurate statements about the witness payments or the process that led them to correct their misstatements claiming the information sought was privileged or protected from discovery Drummond asked the court to hold that the crime-fraud exception vitiated Collingsworth and claims of attorney-client privilege and work product protection The District Court Applies the Crime-Fraud Exception After a hearing the district court issued an order applying the crime-fraud exception to both Collingsworth and In reaching this conclusion the district Case Date Filed Page of court followed our circuits two-part test for applying the crime-fraud exception and determined that Drummond had made a prima facie showing that Collingsworth and had engaged in criminal or fraudulent conduct when seeking the advice of counsel and creating attorney work product in the alien tort and defamation cases and identified categories of communications and attorney work product that may not be protected from discovery because they were used to further a crime or fraud First the district court pointed to evidence that both Collingsworth and had engaged in criminal or fraudulent conduct when they sought the advice of outside counsel in the defamation case and created attorney work product in both the alien tort and defamation cases The district court determined that the crime fraud exceptions first prong was satisfied as to three crimes fraud on the court witness bribery and suborning perjury The court emphasized that it was not holding that a crime or fraud actually had been committed but only that a prima facie case had been established In determining that there was a prima facie case of fraud on the court the district court identified numerous false statements Collingsworth and had made to the court The court identified misstatements regarding witness payments that Collingsworth had made to the court in the alien tort cases when he was acting as a partner as well as misstatements that Collingsworth and outside counsel Case Date Filed Page of had made in the defamation action The court found that both Collingsworth and had made these false statements knowingly In a lengthy footnote the district court explained that there was sufficient evidence to find that had knowingly made misstatements First the court explained that because Collingsworth was a partner in and was acting for the firms benefit his actions and knowledge were attributable to the firm under agency principles Second the court cited evidence showing that other firm partners and employees including Scherer had been aware of the monthly payments being made to the witnesses and explained that it was unbelievable that no one at the firm other than Collingsworth had known of the payments As for the witness bribery and suborning perjury crimes the district court determined that Drummond had established a prima facie case with evidence showing that the witnesses had received payments from the litigation team under suspicious circumstances The court once again relied on agency principles to establish the prima facie showing that had bribed witnesses and suborned perjury explaining that every action taken by Collingsworth in the case had been in his capacity as a partner and agent of The district court then turned to the second prong of the test which required a showing that the communication was made or attorney work product was created in furtherance of the criminal or fraudulent activity Because the court did not Case Date Filed Page of have before it the specific materials that Collingsworth and claimed were privileged or protected from discovery in lieu of a document-by-document analysis the court considered whether the categories of discovery Drummond sought were sufficiently related to the allegations of fraud witness bribery and suborning perjury The court found that each category of discovery Drummond identified was sufficiently related to the allegations of fraud on the court witness bribery and suborning perjury These categories of information included Collingsworths communications with Ivan Otero the Colombian attorney who served as the intermediary for payments from to El Tigre and Samario and from van Bilderbeek to Blanco Collingsworth and withholding and redaction of documents produced to Drummond in the defamation case showing payments to El Tigre and Samario Collingsworth and drafting of pleadings and papers in the alien tort and defamation cases that included misrepresentations regarding the scope nature and extent of witness payments Collingsworths email informing Scherer and his co-counsel that Samario and El Tigre would receive ongoing monthly payments and what was done with the email after it sent Collingsworths communications with attorney Paul Wolf about witness payments Collingsworths disclosure of payments to El Tigre Samario and Blanco to outside counsel in the defamation case Collingsworths payment of to a consulting attorney in Colombia who assisted in obtaining access to prisoners in Colombia in order to interview and depose them in the alien tort cases Case Date Filed Page of Collingsworths communications with van Bilderbeek regarding payments to Blanco and Collingsworth and search for documents in the defamation case After determining that the crime-fraud exception may apply the district court ordered a special master to review in camera the documents that Collingsworth and claimed were privileged or protected as attorney work product to determine whether each individual document was in furtherance of or closely related to a fraud on the court or crime and therefore should be produced to Drummond The court also set forth a procedure for the special master to assess a witnes assertion of attorney-client privilege or attorney work production protection in a deposition The court directed that when necessary a witness should give in camera testimony potentially ex parte so that the special master could appropriately assess any privilege issues while limiting disclosure only to information used or created in furtherance of the crime or fraud After explaining why the crime-fraud exception applied the district court certified that its order involved controlling questions of law as to which there may be a substantial ground for difference of opinion and that an immediate appeal may materially advance the litigation In addressing certification the district court did not identify the specific controlling questions of law that it believed warranted interlocutory review Case Date Filed Page of A Motions Panel of This Court Granted Permission for an Interlocutory Appeal Collingsworth and filed separate petitions for review with our Court seeking permission to file interlocutory appeals from the district courts order A motions panel denied Collingsworths petition A separate motions panel granted Ss petition as to the following two questions Can agency principles be used to impute the application of the crime-fraud exception to an agents principal where the principal has separately-held privileges as a co-defendant in the suit and there is no finding that the exception applies directly to the principal Can agency principles be used to impute the application of the crime-fraud exception to an agents principal where the agent is operating as an attorney and there is no finding that the clients behavior triggered the crime-fraud exception or that the exception applies directly to the principal II BACKGROUND ON THE ATTORNEY-CLIENT PRIVILEGE ATTORNEY WORK PRODUCT DOCTRINE AND CRIME-FRAUD EXCEPTION The issues in this appeal center on how the attorney-client privilege attorney work product doctrine and crime-fraud exception apply to a partnership and what role if any agency principles play in the application of the crime-fraud exception To provide context for these issues we pause for background on the attorney-client privilege and the attorney work product doctrine as well as the crime fraud exception Case Date Filed Page of The attorney-client privilege attaches of course to confidential communications between an attorney and client for the purposes of securing legal advice or assistance See In re Grand Jury Investigation F.2d 11th Cir The purpose of the privilege is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice United States Zolin U.S internal quotation marks omitted Attorney work product protection extends to material obtained or prepared by counsel in the course of their legal duties provided that the work was done with an eye toward litigation See Fed Civ A Cox Adm U.S Steel Carnegie F.3d 11th Cir Work product protection prevents most inquiries into an attorneys work files and mental impressions Hickman Taylor U.S The purpose of this protection is to protect the integrity of the adversary process by allowing a lawyer to work with a There are two sets of attorney-client communications claimed to be privileged that are potentially at issue in this appeal First there are communications between and its clients in Colombia in the alien tort cases Second there are communications between and its outside counsel in the defamation case In the first category is serving as the attorney in the second is the client With respect to the attorney-client privilege as opposed to the protections for attorney work product Drummond seeks discovery of attorney-client privileged materials only from the defamation case-that is Drummond seeks to use the crime-fraud exception to pierce the attorney-client privilege only with respect to communications where was the client We thus do not address whether the crime-fraud exception could apply to privileged communications between and its clients in Colombia who are not alleged to have participated in any wrongdoing With respect to attorney work product Drummond seeks to discover materials from both the alien tort and defamation cases that claims are protected Case Date Filed Page of certain degree of privacy free from unnecessary intrusion by opposing parties and their counsel Id But the protection afforded to work product is not absolute Discovery may be had into factual work product upon a party showing substantial need for the materials to prepare its case and that it cannot without undue hardship obtain their substantial equivalent by other means Fed Civ A Greater protection is given to the attorneys opinion work product-that is materials containing the mental impressions conclusions opinions or legal theories of a partys attorney or other representative concerning the litigation Fed Civ Such materials enjoy a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances Cox F.3d at internal quotation marks omitted The crime-fraud exception allows a party-in rare circumstances-to obtain discovery that otherwise would be protected by the attorney-client privilege or the attorney work product doctrine The crime-fraud exception applies when a two part test is satisfied First there must be a prima facie showing that the client was engaged in criminal or fraudulent conduct when he sought the advice of counsel that he was planning such conduct when he sought the advice of counsel or that he committed a crime or fraud subsequent to receiving the benefit of counsels advice Second there must be a showing that the attorneys assistance was obtained in furtherance of the criminal or fraudulent activity or was closely related to it Case Date Filed Page of In re Grand Jury Investigation F.2d at Stated simply the crime-fraud exception removes the seal of secrecy from attorney-client communications or work product materials when they are made in furtherance of an ongoing or future crime or fraud Zolin U.S at see Cox F.3d at recognizing that the crime-fraud exception applies to work-product in the same way that it applies to the attorney-client privilege When the crime-fraud exception applies an attorneys opinion work product is discoverable Cox 3d at With these principles in mind we now tum to the questions raised in this appeal I SCOPE OF INTERLOCUTORY REVIEW UNDER The federal courts of appeals have jurisdiction of appeals from all final decisions of the district courts of the United States U.S.C A final decision is one by which a district court disassociates itself from the case Doe No United States F.3d 11th Cir internal quotation marks omitted It ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment Id internal quotation marks omitted Discovery orders are ordinarily not final orders that are immediately appealable Id There are however exceptions to the rule that only final decisions are appealable We have discretion to hear interlocutory appeals from district court orders under the certification procedure in U.S.C Case Date Filed Page of When a district judge in making in a civil action an order not otherwise appealable under this section shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation he shall so state in writing in such order The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon in its discretion permit an appeal to be taken from such order if application is made to it within ten days after the entry of the order U.S.C We have explained that when deciding whether to permit an appeal under after a district court has entered an order certifying the appeal and a party has filed a timely application for permission to appeal we are considering not whether we have jurisdiction to hear the appeal but instead whether to exercise our discretion under See McFarlin Conseco Servs LLC F.3d 11th Cir Our precedent identifies several principles to guide us when deciding whether to exercise our discretion under to allow for a rare interlocutory appeal Id at In general we exercise our discretion only when the appeal presents a pure question of law the question is controlling of at least a substantial part of the case the district court identifies the question in its order there are substantial grounds for differences of opinion on the question and resolution of the question may reduce the amount of litigation necessary on remand Id But even if all of these factors are present we still have discretion to disallow the appeal See id Case Date Filed Page of After considering these guiding principles we conclude that the motions panel improvidently granted permission to appeal vacate in part that earlier order and decline to exercise our discretion to decide the first question presented in this appeal Paraphrased the first question asks whether a court may apply the crime fraud exception to a partnership by imputing to the partnership the actions and knowledge of a partner argues that the district court improperly used agency principles to impute Collingsworths intent to commit a fraud or crime to in determining that a crime or fraud occurred and that the relevant communications or work product were made in furtherance of that fraud At first blush the core issue of whether in applying the crime-fraud exception a court may impute a partners knowledge and intent to a partnership appears to raise a purely legal question But concedes that in some circumstances such as when a firms managing partner or partner charged with responsibility to make the decisions at issue participates in the fraud a partners intent may be imputed to the partnership So it cannot be that this appeal presents the abstract purely legal issue whether agency principles ever may be used to impute a partners knowledge and intent to a partnership for purposes of applying the crime fraud exception Instead seeks in effect to have us review whether given the nature of Collingsworths relationship with the firm the record supported the district courts Case Date Filed Page of application of agency principles to impute his intent and actions to This question is not purely one of law about whether agency principles can be imputed for the purpose of applying the crime-fraud exception To the contrary the question posed here requires a fact-specific inquiry into whether the evidence in this case-which showed at a minimum that Collingsworth was the partner to whom Scherer the managing partner had delegated responsibility for the alien tort cases and who also served as the primary point of contact for the firms outside counsel in the defamation cases-is sufficient to support the application of agency principles in the crime-fraud context To answer it would require the court to apply law to the particular facts of the case and thus to take a deep dive into this cases voluminous record The purpose of is not to provide interlocutory appellate review of such fact driven issues See McFarlin F.3d at Accordingly we conclude that permission to appeal on this issue was improvidently granted and we decline to exercise our discretion to hear an interlocutory appeal related to the first question IV LEGALANALYSIS We now tum to the second question raised in this appeal which we do exercise our discretion to answer To clarify the question we rephrase it slightly as follows Case Date Filed Page of Can the crime fraud exception be applied to overcome attorney work product protection when the attorney or law firm was engaged in the crime or fraud but the client was not With this question in effect seeks to bar the disclosure of work product materials created in the alien tort actions claiming that because its clients in those cases were innocent of any wrongdoing work product protection is maintained despite the firms participation in the wrongdoing We hold that the district court properly concluded that the crime-fraud exception may be applied because illegal or fraudulent conduct by an attorney alone may suffice to overcome attorney work product protection We have previously recognized that in cases of attorney misconduct there is no protection for the attorneys work product See Parrott Wilson F.2d 11th Cir In Parrott a party claimed that his attorneys secret recordings of conversations with two witnesses were protected from discovery as work product Id at We disagreed concluding that because the attorneys clandestine recordings were unethical regardless of whether they were work product they Again this issue relates only to materials from the alien tort cases not the defamation case We review de nova a question certified for interlocutory review under Johnson City of Fort Lauderdale F.3d 11th Cir At the time we decided Parrott an ABA opinion concluded that it was unethical for an attorney to make a clandestine recording even when such recording was legal under state law F.2d at 11th Cir That ABA opinion has since been withdrawn See ABA Comm on Ethics and Profl Responsibility Formal Op We express no opinion whether an attorney who makes a clandestine recording today acts unethically Case Date Filed Page of were not protected We relied on a D.C Circuit decision recognizing that in some circumstances a lawyers unprofessional conduct may vitiate the protection afforded to attorney work product Id quoting Moody I.R.S F.2d D.C Cir The D.C Circuit explained in Moody that an attorney should not be able to exploit work product protection for ends outside of and antithetical to the adversary system any more than a client who attempts to use the privilege to advance criminal or fraudulent ends Moody F.2d at Based on this rationale an attorney may not exploit work product protection when she engages in illegal conduct or a fraud upon the court even if her client is innocent Of course for the crime-fraud exception to apply a court must find that the specific document or testimony that the court is ordering to be produced reflects work of the attorney that was performed in furtherance of the criminal or fraudulent activity or that was closely related to it To support its contrary position cites several cases holding that an innocent clients privilege cannot be overcome by the crime-fraud exception But most of these cases consider the scope of the attorney-client privilege rather than Our conclusion today is consistent with the holdings of other circuits that the crime fraud exception may vitiate the protection afforded attorney work product in cases where an attorney commits a crime or fraud See In re Impounded Case Law Firm F.2d 3d Cir allowing crime-fraud exception to overcome work product protection for materials relating solely to possible criminal activity of a law firm In re Doe F.2d 4th Cir concluding that fraud exception allowed disclosure of work product when the lawyer not client was alleged to have engaged in the fraud Case Date Filed Page of the relationship between the crime-fraud exception and the attorney work product doctrine Moody the case on which we relied in Parrott warrants further discussion however In Moody the D.C Circuit recognized that the work product doctrine create a legally protectable interest in non-disclosure in two parties lawyer and client F.2d at The D.C Circuit explained that the conclusion that an attorney has no right to object to the disclosure of work product made possible by his misconduct does not necessarily mean that the work product privilege is inapplicable to such documents because the clients interest in preventing disclosures about his case may survive the misfortune of his representation by an unscrupulous attorney Id relies on this reasoning to argue that the crime fraud exception may not be used to pierce work product protection when the underlying client is innocent because the innocent client may still invoke the doctrine We disagree with Ss position Moody went on to explain that to determine whether an innocent client may rely on the work product doctrine to shield materials after his attorney engaged in a crime or a fraud a court must look to all the circumstances of the case to decide whether the policy favoring disclosure outweighs the clients legitimate interest in secrecy and prevent disclosure when it would traumatize the adversary process more than the Case Date Filed Page of underlying legal misbehavior Id Rather than adopting a blanket rule that the crime-fraud exception does not apply when there is an innocent client the D.C Circuit adopted a balancing test to weigh the clients interest in secrecy against the reasons for disclosure Because we agree with the D.C Circuits application of this balancing test the crime-fraud exception may apply to work product when the attorney but not her client is accused of misconduct We therefore reject Ss argument that the clients innocence is an absolute bar to piercing attorney work product protection through the crime fraud exception We resolve the pure legal issue presented in this interlocutory appeal by holding that the crime-fraud exception may be applied to eliminate work product To support its position that the crime-fraud exception cannot apply to overcome work product protection when a client is innocent also points to several decisions holding that an innocent attorney may invoke work product protection even if his client committed a crime or fraud using his services See e.g In re Grand Jury Proceedings Empanelled Jan F.3d 4th Cir Those seeking to overcome the opinion work product privilege using the crime-fraud exception must make a prima facie showing that the attorney in question was aware of or a knowing participant in the criminal conduct internal quotation marks omitted According to because an innocent attorney may continue to rely on the attorney work product doctrine when his client engaged in a crime or fraud the converse must also be true an innocent client may invoke work product protection even if her attorney committed a crime or fraud while providing services We disagree position would in effect give an innocent client a right to veto any application of the crime-fraud exception to his attorneys work product We cannot agree that a clients interest in preventing disclosures about his case means that the crime-fraud exception may never apply when the attorney not the client engaged in misconduct Instead a court must consider the totality of the circumstances to determine whether the policies favoring disclosure of such materials outweigh the clients legitimate interest in secrecy in a particular case To the extent that disagrees with the district courts application of the crime-fraud exception under the facts of this case it would be quibbling with the way that the district court balanced the clients interests in secrecy against the need for disclosure in these particular circumstances which would not raise a pure issue of law appropriate for review under Case Date Filed Page of protection based on attorney misconduct when the client is innocent Accordingly we affirm the district courts order CONCLUSION Regarding the first question certified on appeal we decline to exercise our discretion to answer whether agency principles may be used to apply the crime fraud exception under the facts of this case We will not answer this question because it does not present a purely legal question This Courts earlier order granting permission to appeal is vacated as improvidently granted as to that question and permission to appeal on that question is denied Regarding the second question certified on appeal we conclude that the crime-fraud exception may in appropriate cases be applied to overcome work product protection based on attorney misconduct even if the attorneys client is innocent of any wrongdoing Accordingly we affirm the district courts order on the crime fraud exception On remand under the district courts order the special master will perform an in camera review of certain categories of documents that and Collingsworth contend are protected by the attorney client privilege or work product protection To conclude that the crime-fraud exception applies to require disclosure of any specific document the special master must find that the document either reflects a communication used to further a crime or fraud or was closely related to it or was created to further a crime or fraud or was closely related to it See Cox F.3d at In re Grand Jury Investigation F.2d at Case Date Filed Page of Question is DECLINED the earlier order granting permission to appeal is VACATED and the petition for permission to review is DENIED Question is ANSWERED A A 4A E0 A4 DE a qr?q rq qrCX HhL Kg lg d?a d6U a M3 flW y??S m/y t0 I F/Z V/j 1a qC KS u?v vZ O5 a qr rCX qC 0V I I dc rM?M rM 10Cy n??m?n k?o?h I A I w?!ac qr MCX 10Cy ITy qr M3 Ґ??1rA5R h?H?T3P K?z X?K H?o I Idc rM?M rM 10Cy f헊?f?Tz e?e:Aa I v"x i X5 EO5 5a r?q CX 9r Cy rq rqC M3 ş?:c p/p0 5H V)V 6T Y2 G5 qrM?r?qr?r9 q?10Cy rCX qr l1 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