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E-FILED

Tuesday, 06 October, 2015 06:11:15 PM

Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
IN RE SPRINGFIELD GRAND JURY

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Misc. 15-mc-3005

GOVERNMENTS MOTION FOR LEAVE TO FILE SUPPLEMENTAL REPLY

TO NOTICE OF COMPLIANCE WITH SUBPOENA
The United States of America, by its attorneys, James A. Lewis, United States
Attorney for the Central District of Illinois, and Timothy A. Bass, Assistant United
States Attorney, respectfully submits its motion for leave to file supplemental reply to
notice of compliance with subpoena. The government states the following:
1.

In its supplemental response to Schocks notice of compliance, the

government requested that, because Schock has the burden to establish the applicability
of the attorney-client or work-product privilege, which are strictly construed, this Court
order Schock to establish, as federal law requires, the applicability of a privilege
document-by-document, Matter of Klein, 776 F.2d 628, 632 (7th Cir. 1985), and that
should Schock persist in asserting a privilege, the government be allowed to file a reply.
For the following reasons, the government respectfully requests that the Court grant the
government leave to file such a reply:
2.

First, in his reply in support of notice of compliance, Schock alleges, for

the first time, the specific bases for his assertions that certain documents are protected
by the attorney-client and work-product privilege. Specifically, he declares that certain

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communications and documents involving third parties such as staffers and

consultants, even communications that only involve Schock and a third party, are
privileged because the third parties are agents or consultants of Mr. Schocks (and not
his counsel) (Reply at 8) and certain communications are privileged because they were
(involving Mr. Schock) by one of his agents seeking legal advice. (Id.) Because the
government has not had an opportunity to respond to these sweeping and what appear
to be unprecedented claims, which Schock has the burden to establish in the first
instance, and because the Court has allowed Schock to supplement his claims in an ex
parte filing, the government respectfully requests that the Court allow the government
to reply and provide its specific objections to Schocks assertions of privilege.
3.

Second, the government requests leave to reply in order to provide the

Court with the controlling law, including circuit and Seventh Circuit law, applicable to
the claims Schock has now made. His assertions rest almost entirely on the argument
that Rule 26 of the Federal Rules of Civil Procedure governs the scope of the
work-product privilege in the context of a federal grand jury subpoena, and that the
scope of such privilege and the attorney-client privilege covers not only documents
prepared by an attorney or an attorneys agent, but also communications from and
documents prepared by or for a party or for a partys representative or a third-party
agent of the client (Reply at 7, 11), which Schock alleges include himself (the party
or client) and his non-attorney staff and consultants (his agents). In support of these
claims as to the scope of the attorney-client or work-product privilege in the context of a
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grand jury matter, Schock cites exclusively to cases involving civil litigation, including
an unreported, non-precedential opinion in a civil matter from this this district. (Reply at
5) (citing Schlicksup v. Caterpillar. Inc., 2011 WL 11737159 (C.D. Ill. Aug. 19, 2011)
(Cudmore, J.)).
4.

Schock, however, fails to acknowledge controlling circuit and Seventh

Circuit law that squarely reject his claims: Nowhere is the publics claim to each
persons evidence stronger than in the context of a valid grand jury subpoena. In re
Sealed Case, 676 F.2d 793, 806 (D.C. Cir. 1982) (citing Branzburg v. Hayes, 408 U.S. 665, 688
& n.26 (1972)). Because the [attorney-client] privilege is in derogation of the search for
the truth, it is construed narrowly. Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007).
Thus, ordinarily, statements made by a client to his attorney in the presence of a third
person do not fall within the privilege, even when the client wishes the communication to
remain confidential, because the presence of the third person is normally unnecessary for
the communication between the client and his attorney. Id. (emphasis added); see also
Matter of Walsh, 623 F.2d 495 (holding that attorney was required to testify before the
grand jury concerning meetings at which third parties were present because [t]he
attorney-client privilege does not protect such conversations with non-clients.).
However, there is an exception to the general rule that the presence of a third party
will defeat a claim of privilege when that third party is present to assist the attorney in
rendering legal services. Jenkins, 487 F.3d at 490-91.

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5.

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In addition, as to the scope of the work-product privilege, the Seventh

Circuit has made clear that [n]either Rule 26 of the Federal Rules of Civil Procedure
nor Rule 16 of the Federal Rules of Criminal Procedure applies to grand jury
proceedings. In re Special September 1978 Grand Jury, 640 F.2d 49, 61 n.17 (7th Cir. 1980);
In re Grand Jury Subpoena, 510 F.3d 180, 185 (2d Cir. 2007) (Rule 26(b)(3) of the Federal
Rules of Civil Procedure obviously does not apply to grand jury subpoenas.). The
Seventh Circuit has also made clear that [t]he work-product privilege protects
documents prepared by an attorney or the attorneys agent to analyze and prepare the
clients case. United States v. Smith, 502 F.3d 680, 689 (7th Cir. 2007) (emphasis added). It
is not up to the client to determine whom to make an agent for the purposes of asserting the
work-product privilege; the privilege extends to the work of the attorney's agents, not the
client's agents. Id. (emphasis added); see also In re Special September 1978 Grand Jury, 640
F.2d at 49 (the work product doctrine may encompass any document prepared in
anticipation of litigation by or for the attorney.) (emphasis added). Finally, in the grand
jury context, [t]he attorney-work doctrine generally does not shield from discovery
documents that were not prepared by the attorneys themselves or their agents, in the
course of or in anticipation of litigation. In re Grand Jury Subpoenas Dated October 22,
1991, and November 1, 1991, 959 F.2d 1158, 1166 (2d Cir. 1992).
6.

Nowhere in Schocks sweeping assertions of attorney-client and

work-product privilege does he candidly acknowledge any of the controlling authority

in this circuit that directly forecloses those claims. Instead, he invites error by entirely
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ignoring that authority. This was no mistake or oversight by an uncounseled litigant,

nor is it the first time Schock has done so. It is yet another example of a course of
conduct by Schock alone that has led to the execution of a search warrant at his
campaign office and an order to show cause why he should not be held in civil
contempt. It has also unfortunately, but unavoidably, led to the conclusion that Schock
has not only refused, but deceptively refused, to engage in good faith with the
government and comply with his obligations under this Courts orders. The
government therefore respectfully requests that it be allowed to file a reply to provide
the Court with the controlling law applicable to the governments specific objections to
Schocks assertions of privilege.
7.

Third, in order to (a) reduce the number of documents that this Court

must actually review for a privilege claim; (b) exhaust other means of obtaining
responsive documents given Schocks refusal to produce them; and (c) establish a
substantial need for any documents in the event this Court finds any document to be
covered by the work-product privilege, the government has requested various
documents from certain third parties identified in Schocks privilege log. The
government has received some documents and expects to receive additional documents
within the next two weeks. Those requests have apparently led Schock to withdraw his
assertion of attorney-client privilege as to three documents identified in Rows 30-32 of
the privilege log. In fact, coincidentally today, and only after the government requested
the documents from a third party, Schock advised the government that, upon further
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consideration and review, (See Attachment 1 filed under seal), he was withdrawing his
assertion of attorney-client privilege as to those documents involving the same third
party. This is the type of gamesmanship, in first refusing to produce and then partially
producing responsive documents, that Schock has engaged in from the outset of this
litigation. If allowed to file a reply, the government will advise the Court of the specific
documents it has obtained, the specific objections to Schocks assertions of privilege as
to other documents, and the substantial need for any documents the government has
been unable to obtain through other means.
8.

Fourth, Schock has refused to produce more than 3,000 pages of

documents, not just 72. Rather than simply produce 2,944 pages of those non-privileged
documents (more than 25% of the more than 10,000 documents he produced only after
having been ordered to show cause), he persists in the assertion that they are not
responsive to the grand jury subpoena and his agreement with the government because
they are not financial records, although they may contain references to financial
transactions (Reply at 20) and requests that this Court review all of these records for
responsiveness. In yet another act of inartful grandstanding, Schock declares himself a
victim of a public filing and a seemingly endless investigation. (Reply at 4, 21) He
also asserts a privileged-citizen status, not fully subject to the grand jury or the rule of
law, by further declaring, again contrary to controlling Supreme Court authority, that
one grand jury subpoena issued to him should end the matter and that the issuance
of an additional subpoena would be improper. (Reply at 21)
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9.

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There is no reason to subject this Court to a tortured review of 2,944

non-privileged documents and a determination of whether such documents, which

may contain references to financial transactions, fall within the scope of a grand jury
subpoena that commands the production of: [a]ny and all financial, campaign or
political fundraising, and accounting records, in electronic form or otherwise, that in
any way relate to Congressman Aaron Schock or Aaron Schock individually, and
[a]ny and all financial records, in electronic form or otherwise, that relate to
Congressman Aaron Schocks Members Representational Allowance, including but not
limited to any records relating to receipt of funds, expenditures, reimbursements and
budgets and any and all documents and records relating to Aaron Schocks travel,
including but not limited to itineraries, calendars, schedules, modes of transportation,
costs, and reimbursements. (See Courts Enforcement Order) What Schock fails to
disclose to the Court is that while he refuses to produce 2,944 documents which may
contain references to financial transactions as non-responsive, he has already produced
to the government other documents that actually contain references to financial
transactions. The attached document is just one example. (See Attachment 2 filed under
seal) There are numerous other documents of the same type that Schock has produced.
Thus, Schocks distinction between responsive and non-responsive documents that
contain references to financial transactions appears indefensible and yet another act
of gamesmanship.

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Moreover, even assuming one or more of the 2,944 documents could

arguably be construed as non-responsive, it would be entirely appropriate to issue a

second subpoena to remove any doubt and resolve this dispute without subjecting this
Court to a review of non-privileged documents. [T]he public . . . has a right to every
mans evidence, except for those persons protected by a constitutional, common-law, or
statutory privilege. United States v. Nixon, 418 U.S. 683, 709 (1974). And the grand jury
and the government have no obligation to establish a need for evidence. Matter of
Klein, 776 F.2d at 632. As the Seventh Circuit has made clear:
A grand jury tracks down leads, and even innocent-looking information
may be useful. If the grand jury has some information on a subject, it may
seek more to confirm or contradict what it has. How much information is
enough is a matter for the judgment of the grand jurors and the
prosecutors rather than the courts.
Id.; see also United States v. R. Enterprises, Inc., 498 U.S. 292, 300 (1991) (a grand jury
subpoena issued through normal channels is presumed to be reasonable, and the
burden of showing unreasonableness must be on the recipient who seeks to avoid
compliance.). Thus, the government respectfully requests leave to reply to establish
that the 2,944 pages of documents are indeed responsive in light of Schocks production
of other records and that this Courts review of such documents is unnecessary.
11.

Finally, the only thing exceptional or endless about what would otherwise

be an ordinary, sealed grand jury matter is Schocks request (and his alone) to unseal
the record in this particular grand jury matter, engage in public grandstanding
thereafter, and endlessly refuse to produce responsive documents and comply with this
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Courts orders and his agreement with the government. As the government stated at the
outset of this litigation nearly six months ago, the governments sole interest is
obtaining responsive records pursuant to a subpoena that the grand jury has an
absolute right to issue. This litigation would have ended long ago had Schock simply
complied with his lawful obligations and produced responsive records.
12.

For the foregoing reasons, the government respectfully requests that its

motion for leave to file a supplemental reply to Schocks notice of compliance be

allowed. To allow the government additional time to determine what documents may
be obtained from other sources, the government requests until October 20, 2015, to file
its reply.

Respectfully submitted,
JAMES A. LEWIS
UNITED STATES ATTORNEY

BY:

s/Timothy A. Bass
TIMOTHY A. BASS, Bar No. MO 45344
Assistant United States Attorney
318 S. Sixth Street
Springfield, Illinois 62701
Phone: 217/492-4450
Fax: 217/492-4512
tim.bass@usdoj.gov

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CERTIFICATE OF SERVICE
I hereby certify that on the 6th day of October 2015, I electronically filed the
foregoing with the Clerk of Court using the CM/ECF system which will send
notification of such filing to the following:

Counsel of record

s/Timothy A. Bass
TIMOTHY A. BASS, Bar No. MO 45344
Assistant United States Attorney
318 S. Sixth Street
Springfield, Illinois 62701
Phone: 217/492-4450
Fax: 217/492-4512
tim.bass@usdoj.gov

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