Here in the land of appellate law, there’s nothing more we like than diving into an area of dusty, obscure legal procedure. The land of ancient writs is one of those areas, and last week the First Circuit issued one of the more obscure of those ancient writs – an “advisory mandamus.” In re Grand Jury Subpoena, No. 18-1464 (1st Cir. Nov. 21, 2018).
A federal grand jury subpoenaed records from the Rhode Island Department of Education and Training. The Department moved to quash to the extent it sought to compel the production of documents containing confidential communications between its staff and legal counsel. The district court (Smith, C.J.) denied the motion and ordered the Department to hand over the communications, holding that, as a categorical matter, the attorney-client privilege doesn’t shield communications between government lawyers and their clients from a federal grand jury. The court declined to certify the issue for appeal under 28 U.S.C. § 1292(b),