UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

v. : No. 06-CR-319-03
: (William H. Yohn, Jr., J.)
VINCENT J. FUMO, :
FILED ELECTRONICALLY
Defendant. :

MOTION OF DEFENDANT FUMO

TO QUASH GOVERNMENT’S TRIAL SUBPOENA DUCES TECUM
ADDRESSED TO HIS FORMER COUNSEL, SPRAGUE & SPRAGUE
Pursuant to Fed.R.Crim.P. 17(c) and the Sixth Amendment, the defendant,
Vincent J. Fumo, moves to quash the subpoena duces tecum delivered on Saturday
afternoon, September 7, 2008, to the law firm of Sprague & Sprague, requiring the
production of extensive documents and files at 9:30 a.m. on Monday, September 8,
2008. In support of this motion, the defendant states:
1. On February 6, 2007, defendant Fumo was charged in 139 counts of a 264-
page, 141-count Indictment. Offenses charged include three separate conspiracies under
18 U.S.C. § 371; three separate mail and wire fraud schemes, 18 U.S.C. §§ 1341, 1343;
two counts of causing false tax filings, 26 U.S.C. § 7206(2); and obstruction of justice,
18 U.S.C. §§ 1512, 1519.
2. Trial is due to begin with jury selection today, Monday, September 8, 2008.
3. On Friday, September 5, 2008, the defendant voluntarily disclosed his inten-
tion to rely, as part of his defense on certain counts, on legal advice he had received
from his former counsel at the law firm of Sprague & Sprague -- Richard A. Sprague,
Esq., in particular -- prior to February 18, 2005. A copy of the letter making this
disclosure is attached as Exhibit A. The defendant’s waiver of attorney-client privilege
was limited by time and subject matter.

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 4. On the afternoon of Saturday, September 6, 2008, the government e-mailed a
subpoena duces tecum to the "Custodian of Records" at Sprague & Sprague, demanding
that this person appear and testify in Courtroom 17A at 9:30 a.m. on September 8, 2008.
At or about the same time, government counsel e-mailed a copy of the subpoena to the
defendant’s present counsel. A copy of the subpoena is attached as Exhibit B. The
defendant is not aware whether this subpoena has been served, or whether the Sprague
firm may have accepted delivery or service by e-mail.
5. The subpoena is "unreasonable [and] oppressive," in violation of Rule 17(c),
in that:
a. The subpoena could not under any circumstances be complied with during
the time allowed;
b. The subpoena on its face amounts to a prohibited "fishing expedition" or
improper attempt at discovery, rather than a request for specified material that is
intended to be offered and would be admissible as evidence;
c. The subpoena fails to reflect any good faith attempt to narrow its scope to
matters related to the stated subject-matter of the defendant’s privilege waiver, but
rather calls on its face for production of material as to which Sen. Fumo has not waived
the attorney client privilege; and
d. The subpoena’s overbreadth violates the defendant’s Sixth Amendment
right to counsel, by demanding disclosure of attorney work product, including extensive
documentation of both pre- and post-indictment preparation and theorizing.
6. The extent to which the subpoena exceeds any proper application of Rule
17(c) and any reasonable interpretation of the scope of the defendant’s waiver of
privilege requires that the subpoena be quashed and not merely modified.

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 WHEREFORE, for the foregoing reasons, as elaborated in the accompanying
preliminary memorandum of law, the government’s subpoena duces tecum should be
quashed.

Respectfully submitted,
Dated: September 8, 2008
s/Peter Goldberger
PETER GOLDBERGER By: DENNIS J. COGAN
PA Atty. No. 22364 DENNIS J. COGAN & ASSOC.
50 Rittenhouse Place 2000 Market St., suite 2925
Ardmore, PA 19003 Philadelphia, PA 19103
(610) 649-8200 (215) 545-2400
fax: (610) 649-8362 fax: (215) 988-1842
e-mail: peter.goldberger@verizon.net e-mail: cogan2128@aol.com

STEPHEN ROBERT LaCHEEN

LaCheen Dixon Wittels & Greenberg, LLP
1429 Walnut Street, 13th Floor
Philadelphia, PA 19102
(215) 735-5900
fax: (215) 561-1860
e-mail: slacheen@concentric.net

Attorneys for Defendant Vincent J. Fumo

CERTIFICATE OF SERVICE
On September 8, 2008, I served a copy of the foregoing document through the
Court’s electronic filing system on the attorneys for the government and on counsel for
the affected prior counsel, addressed as follows:
John J. Pease, Esq. Mark B. Sheppard, Esq.
Robert A. Zauzmer, Esq. Sprague & Sprague
Assistant U.S. Attorneys 135 So. 19th St., Suite 400
615 Chestnut Street, suite 1250 Philadelphia, PA 19103
Philadelphia, PA 19106

__s/Peter Goldberger___________

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 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

v. : No. 06-CR-319-03
: (William H. Yohn, Jr., J.)
VINCENT J. FUMO, :
FILED ELECTRONICALLY
Defendant. :

MEMORANDUM IN SUPPORT OF DEFENDANT FUMO’S MOTION

TO QUASH GOVERNMENT’S TRIAL SUBPOENA DUCES TECUM
ADDRESSED TO HIS FORMER COUNSEL, SPRAGUE & SPRAGUE
The defendant, Vincent J. Fumo, has moved pursuant to Fed.R.Crim.P. 17(c) and
the Sixth Amendment to quash the subpoena duces tecum delivered on Saturday
afternoon, September 7, 2008, to the law firm of Sprague & Sprague. The subpoena
purports to require the production of extensive documents and files at 9:30 a.m. on
Monday, September 8, 2008. The motion to quash should be granted.
Senator Fumo is charged in 139 counts of a 264-page, 141-count Indictment.
The offenses charged include three separate conspiracies under 18 U.S.C. § 371; three
separate mail and wire fraud schemes, 18 U.S.C. §§ 1341, 1343; two counts of causing
false tax filings, 26 U.S.C. § 7206(2); and obstruction of justice in violation of 18
U.S.C. §§ 1512(b), 1512(c), and 1519. Trial is due to begin with jury selection today,
Monday, September 8, 2008.
On Friday, September 5, 2008, the defendant voluntarily disclosed to the prose-
cutors his intention to rely, as part of his defense on certain counts, on legal advice he
had received from his former counsel at the law firm of Sprague & Sprague prior to

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February 18, 2005.1 A copy of the letter making this disclosure is attached to his
motion. In that letter, he stated, in pertinent part:
At trial, in Senator Fumo’s defense with respect to the various charges
under 18 U.S.C. §§ 1512 and 1519, we intend to rely, in part, on legal
advice that Mr. Fumo received or understood he had received.
Specifically, at all relevant times up to February 18, 2005, when the
search warrant was served, Mr. Fumo relied upon advice given to him by
his long-time attorney and confidant, Richard A. Sprague, that it was
permissible under federal law not to retain any document that was not
under subpoena. The defense understands that within the limits of this
stated time frame and subject matter, our reliance on the advice Senator
Fumo received waives the defendant’s attorney-client privilege with Mr.
Sprague, such that you may issue trial subpoenas and conduct further
searches of seized evidence previously deemed privileged.

Motion, Exh. A. The defendant’s waiver of attorney-client privilege was thus expressly
limited by time and subject matter.
On the afternoon of Saturday, September 6, 2008, the government e-mailed a
subpoena duces tecum to the "Custodian of Records" at Sprague & Sprague, demanding
that this person appear and testify in Courtroom 17A at 9:30 a.m. on September 8,
2008.2 At or about the same time, government counsel e-mailed a copy of the subpoena
to the defendant’s present counsel. In that subpoena, the prosecutors demanded that the
records custodian bring to court two categories of material in any of three subject areas.
The types of material are: (1) all documents "concerning, reflecting, or relating to"
communications between Senator Fumo and his former counsel, and (2) all documents
"concerning, reflecting, or relating to" legal research, legal opinions, and legal advice
provided to Senator Fumo. The three subject areas covered include not only "[d]ocu-
ment retention and destruction policies, practices, and procedures" and "[f]ederal

_____________________
1 The defendant could properly have resisted making any pretrial disclosure of his
theory of defense. In the interest of cooperating with efficient management of this
unwieldy trial, he took a less strict position.
2 The defendant is not aware whether this subpoena has been served pursuant to Rule
17(d), or whether the Sprague firm may have waived service and accepted delivery or
service by e-mail.
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criminal laws pertaining to obstruction of justice," but also the entirety of "[t]he federal
criminal investigation that led to the current charges in" this case. Moreover, both cate-
gories of documents, in all three subject areas, are to be produced "[f]or the period"
from February 20, 2003, through September 30, 2007; Motion, Exh. B -- a date nearly
eight months after the return of the indictment and more than two and a half years after
the termination date given by the defense in its letter.
The government’s subpoena so far exceeds any reasonable bounds of a good
faith use of Fed.R.Crim.P. 17(c) as to require its quashal rather than a mere modifica-
tion. Rule 17(c) governs subpoenas duces tecum in federal criminal cases. It deals in a
single paragraph with two types of subpoenas. One is the subpoena to appear at trial
with documents (as well as to testify, or not; both are allowed). The other, which can be
issued only by leave of court ("the court may direct"), may require production of
voluminous documents "before the court" prior to trial -- or after trial begins but prior to
the time of testimony -- "to be inspected by the parties and their attorneys" (not ex parte,
in other words), in order to save trial time and delay. See 2 C.A. Wright, Federal
Practice & Procedure: Criminal § 274 (3d ed. 2000).
Since the government did not seek leave of court for early production under the
third sentence of Rule 17(c), it follows that the present subpoena is intended to be of the
ordinary type.3 In United States v. Cuthbertson, 630 F.2d 139, 145 (3d Cir. 1980), the
Third Circuit approved a modified adaptation of the third-sentence type of subpoena,
where documents can be ordered produced to the judge prior to their use at trial, but
without their being disclosed to the party subpoenaing them, in order to facilitate the
litigation of a motion to quash or modify.

_____________________
3 The fact that the paper on its face gives the date of the first day of trial does not make
it a third-sentence subpoena. It is common for trial subpoenas to be issued with a return
date and time identical with the commencement of the trial, which obligates the person
to appear, on call, whenever during trial the evidence is to be offered. Although no such
accommodation language appears on the face of this subpoena, the same idea may have
been communicated informally to the custodian of records.
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 A Rule 17(c) subpoena is not a discovery device and cannot be used as such,
United States v. Nixon, 418 U.S. 683, 699-700 (1974), or to engage in a "fishing
expedition." See United States v. Dent, 149 F.3d 180, 191 (3d Cir. 1998); Cuthbertson,
630 F.2d at 192; see generally Gov’t Mem. in Supp. of Motion to Quash (Doc. 237), at
4-7 (filed Aug. 8, 2008). Only material "admissible as evidence" can be subpoenaed.
United States v. Cuthbertson (II), 651 F.2d 189, 195 (3d Cir. 1981).4 This subpoena on
its face flouts the established restrictions. Its form is patently that of a grand jury or
discovery subpoena, not a subpoena for specific items admissible at trial. By virtue of
its breadth and lack of specificity, attempting to reach documents and files of all sorts if
they merely "relate to" the stated subject matters, encompassing a vast amount of work
product and other opinion, and hearsay, regardless of whether it even ever came to
Senator Fumo’s attention, this subpoena badly fails the "evidentiary" test.
Even more important, the subpoena fails to reflect any good faith attempt to
narrow its scope to matters within the stated subject-matter of the defendant’s privilege
waiver. Instead, the subpoena calls on its face for production of material as to which
Sen. Fumo has not waived the attorney client privilege. As is clear from his letter, the
defendant understands that "by asserting ‘claims or defenses that put his or her
attorney’s advice in issue in the litigation,’" he waives the privilege pro tanto.
However, the waiver applies only "as to that issue." United States Fire Ins. Co. v.
Asbestospray, Inc., 182 F.3d 201, 212 (3d Cir. 1999) (Alito, J.), citing Livingstone v.
North Belle Vernon Borough, 91 F.3d 515, 537 (3d Cir. 1996). In Livingstone, the
Court found no error in a ruling allowing a civil plaintiff’s former criminal defense

_____________________
4 Under that case, a Rule 17(c) subpoena may properly issue for specified impeachment
material, but may not require its production before trial under the third sentence of the
Rule, as such material does not ripen into "evidence" until the witness testifies. See also
Nixon, 418 U.S. at 701. In Cuthbertson, the Court thus held that the district court had
properly quashed the subpoena to the extent that it required pretrial disclosure, but
allowed production under that subpoena at trial, after the witness testified. 630 F.2d at
145.
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attorney, who had negotiated on her behalf a certain release in connection with the
dismissal of the criminal case, to be deposed and then questioned at a hearing about
whether the client understood the release, after she later claimed she had signed it invol-
untarily. The Court of Appeals ruled that it would be "unfair to allow her to make this
claim," without disclosing "her attorney’s version of the relevant events." Id. at 537
(emphasis added). The Court "emphasize[d] that this waiver is a limited one." Id. 537
n.37 (Pollak, J.). It applies "‘only as to information for which the [other party] had
‘shown a true need and without which they would be unfairly prejudiced ....’" Id.
(quoted source omitted). Of course, a party asserting privilege cannot narrow the
waiver to a particular document if in fairness, that document raises questions about the
whole of a certain transaction. In that case, within the bounds of the applicable
discovery rule, all communications concerning that transaction may be disclosed. See
Glenmede Trust Co. v. Thompson, 56 F.3d 476, 486-87 (3d Cir. 1995). Even in the
broad context of civil discovery, however, where the very different standard of
Fed.R.Civ.P. 26(b)(1) applies, rather than Criminal Rule 17(c), a mere showing of
relevance cannot expand the scope of a waiver of attorney-client privilege. See Rhone-
Poulanc Rorer, Inc. v. Home Indemnity Co., 32 F.3d 851, 861-65 (3d Cir. 1994).
Here, the "issue" as to which Senator Fumo will rely (in part) on the advice of
counsel is the permissibility of continuing or intensifying a policy of non-retention of e-
mail, under circumstances which applied prior to February 18, 2005. The entire pre-
and post-indictment file of his criminal defense lawyers, containing everything so much
as "relating to" the "federal criminal investigation that led to the current charges" --
which would be the entirety of their file -- goes wildly beyond that "subject," the same
"transaction" or "that issue." Instead, the government’s subpoena, as framed or as it
might be "modified," would sweep so broadly as to utterly destroy the constitutionally
protected attorney-client relationship guaranteed by the Sixth Amendment. For
example, it openly demands disclosure of attorney work product, including extensive

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documentation of both pre- and post-indictment preparation and theorizing. Yet there is
not even a pretense of specificity in the subpoena’s description of documents to be
produced, pointing to anything which would be admissible at the government’s behest
at trial to prove any alleged obstructive intent or lack of good faith.
In all these ways, the subpoena addressed to Sprague & Sprague is "unreasonable
[and] oppressive," in violation of Rule 17(c). It cannot be modified; it would have to be
rethought and rewritten entirely. That is a task for the government, not for the Court.
Accordingly, the subpoena must be quashed.

Respectfully submitted,
Dated: September 8, 2008
s/Peter Goldberger
PETER GOLDBERGER By: DENNIS J. COGAN
PA Atty. No. 22364 DENNIS J. COGAN & ASSOC.
50 Rittenhouse Place 2000 Market St., suite 2925
Ardmore, PA 19003 Philadelphia, PA 19103
(610) 649-8200 (215) 545-2400
fax: (610) 649-8362 fax: (215) 988-1842
e-mail: peter.goldberger@verizon.net e-mail: cogan2128@aol.com

STEPHEN ROBERT LaCHEEN

LaCheen Dixon Wittels & Greenberg, LLP
1429 Walnut Street, 13th Floor
Philadelphia, PA 19102
(215) 735-5900
fax: (215) 561-1860
e-mail: slacheen@concentric.net

Attorneys for Defendant Vincent J. Fumo

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