D. Md. Discusses Split Re Burden of Proof for Crime-Fraud Exception to Attorney-Client Privilege
Per Koch v. Specialized CAre Services, Inc., 437 F.Supp.2d 362 (D.Md. September 23, 2005):
In order for the crime-fraud exception to apply, it is not necessary, of course, for the Court to find that the "injurious falsehood or fraud" indeed occurred. The Court does not reach the ultimate issue at this juncture. Rather, after a party challenging the privilege succeeds in its request for in camera review, the party must make a prima facie showing that the crime-fraud exception applies.
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The majority of federal circuits apply the most stringent test, which requires the party seeking disclosure to present enough evidence to support a verdict in favor of the party making the claim. See Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1220 (4th Cir.1976)("[W]hile a prima facie showing need not be such as to actually prove the disputed fact, it must be such as to subject the opposing party to the risk of non-persuasion if the evidence as to the disputed fact is left unrebutted."); In re Grand Jury Proceedings, 401 F.3d 247, 251 (4th Cir.2005); In re International Systems and Controls Corp. Securities Litigation, 693 F.2d 1235, 1242 (5th Cir.1982) . . .
In comparison, in the Seventh Circuit, the moving party must show enough evidence to require explanation, not enough to support a verdict in favor of the person making the claim. See United States v. Davis, 1 F.3d 606, 609 (7th Cir.1993). If the moving party satisfies its burden, the adverse party, who has superior access to the documents and who is in the best position to explain the evidence, has the burden of explanation. Matter of Feldberg, 862 F.2d 622, 626 (7th Cir.1988).
Other circuits use a probable cause standard, requiring evidence sufficient for a prudent person to have a reasonable basis to suspect a crime or a fraud has occurred. See, e.g. In re John Doe, 13 F.3d 633, 637 (2d Cir.1994); In re Antitrust Grand Jury, 805 F.2d 155, 166 (6th Cir.1986); In re Grand Jury Proceedings, 417 F.3d 18, 23 (1st Cir.2005).