DRUMMOND COMPANY, INC., Plaintiff, v. Terrence P. COLLINGSWORTH, individually and as the agent of Conrad & Scherer, LLP; and Conrad & Scherer, LLP, Defendant CIVIL ACTION NUMBER: CV-2:11-CV-3695-RDP United States District Court, N.D. Alabama, Southern Division Signed October 25, 2018 Counsel Benjamin T. Presley, H. Thomas Wells, III, William Anthony Davis, III, Starnes Davis Florie LLP, Birmingham, AL, Sara E. Kropf, Law Office of Sara Kropf PLLC, Washington, DC, for Plaintiff. Bradley J. Smith, Eric D. Bonner, John W. Clark, Jr., Clark Hair & Smith PC, Birmingham, AL, Terrence P. Collingsworth, International Rights Advocates, Washington, DC, for Defendant Terrence P. Collingsworth. Bradley J. Smith, Eric D. Bonner, John W. Clark, Jr., Clark Hair & Smith PC, Amy Kay Steiner, Michael Sansbury, Robert K. Spotswood, William Thomas Paulk, II, Spotswood Sansom & Sansbury LLC, Birmingham, AL, Albert L. Frevola, Jr., Conrad & Shcerer LLP, Fort Lauderdale, FL, for Defendant Conrad & Scherer, LLP. Brown, T. Michael, Special Master REPORT AND RECOMMENDATION REGARDING CLAIMS OF PRIVILEGE OVER DOCUMENTS LOGGED AS “BUCKET 2” ON DEFENDANTS' PRIVILEGE LOGS *1 1. On May 28, 2014, T. Michael Brown was appointed as Special Master pursuant to the Order of the Honorable R. David Proctor. (Doc. 129). The Court ordered the Special Master to oversee discovery in this matter, including the resolution of all disputes between the Parties with respect to any aspect of discovery. The Court also ordered the Special Master to entertain all motions for relief brought by the Parties concerning discovery, as well as all issues in any pending discovery motions not yet fully adjudicated, and promptly issue written Reports & Recommendations thereon. 2. On February 2, 2015, Plaintiff filed as Renewed Motion for Sanctions (Doc. 174), and on July 23, 2015, Plaintiff filed a Motion for Spoliation Sanctions (Docs. 283, 287).[1] 3. The Court held an evidentiary hearing on September 1, 2, and 3, 2015, during which it considered issues raised in these motions and the question of the applicability of the crime-fraud exception to the work product and attorney client privileges. 4. On December 7, 2015, the Court entered its Memorandum Opinion and Order on the issues presented at the hearing. (Doc. 417) The Court generally found that the crime-fraud exception applied in this case, and that it operates as an exception to the protections afforded by the work product and attorney client privileges to the extent outlined further in the Memorandum Opinion. (Doc. 417) 5. On December 17, 2015, Defendants gave notice that they had filed petitions, pursuant to 28 U.S.C. § 1292(b) and FED. R. APP. 5, for permission to appeal the Memorandum Order with the United States Court of Appeals for the Eleventh Circuit (Doc. 421). In their Notice of Filing, Defendants requested that the Court enter an immediate stay of the case in accordance with the Memorandum Opinion. A panel on the Eleventh Circuit granted the interlocutory appeal on March 10, 2016 as to Defendant Conrad & Scherer LLP under 28 U.S.C. § 1292(b) as to two questions (Doc. 453) (docketed with the Eleventh Circuit at Appeal No. 15-90031-B, General Docket No. 16-11090). On March 16, 2016, a panel on the Eleventh Circuit denied Defendant Collingsworth's petition for permission to appeal the Order (Doc. 457). 6. On April 19, 2016, the Court held a hearing regarding various Motions to Withdraw and other issues. On April 21, 2016, the Court entered an Order (Doc. 467) directing the parties to work with the Special Master to update and review any and all privilege logs. Specifically, the Court ordered the parties to edit the privilege logs as follows: a. To delineate document that are subject to a privilege only held by Conrad & Scherer; b. To delineate document that are subject to a privilege only held by Collingsworth; and c. To delineate document that are subject to a privilege held by both Conrad & Scherer and Collingsworth. *2 7. On June 3, 2016 the Defendants submitted their privilege logs to the Special Master and Plaintiff, having delineated documents into the three “buckets” based on who Defendants believe have standing to assert claims of privilege or work product. (Exhibit A) “Bucket 1” contains documents claimed to be privileged only by Conrad & Scherer. “Bucket 2” contains documents claimed to be privileged only by Terrence Collingsworth. “Bucket 3” contains documents to be claimed privileged by both Conrad & Scherer and Collingsworth. Additionally, “Bucket 0” contains documents that have been removed from the privilege log, either as non-responsive or already in Plaintiff's possession or produced to Plaintiff without redactions. 8. In accordance with the Court's Orders, the Special Master began his in camera review of those documents logged on “Bucket 2” of Defendants' Privilege Logs. 9. The documents in “Bucket 2” are documents on which only defendant Terrence Collingsworth claims a privilege. There is no claim of privilege by defendant Conrad & Scherer to any of the documents in “Bucket 2.” 10. On October 17, 2016, while the Special Master's review of documents logged on Defendants' Privilege Log under “Bucket 2” was ongoing, the Court entered an Order staying the entire case pending the resolution of Conrad & Scherer, LLP's interlocutory appeal. (Doc. 500) 11. On March 23, 2018, the United States Court of Appeals for the Eleventh Circuit issued its opinion affirming part of the Court's December 7, 2015, Memorandum Opinion and Order. (Exhibit B) 12. On April 16, 2018, pursuant to the Court's Order, the Parties filed Parties Joint Report, in which the Parties noted that the interlocutory appeal was still pending, and that the Special Master should refrain from conducting any further review of documents subject to the Special Master's review. (Doc. 508) 13. On May 16, 2018, the Eleventh Circuit issued its mandate. (Doc. 509) 14. On June 15, 2018, Drummond filed a motion seeking to partially lift the stay. (Doc. 513) 15. On July 30, 2018, the Court held a Status Conference in this matter with the Parties and the Special Master to discuss, among other things, the continuation of the Special Master's review of documents listed on the Defendants' Privilege Logs. The Parties and the Court agreed that the Special Master should meet with the Parties to discuss the status of the Special Master's in camera document review and how that review could best resume. 16. On August 24, 2018, the Parties filed an Amended Report of the Parties Planning Meeting, in which they agreed that the Special Master should begin reviewing documents withheld by the Defendants on claims of privilege to determine whether they should be produced to Drummond pursuant to the crime-fraud exception (or for any other reason). (Doc. 523) 17. On August 30, 2018, the Special Master met with the Parties and discussed the current status of the review and requested the Parties consider options and the best way for the Special Master to move forward in reviewing the documents listed on the on the Defendants' Privilege Logs. The Parties agreed that the prior “bucket designations” referenced herein at Paragraph 7 were no longer applicable, and that the Parties would guide the Special Master toward specific sets of documents for review. The Special Master noted that he had completed approximately eighty percent (80%) of his review of “Bucket 2” prior to the October 17, 2016, stay of the litigation. The Parties agreed that since the Special Master had completed a good portion of the review of “Bucket 2,” that it should continue the same until completion. 18. On September 12, 2018, the Court held a Scheduling Conference at which time the Court agreed with the Parties and asked the Special Master to continue and complete its review of “Bucket 2,” and asked the Parties to determine applicable sets of documents for the Special Master to review upon completion of “Bucket 2.” *3 19. The Special Master has now completed his review of “Bucket 2,” and addresses those privilege designations in this Report & Recommendation. 20. This Report & Recommendation is based on the Special Master's review of the documents in “Bucket 2,” the relevant pleading and correspondence from the Parties, and all meetings and discussions with the Parties where specific arguments were made. With regard to the documents listed on Defendants' Privilege Logs under “Bucket 2,” the Special Master finds and recommends as follows: LEGAL FRAMEWORK Attorney-Client and Work Product Privileges, Generally 21. The Supreme Court established the attorney work-product doctrine in Hickman v. Taylor, 329 U.S. 495 (1947). The doctrine was later rearticulated as Rule 26(b)(3) of the Federal Rules of Civil Procedure. Rule 26(b)(3) reads, in part: Ordinarily, a party may not discover document and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the party's attorney ...). But ... those materials may be discovered if: (i) they are otherwise discoverable under rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. FED. R. CIV. P. 26(b)(3)(A). 22. Even if the court allows discovery of such materials, “it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning litigation.” FED. R. CIV. P. 26(b)(3)(B). 23. The burden of establishing that a document qualifies for work product protection falls onto the party invoking the privilege. Freiermuth v. PPG Industries, Inc., 218 F.R.D. 694, 700 (N.D. Ala. 2003). A party can meet this burden by providing a detailed privilege log listing every document withheld, identifying characteristics, and applicable privileges. See FED. R. CIV. P.26(b)(5)(A); Carnes v. Crete Carrier Corp., 244 F.R.D. 694, 698 (N.D. Ga. 2007) (quoting Triple Five of Minn., Inc. v. Simon, 212 F.R.D. 523, 528 (D. Minn. 2002) ) (finding work product applicable where the asserting party “provided detailed privilege logs ... which for each document withheld listed the type of document, the date of creation, the author, the recipient, the subject matter, and the applicable privilege”). 24. The work product privilege protects documents prepared by an attorney if, in light of the nature of the document and the factual situation in the case, the document can be fairly said to have been prepared or obtained due to the prospect of litigation. FED. R. CIV. P. 26(b)(3). Therefore, materials assembled in the ordinary course of business, or for purposes other than litigation, are not protected under the work product doctrine. See Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 684–86 (N.D. Ga. 2012); Ex parte Mobile Gas Serv. Corp., 123 So. 3d 499, 509 (Ala. 2013). 25. Rule 26(b)(3) creates two different types of work product that are protected from discovery: fact work product and opinion work product. Fact work product consists of “documents and tangible things ... prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative.” FED. R. CIV. P. 26(b)(3); U.S. v. Pepper's Steel and Alloys, Inc., 132 F.R.D. 695, 697 (S.D. Fla. 1990). The party seeking discovery of fact work product must show a “substantial need” and “undue hardship” in obtaining the materials or their substantial equivalent. Id.; see also Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1467 (11th Cir. 1984), rev'd on other grounds, 837 F.2d 1550 (11th Cir. 1988). *4 26. Unlike fact work product, which usually consists of actual documents and other tangible materials, opinion work product involves protecting the “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” FED. R. CIV. P.26(b)(3)(B). “[O]pinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.” Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir. 1994)(quoting In re Murphy, 560 F.2d 326, 336 (8th Cir. 1977) ). 27. There are no claims of privilege by defendant Conrad 7 Scherer as to any of the documents referenced in this Report & Recommendation. Articles and Other Third-Party Publications 28. Ordinarily, the work product doctrine does not shield selections and compilations of third-party documents in an attorney's possession from the probative lens of discovery. Hunter's Ridge Golf Co. v. Georgia-Pacific Corp., 233 F.R.D. 678, 681 (M.D. Fla. 2006) (citing Freiermuth, 218 F.R.D. 694, 700). 29. In some jurisdictions, however, opinion work product protection may be awarded for “something as subtle as the act of selecting or ordering documents because this may reflect an attorney's opinion as to the significance of those documents in the preparation of the case.” In re Trasylol Products Liab. Litig., No. 08-MD-1928, 2009 WL 936597, at *3 (S.D. Fla. Apr. 7, 2009) (citing Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985) ). Attorneys wishing to protect such compilations of documents from discovery should make a “selection-based opinion work product objection.” Chase v. Nova Se. Univ., Inc., No. 11-61290-CIV, 2012 WL 204173, at *1 (S.D. Fla. Jan. 24, 2012); see also Trasylol, 2009 WL 936597 at *3–4. 30. Within the narrowness of this exception, the party invoking the “selection-based” work product privilege must demonstrate an imminent, non-speculative danger that its thought processes directly related to pending litigation will be exposed through the disclosure of the requested documents. See Hunter's Ridge, 233 F.R.D. at 682–83; Trasylol, No. 08-MD-1928, 2009 WL 936597, at *1, *3–4; Platypus Wear, Inc. v. Clarke Modet & Co., No. 06-20976-CIV, 2007 WL 4557158, at *6 (S.D. Fla. Dec. 21, 2007). 31. The first circuit to recognize that a compilation of documents culled in preparation for litigation could reveal the attorney's strategy and thus should be protected as opinion work product was the Third Circuit in Sporck v. Peil.In Sporck, the Third Circuit determined that “the selection and compilation of documents by counsel ... in preparation for pretrial discovery falls within the highly-protected category of opinion work product.” 759 F.2d at 316. The case involved a lawyer's preparation of a client for deposition by providing the client with a selection of documents produced in discovery. Id. at 313. The lawyer believed that the selected documents, culled from a body of hundreds of thousands of documents, “represented, as a group, counsel's legal opinion as to the evidence relevant both to the allegations in the case and the possible legal defenses.” Id. However, none of the individual documents qualified as work product. At the deposition, the lawyer for the other side requested the documents used to prepare the deponent, and the other side refused. Id. at 314. In deciding the motion to compel, the court found: In selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his understanding of the case. Indeed, in a case such as this, involving extensive document discovery, the process of selection and distillation is often more critical than pure legal research. There can be no doubt that at least in the first instance the binders were entitled to protection as work product. *5 Id. at 316 (quoting James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982) ). The court went on to rely on Hickman in finding that how a lawyer compiles and organizes documents can be protected as opinion work product. 329 U.S. at 510-511 (“Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference”). 32. Although some jurisdictions have followed Sporck and extended the work product privilege to compilations of documents prepared by attorneys in anticipation of litigation, the Eleventh Circuit has yet to endorse this practice. Indeed, cases that have considered issues similar to those of Sporck “have demonstrated a good deal of disagreement as to the application of such a ‘selection-based opinion work product’ privilege, and the result has been the production of a multitude of distinguishing principles.” Trasylol, 2009 WL 936597 at *3. Importantly, the foremost of these principles has been that “the mere selection and grouping of information by counsel for a deponent to review does not automatically transform otherwise discoverable documents into work product.” Id. (quoting In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1018 (1st Cir. 1988) ). The court in In re San Juan went on to note that “not every item which may reveal some inkling of a lawyer's mental impressions, conclusions, opinions, or legal theories is protected as opinion work product.” 859 F.2d at 1015. Instead, the Second Circuit has noted that the issue in both Sporck and Shelton was: [N]ot so much whether the work product doctrine shielded counsel from producing certain documents, for it appears they had been produced in the course of discovery; rather, the issue was whether counsel was obliged to identify from voluminous discovery materials those discrete documents that the attorney had selected for review with his client in advance of deposition, or that an attorney specifically recalled as existing in her client's files. The courts ruled that such narrowly focused inquiries constituted impermissible intrusions into attorneys' thought processes in preparing their clients' defenses. Hunter's Ridge, 233 F.R.D. at 682 (quoting In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379, 385 (2d Cir. 2003) ). 33. The Eleventh Circuit has not directly addressed the applicability of the Sporck doctrine; however, federal district courts within the Eleventh Circuit “have recognized the far-reaching effects of the decision, and have crafted a narrower application of the doctrine.” Trasylol, 2009 WL 936597 at *4; see also Hunter's Ridge, 233 F.R.D. at 681; In re Seroquel Products Liability Lit., 2008 WL 215707 (M.D. Fla. 2008). Several courts have required more evidence that the documents are work product, such as “when they were obtained, whether they were obtained prior to the commencement of the instant suit or how the attorneys went about obtaining the documents. Such information is necessary to make a determination that the work product doctrine should apply.” Hunter's Ridge, 233 F.R.D. at 683. 34. Under this narrower application, “a party asserting an attorney opinion privilege claim must come forward with some evidence that disclosure of the requested documents creates a real, non-speculative danger of revealing counsel's thoughts.” Trasylol, 2009 WL 936597 at *4. Furthermore, the “mere assertion that the production of the documents sought would reveal counsel's thought processes does not come close to meeting that burden.” Chase, 2012 WL 204173 at *2. State of Mind and/or Mental Impressions *6 35. Another circumstance that, when appropriate, justifies discovery of opinion work product is when the attorney's state of mind is directly at issue in the case. See, e.g., Pepperwood of Naples Condo. Ass'n, Inc. v. Nationwide Mut. Fire Ins. Co., No.2:10-cv-753-FtM-36SPC, 2011 WL 4596060, at *4 (M.D. Fla. Oct. 3, 2011) (“[M]ental impressions of [Defendant]'s counsel are directly at issue here, and thus, exceptional circumstances justify invading the opinion work product immunity pertaining to any such documents created as part of the [underlying] litigation.”); Maplewood Partners, L.P. v. Indian Harbor Ins. Co., No. 08-23343-CIV, 2011 WL 3918597, at *7 (S.D. Fla. Sept. 6, 2011) (“Because Defendant seeks to apply the doctrine of at-issue waiver to an issue based on an attorney'sopinions and legal theories rather than his client's, the facts of this case fall within the parameters of those cases applying the at-issue doctrine as a waiver of work product immunity.”) (emphasis in original); Hilborn v. Metro. Grp. Prop. and Cas. Ins. Co., No. 2:12-cv-00636-BLW, 2013 WL 6055215, at *3 (D. Idaho Nov. 15, 2013) (“[O]pinion work product may be discovered and admitted when mental impressions are at issue in a case and the need for the material is compelling.” (quoting Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir. 1992) ) ). 36. Three elements must be satisfied for the at-issue waiver to apply to opinion work product: “(1) assertion of the protection results from some affirmative act by the party invoking the protection; (2) through this affirmative act, the asserting party puts the protected information at issue by making it relevant to the case; and (3) application of the protection would deny the opposing party access to information vital to its defense.” Maplewood Partners, 2011 WL 3918597, at *8. 37. The at-issue waiver of the work product privilege has been applied in the defamation context to allow opinion work product to be discovered. In Am. Dental Ass'n v. Khorrami, the plaintiff, a dental association, sued the defendant-attorney, who was lead counsel in several cases against the plaintiff, for defamation. No. CV 02-3853 DT(CTX), 2003 WL 24141019, at *1 (C.D. Cal. July 14, 2003). The defendant published allegedly defamatory statements in press releases and on his website. Id. The plaintiff requested all documents upon which the defendant based the statements on his website as well as all communications “ ‘put[ting] into doubt’ each of [the] challenged statements.” Id. at *3. The court held that the plaintiff was entitled to the documents that the defendant possessed that would allow the plaintiff to show the defendant acted with “actual malice.”[2] Id. at *4–8. The court concluded that “[p]laintiff's claim presents an exceptional case whereby [d]efendant attorney's subjective mental state—his or her opinion about the truth or validity of a concept—is directly at issue in the action.” Id.at *8 n.5. Since the court also concluded that the plaintiff's need for the documents was particularized, compelling, and could not be satisfied through other discovery, the defendant's opinion work product was discoverable. Id.; see also Stern v. O'Quinn, 253 F.R.D. 663, 677 (S.D. Fla. 2008) (concluding that once the defendant put the subject-matter that was the basis of the allegedly defamatory statement at issue, the plaintiff had the right to discovery regarding the credibility of the subject-matter because “it is simply not fair to allow a party to wield the work-product protection as a sword to cut out the heart of an opposing party's case while simultaneously brandishing it as a shield from disclosure of any Achilles heels”). Crime-Fraud Exception *7 38. The work product privilege protects from discovery an attorney's work product prepared in anticipation of litigation. FED. R. CIV. P. 26(b)(3)(A). The courts have recognized some exceptions to this doctrine, including the crime-fraud exception. See, e.g., United States v. Zolin, 491 U.S. 554, 562–63 (1989); Cox, 17 F.3d at 1422 (stating that the crime-fraud exception extends to work-product protections). This exception allows discovery of communications and work product “made in furtherance of a crime or fraud.” In re Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1226 (11th Cir. 1987). It also “presents one of the rare and extraordinary circumstances in which opinion work product is discoverable.” Cox, 17 F.3d at 1422. The crime-fraud exception requires the disclosure of otherwise privileged communications or materials obtained in the course of the attorney's duties on the client's behalf if made or performed in furtherance of a crime, fraud, or other misconduct fundamentally inconsistent with the basic premises of the adversary system. Id. 39. To determine whether the crime-fraud exception applies to otherwise privileged information, the Eleventh Circuit employs a two-part test as discussed in In re Grand Jury Investigation (Schroeder), 842 F.2d 1223 (11th Cir. 1987). 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 counsel's advice. Id. at 1226. “The first prong is satisfied by a showing of evidence that, if believed by a trier of fact, would establish the elements of some violation that was ongoing or about to be committed.” Id.However, mere allegations of criminal conduct are insufficient, and the “showing must have some foundation in fact....” Id. 40. A party wishing to apply the crime-fraud exception must first offer “a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.” Zolin, 491 U.S. at 572(internal quotation marks and citation omitted). Once such a showing is made, the court may order in camera review of the documents. Id. 41. The second prong of Schroeder is satisfied by “showing that the communication is related to the criminal or fraudulent activity established under the first prong.” In re Grand Jury, 845 F.2d 896, 898 (11th Cir. 1988). This second prong seeks to “identify[ ] communications that should not be privileged because they were used to further a crime or a fraud.” Schroeder, 842 F.2d at 1227. Although different courts use different formulae in determining the degree of relatedness necessary to support this prong, the Eleventh Circuit has said that “the different formulations share a common purpose – identifying communications that should not be privileged because they were used to further a crime or fraud.” Id. Whether a document or communication is “related to” a crime or fraud should not be interpreted “restrictively” but must “relate[ ] to” the crimes or frauds at issue within the meaning of the exception. Id. 42. After a prima facie case of a crime or fraud has been established, the burden of persuasion shifts to the party claiming privilege to provide a reasonable explanation in order to rebut the prima facie showing. Gutter v. E.I. Dupont De Nemours, 124 F. Supp. 2d 1291, 1307 (S.D. Fla. 2000). 43. Whether or not to order in camera review is in the court's discretion, accounting for, “among other things, the volume of materials the district court has been asked to review, the relative importance to the case of the alleged privileged information, and the likelihood that the evidence produced through in camera review, together with other available evidence then before the court, will establish that the crime-fraud exception does apply.” Zolin, 491 U.S. at 572. *8 44. Courts have uniformly held that whether a crime or fraud has actually been committed is not the test for piercing the privilege. See e.g., Gutter, 124 F. Supp. 2d at 1304. Instead “all that is required now is the much lower threshold of establishing a prima facie case,” that is, “evidence, that if believed by the trier of fact, would establish the elements of some violation that was ongoing or about to be committed.” Id.; see also Schroeder, 842 F.2d at 1226. The question is whether there is sufficient evidence to call for an inquiry into privileged material. Matter of Feldberg, 862 F.2d 622, 625–26 (7th Cir. 1988). 45. Under Alabama and federal law, bribery, perjury and subornation of perjury are illegal. It is a crime to offer, promise, or give anything of value to a person testifying in a legal proceeding with the intent of influencing the testimony of that person. 18 U.S.C. § 201; Ala. Code § 13A-10-121(a). Both statutes proscribe any payments to witnesses that exceed actual costs incurred as a result of testifying. Subornation of perjury is a separate crime which consists “in procuring or instigating another to commit the crime of perjury. United States v. Bradberry, 466 F.3d 1249, 1254 (11th Cir. 2006). 46. Fraud on the court also triggers the crime-fraud exception. See In re Sealed Case, 676 F.2d 793, 815–16 & n. 92 (D.C. Cir. 1982) (holding that “[t]he possibility that Company's chairman lied to or attempted to mislead the IRS with his affidavit is enough” to create a prima facie showing and invoke the exception. Although it may “not be sufficient to convict Company's chairman or anyone else of any crimes, ... [a]ll that is required is that the likelihood of a violation be sufficient as a prima facie matter to warrant abridging any work product privilege that would normally attach to documents relating to the possible violation.”); Gutter, F. Supp. 2d at 1313 (finding that the crime-fraud exception applied where DuPont, through its attorneys, misrepresented the existence of certain documents in prior litigation); A.G. v. United States (In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983), 731 F.2d 1032, 1039 (2d Cir. 1984) (“If the advice was sought in furtherance of a fraud that is not necessarily a violation of the criminal code, the communication is nonetheless unprivileged.”). 47. The Court has provided further guidance to the review process in its Memorandum Opinion and Order (Doc. 417). The Court noted that the first prong of a prima facie case of the wrongdoings of fraud on the court, witness bribery and suborning perjury had been established. 48. The Court went on to identify nine (9) different categories of documents that may relate to the alleged crimes or fraud. Those categories include the following, which are discussed in more detail in Section B of the Court's Memorandum Opinion and Order (Doc. 417): (1) Information and Communications Related to Ivan Otero; (2) The Withholding and Redaction of Documents Produced by Defendants in May 2014 which Reflected Payments to El Tigre and Samario; (3) Drafting of Pleadings and Papers that Include Misrepresentations Regarding the Scope, Nature and Extent of Witness Payments; (4) The “Deps in the Can” Email; (5) Paul Wolf; (6) Collingsworth's Disclosure of Payments to El Tigre, Samario, and Blanco to his counsel; (7) Defendants' Consultant; (8) Collingsworth's Communications with Albert van Bilderbeek Regarding Payments to Jaime Blanco; and (9) Defendants' Searches for Documents. *9 49. The Court has not limited the Special Master to only those nine (9) referenced categories in its review, and has stated that the Special Master must review each document to determine if it is in furtherance of a crime or fraud as noted. Moreover, the Court has made it clear that by applying the crime-fraud exception to documents claimed to be privileged, neither the Court, nor the Special Master has made a finding that a crime or fraud actually occurred, but that discovery of these documents are needed to further explore whether a crime or fraud may have actually occurred. FINDINGS 50. The Special Master finds that the following documents constitute attorney work product and/or attorney-client communications, do not facially fall under any exception to the work product protection or attorney-client privilege, and are therefore privileged. As such, the Special Master recommends that the following documents be withheld from production: *10 51. The Special Master finds that the following documents and communications contain sufficient evidence to demonstrate that a prima facie case of witness bribery, suborning perjury, and fraud on the Court has been met. The Special Master also finds that the following documents and communications that were reviewed in camera relate to the alleged criminal or fraudulent activities established under the prime facie case. The Special Master is not making a finding or recommendation, however, that a crime or fraud has in fact occurred. For several of the documents listed below, only a portion of the document or communication relates to the alleged criminal or fraudulent activities; therefore, in such cases, only the portion related to the alleged crime or fraud is to be produced and the remaining portion of the document or communication should be redacted by the Special Master. As such, the Special Master recommends that the following documents, or the applicable portions thereof, shall be produced pursuant to the crime-fraud exception: 52. The Special Master finds that the following documents do not constitute work product or attorney-client communications, or that the claimed privilege has been waived through disclosure to a third-party, and therefore recommends that they be produced: *11 53. The Special Master finds that portions of the following documents and communications constitute attorney work product, and other portions of the same documents or communications are neither work product nor attorney-client communications. As such, the Special Master recommends that the portions constituting work product be redacted by the Special Master from disclosure, and that the remaining portions of the documents, which do not constitute work product or attorney-client communications, be produced. 54. The following entries on the privilege logs indicate that the corresponding documents have already been produced to Plaintiff in either native format or the format as produced to the Special Master: 55. The following documents are not relevant to the parties' dispute or are non-responsive. As such, the Special Master recommends that the following documents be withheld from production: CSPRIV486978 CSPRIV501446 56. The following documents are unreadable in the format provided to the Special Master, and will need to be submitted in an alternative format in order for the Special Master to conduct an in camera review: 57. The following documents contain voluminous compilations of email communications which, based on their contents, do not lend themselves to one categorization. As such, the Special Master finds and recommends that the individual page ranges forming a part of documents (i) CSPRIV524107 to CSPRIV524581 and (ii) CSPRIV525672 to CSPRIV526183, as specified below, be treated or addressed as those documents in the indicated numbered paragraphs herein, as such: a. CSPRIV524107 to CSPRIV524581 i. CSPRIV524107 to CSPRIV524122: Paragraph 52 ii. CSPRIV524123 to CSPRIV524194: paragraph 50 iii. CSPRIV524195 to CSPRIV524209: Paragraph 53 iv. CSPRIV524210 to CSPRIV524263: paragraph 50 v. CSPRIV524264 to CSPRIV524273: paragraph 51 vi. CSPRIV524274 to CSPRIV524283: paragraph 53 vii. CSPRIV524284 to CSPRIV524331: paragraph 51 viii. CSPRIV524332 to CSPRIV524386: paragraph 50 ix. CSPRIV524387 to CSPRIV524416: paragraph 50 x. CSPRIV524417 to CSPRIV524581: paragraph 50 b. CSPRIV525672 to CSPRIV526183 i. CSPRIV525672 to CSPRIV525870: paragraph 50 ii. CSPRIV525871 to CSPRIV525877: paragraph 53 iii. CSPRIV525878 to CSPRIV525983: paragraph 50 *12 iv. CSPRIV525984 to CSPRIV526073: paragraph 51 v. CSPRIV526074: paragraph 51 vi. CSPRIV526075 to CSPRIV526077: paragraph 50 vii. CSPRIV526078 to CSPRIV526097: paragraph 51 viii. CSPRIV526098 to CSPRIV526118: paragraph 50 ix. CSPRIV526119 to CSPRIV526183: paragraph 51 [1] On September 21, 2015, the Court administratively terminated, without prejudice, the Renewed Motion for Sanctions (Doc. 174) and the Motion for Spoliation Sanctions (Docs. 283, 287), allowing them to be refiled following discovery resulting from the Memorandum Opinion. [2] When a public figure sues for defamation, it must show that the defendant acted with actual malice, which is defined as a knowing or reckless falsehood. Michael v. NYP Holdings, Inc., 816 F.3d 686, 695 (11th Cir. 2016) (emphasis added).