Today Judge Burke unsealed an opinion with a great discussion of what it takes to make a "prima facie" showing, at least as to the crime/fraud exception to attorney-client privilege (that's something you don't see every day).
According to the Court, the rules require it to hold a hearing on the crime/fraud exception, but only if the plaintiff first makes a prima facie showing that the exception applies.
The Court first reviewed plaintiff's evidence, and found that plaintiff had showed that the exception applied. The Court also found, however, that defendant's additional, different evidence that showed that the exception did not apply. On the whole, the Court sided with the defendant, finding that, in light of all of the evidence, the crime/fraud exception does not apply.
But that wasn't the end! The Court still found that it must hold an evidentiary hearing on the crime/fraud exception. Why? Because none of the defendant's additional evidence matters in determining whether plaintiff made a prima facia showing that a hearing must be held. Instead, the Court must ignore the non-movants' evidence and look just at the movant's evidence:
With the Court having said all of the above, the question then becomes: In resolving the instant Motion, what is the Court’s proper role? Is the Court supposed to look only at the evidence put forward by Plaintiffs and determine whether that evidence, standing alone, would make out a prima facie case? Or is it supposed to take into account all of the evidence provided to it, including that submitted by Defendants, in making a decision on the issue at this stage?
In Haines, the Third Circuit explained that the prima facie case inquiry is one where the court asks “[H]as the party seeking discovery presented evidence which, if believed by the factfinder, supports plaintiff’s theory of fraud?” 975 F.2d at 95 . . . . In doing so, the Haines Court cited approvingly to a decision from the United States Court of Appeals for the Fifth Circuit, which explained that “prima facie evidence” in this context is “[evidence] [s]uch as will suffice until contradicted and overcome by other evidence . . . [a] case which has proceeded upon sufficient proof to that stage where it will support [a] finding if evidence to the contrary is disregarded.” Id. . . .
In the Court’s view, these portions of Haines make clear that in determining whether a movant has made out a prima facie case, the Court must only assess the strength of the evidence presented by the movant. . . . Or, to put it differently, the Court’s job at this point is not to take the movant’s evidence and consider it alongside with any contrary evidence put in the record by the non-movant, and then to make a decision as to whether a prima facie showing has been made (or whether a preponderance of the evidence supports Plaintiffs’ claim).
ECB USA, Inc. v. Savencia, S.A., C.A. No. 19-731-GBW-CJB (D. Del. January 4, 2024).
Fascinating! It's always enlightening when the Court parses the meaning of a term like "prima facie" this closely. I have to wonder if this logic could apply in other contexts, such as a prima facie showing of authenticity at trial.
I'm definitely making a mental note to refer back to this next time I need to make a prima facie showing of something—although we'll have to see if the opinion ends up being cabined exclusively to the crime-fraud exception.
