In re Napster, Inc. Copyright Litigation, 479 F. 3d 1078 - Court of Appeals, 9th Circuit 2007

Second, it must demonstrate that the attorney-client communications for which production is sought are sufficiently related to and were made in furtherance of [the] intended, or present, continuing illegality.

"In a civil case in the Ninth Circuit, `the burden of proof that must be carried by a party seeking outright disclosure of attorney-client communications under the crime fraud exception should be preponderance of the evidence.'"

Under the crime-fraud exception to the attorney-client privilege, communications are not privileged when the client "consults an attorney for advice that will serve him in the commission of a fraud or crime."

The Ninth Circuit has indicated that fraud on the court requires proof of "an intentional, material misrepresentation directly `aimed at the court.'"

First, the party must show that "the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme."

"[I] na civil case, when the district court is asked to order outright disclosure, the burden of proof on the party seeking to vitiate the [attorney-client] privilege is preponderance of the evidence."

Under Zolin's second step, " `rulings on the scope of the privilege,'including the crime-fraud exception, `involve mixed questions of law and fact and are reviewable de novo, unless the scope of the privilege is clear and the decision made by the district court is essentially factual; in that case only clear error justifies reversal.'"

—finding jurisdiction under the collateral order doctrine to review the district court's order compelling production of attorney-client communication

By comparison, the Ninth Circuit has phrased the appropriate standard of proof as a "preponderance of the evidence test."

—the party seeking outright disclosure where crime-fraud is alleged in the civil context has the right to introduce countervailing evidence.