Hearing in Clemens case today

Houston Chronicle

By JOSE DE JESUS ORTIZ

April 20, 2011

Federal judge Reggie Walton will hold a hearing today in Washington to determine whether Roger Clemens' attorneys can have access to material from the law firm Major League Baseball hired to conduct the Mitchell Report and from the House Oversight Committee that conducted hearings on drug use in baseball.

The seven-time Cy Young Award winner is preparing his defense on a six-count indictment on charges of perjury, making false statements and obstruction of Congress in the aftermath of his claim that he never used performance-enhancement drugs.

At stake is a potential $1.5 million fine and maximum 30-year sentence, which is why two local defense attorneys believe Clemens is entitled to the materials requested by his attorneys, Rusty Hardin of Houston and Michael Attanasio of Cooley LLP in San Diego.

The Oversight Committee cited the Speech and Debate Clause last week in its motion to quash Hardin's subpoena for the internal documents.

"I think one of the big issues is Mr. Clemens had subpoenaed documents from Congress that were prepared in their internal investigation into performance-enhancement drugs in baseball," said former federal prosecutor Philip Hilder, who now serves as a defense attorney. "One of the key issues here is Congress leaked so much of that information gathered and leaked so much of it to the public.

"Do they even have a right to argue that the remaining documents are protected?"

In a report released in December 2007 and commissioned by MLB, former Sen. George Mitchell's report implicated Clemens with using performance-enhancing drugs during his career.

Hardin has requested notes from witness interviews and memos that were produced during the Mitchell investigation by DLA Piper, the law firm that employed Mitchell and conducted the investigation for MLB.

Walton has issued a gag order in the case, so the prosecutors, Hardin and Attanasio have declined comment.

"As far as the DLA Piper motion, I think Roger is entitled to that, too," said former prosecutor Chris Flood, a lawyer at Flood & Flood. "They are trying to expand the attorney work product privilege. But attorney work product privilege shouldn't apply to DLA Piper paperwork because it was not created in anticipation of litigation."

The DLA Piper notes helped produce a report that ultimately was used by the federal government.

"They shared their work product with the Oversight Committee," Flood said, "so they waived (work product privilege).

"And by issuing a report, they waived the substance of it."