This section contains the nature of the case and procedural background.

Oldco pled guilty to charges of conspiracy to defraud the Internal Revenue Service and agreed to cooperate with the government's ongoing investigation of certain present and former officers, employees, and customers. Oldco expressly waived applicable attorney-client and work product privileges. A federal grand jury issued a subpoena duces tecum to Oldco's parent corporation, Newparent, Inc., demanding the production of documents relating to its 'rebate program' -- a program under which, according to the government, Oldco would charge certain complicit customers more than the going rate for its products, but would then refund the difference by payments made directly to principals of these customers. Oldco was a wholly-owned subsidiary of Newparent. Its records were in the possession of Newparent's counsel, a law firm that we shall call Smith & Jones. The grand jury investigation focused on conduct that occurred prior to the acquisition date of Oldco by Newparent. Pre-acquired Oldco operated as a closely held corporation. Roe and Moe ran the operation, and Lawyer was outside counsel. Roe, Moe, and Lawyer -- intervened in the proceedings and filed a motion to quash the Grand Jury subpoena. Lawyer claimed to conduct simultaneous representation of the corporation and Roe and Moe under a joint defense agreement which claimed that communications among the three clients were jointly privileged and could not be released without unanimous consent. None of this was written down nor in any resolution or records of Oldco. The district court denied the motion to quash, and this appeal resulted.

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