Under Seal 1 v. United State
PUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-mc-00005-RJC-DCK-1 Copies to all parties and the district court/agency... [16-4096, 16-4099]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: GRAND JURY SUBPOENA
-------------------------------------------UNDER SEAL 1; UNDER SEAL 2; UNDER SEAL 3,
Petitioners - Appellants,
UNDER SEAL 4,
UNITED STATES OF AMERICA,
Respondent – Appellee.
In Re: GRAND JURY SUBPOENA
-------------------------------------------UNDER SEAL 1; UNDER SEAL 2; UNDER SEAL 3,
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UNDER SEAL 4,
Movant - Appellant,
UNITED STATES OF AMERICA,
Respondent – Appellee.
Appeals from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:15−mc−00005−RJC−DCK−1)
Argued: March 24, 2017
Decided: August 18, 2017
Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.
Affirmed in part, reversed in part, and remanded with instructions by published per curiam
opinion. Judge Niemeyer wrote an opinion concurring in part and dissenting in part.
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina; Steven Thomas Meier, MEIER LAW,
Charlotte, North Carolina, for Appellants. Amy Elizabeth Ray, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:
Ross Hall Richardson, Executive Director, Peter S. Adolf, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellants. Jill
Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
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This case arises from the district court’s denial of a motion to quash grand jury
subpoenas demanding testimony of a criminal defendant’s attorney and investigator. As
we explain, we find that part of the testimony sought is fact work product that may
nonetheless be compelled because it falls under the crime-fraud exception to the workproduct privilege. But the government may not ask a general question attempting to reach
what we deem to be opinion work product. Accordingly, we affirm in part and reverse in
We provide only a general recitation of the facts to preserve the confidentiality of
the ongoing grand jury proceedings.
The United States obtained a conviction of a criminal defendant (the “Defendant”)
in the Western District of North Carolina. After trial, the government noticed that one of
the exhibits introduced by the Defendant—a photocopy of a document—appeared to be a
forgery. Upon request, the Defendant’s attorney provided the United States with a betterquality copy of the exhibit. The better-quality copy appeared to confirm the government’s
suspicion but also raised new questions, and the United States requested interviews with
the defense attorney and her investigator (collectively, the “Defense Team”). The Defense
Team declined to be interviewed, and the Grand Jury then issued subpoenas compelling
The Defense Team moved to quash the grand jury subpoenas, arguing that the
government sought protected work product.
The Defendant—represented by new
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counsel—intervened in support of the Defense Team. In response to the Defense Team’s
motion to quash, the United States clarified that it planned to ask the Defense Team three
questions: “(1) Who gave you the fraudulent documents? (2) How did they give them to
you, specifically? (3) What did [a specific party under investigation] tell you?” J.A. 466.
The district court held that the testimony sought constituted fact work product but that the
United States had made a prima facie case that the crime-fraud exception applied such that
the questions could be asked. The court thus denied the motion to quash. 1
This appeal followed.
Before us, the Defense Team and Defendant argue that the district court erred in
finding that 1) the testimony sought by the government is fact—rather than opinion—work
product and 2) the crime-fraud exception applies to compel discovery of the privileged
We review a district court’s ruling on privilege for abuse of discretion, “factual
findings as to whether a privilege applies for clear error, and the application of legal
principles de novo.” United States v. Hamilton, 701 F.3d 404, 407 (4th Cir. 2012). The
determination that the government has made a prima facie showing of crime or fraud
A magistrate judge issued a 17-page opinion and order denying the Defense
Team’s motion to quash, which the district court affirmed and adopted.
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sufficient to vitiate a claim of work product privilege “should be upheld absent a clear
showing of abuse of discretion.” In re Grand Jury Proceedings #5 Empanelled January
28, 2004, 401 F.3d 247, 254 (4th Cir. 2005) (internal quotation marks omitted). “A district
court by definition abuses its discretion when it makes an error of law.” Koon v. United
States, 518 U.S. 81, 100 (1996).
The work-product privilege protects from discovery “an attorney’s work done in
preparation for litigation.” In re Grand Jury Proceedings #5, 401 F.3d at 250. Because
the privilege protects “not just the attorney-client relationship but the interests of attorneys
to their own work product, the attorney, as well as the client, hold the privilege.” Id.
(internal citations omitted).
Not all work product is treated equally: We afford greater protection to opinion work
product than to fact work product. Fact work product is a “transaction of the factual events
involved” and may be obtained upon a mere “showing of both a substantial need and an
inability to secure the substantial equivalent of the materials by alternate means without
undue hardship.” In re Grand Jury Proceedings, John Doe, 102 F.3d 748, 750 (4th Cir.
1996) (quoting In re Grand Jury Proceedings, Thursday Special Grand Jury Sept. Term,
1991, 33 F.3d 342, 348 (4th Cir. 1994)). Opinion work product, on the other hand,
“represents the actual thoughts and impressions of the attorney,” and it is “more
scrupulously protected.” Id. “[O]pinion work product enjoys a nearly absolute immunity
and can be discovered only in very rare and extraordinary circumstances.” In re John Doe,
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662 F.2d 1073, 1080 (4th Cir. 1981) (quoting In re Murphy, 560 F.2d 326, 336 (8th Cir.
A party seeking material that would usually qualify as work product may vitiate the
privilege by showing that the material was “made for the purpose of committing or
furthering a crime or fraud.” In re Grand Jury Subpoena, 884 F.2d 124, 127 (4th Cir.
1989). The crime-fraud exception provides a separate avenue for compelling production
of both fact and opinion work product, but here again opinion work product enjoys greater
A party seeking to compel the production of opinion work product under the crimefraud exception must demonstrate attorney knowledge of or participation in the client’s
crime or fraud, but no such showing is necessary to discover fact-work-product privileged
materials related to a client’s crime or fraud. See In re Grand Jury Proceedings #5, 401
F.3d 247 at 252–54; Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999). Because
the government does not claim that the Defense Team was aware of the Defendant’s alleged
crime or fraud, the reach of the grand jury’s subpoena under the crime-fraud exception is
limited to fact work product. The distinction between fact and opinion work product,
therefore, bears on the outcome of this case.
In Upjohn Co. v. United States, the Supreme Court developed a framework for
analyzing the protection afforded an attorney’s recollection of witness interviews, albeit
without diving deeply into the distinction between fact and opinion work product. 449
U.S. 383, 400–01 (1981). The Court held that “memoranda based on oral statements of
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witnesses [that] would reveal the attorney’s mental processes . . . deserv[e] special
protection” without creating stronger protections for all “work product which is based on
oral statements from witnesses.” Id. Key to the Court’s holding, the “oral statements made
by witnesses [were] presently in the form of the attorney’s mental impressions [and]
memoranda.” Id. at 399 (quoting Hickman v. Taylor, 329 U.S. 495, 512 (1947)). And
“notes and memoranda of witnesses’ oral statements,” the Court cautioned, “tend to
reveal the attorney’s mental processes,” and therefore enjoy the greater protection accorded
to opinion work product. Id.
But as Hickman itself cautioned, courts should tread carefully when a party seeks to
compel disclosure of attorney work product, whether memorialized in writing or retained
in the recesses of an attorney’s mind. “Under ordinary conditions, [no legitimate purpose
is served by] forcing an attorney to repeat or write out all that witnesses have told him,”
regardless of whether “oral statements made by witnesses [are] presently in the form of
[the attorney’s] mental impressions or memoranda.” Hickman, 329 U.S. at 512–13.
In our view, Upjohn and Hickman make clear that a lawyer’s recollection of a
witness interview constitutes opinion work product entitled to heightened protections. It
does not matter whether an attorney draws on her memories, as opposed to written notes,
in recalling what was said; the opinion-work-product privilege offers increased protection
to both sources because both require disclosure of the attorney’s mental processes. Upjohn,
449 U.S. at 399–400 (explaining that “[f]orcing” disclosure of oral witness statements is
particularly disfavored); Hickman, 329 U.S. at 513 (explaining the impropriety of
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“forc[ing] the attorney to testify as to what he remembers or what he saw fit to write down
regarding witnesses’ remarks” (emphasis added)).
As Justice Jackson explained in Hickman, “Even if [an attorney’s] recollection were
perfect, the statement would be his language permeated with his inferences.” 329 U.S. at
516–17 (Jackson, J., concurring). For most lawyers, imperfect recitations from memory of
what a witness said would inevitably reveal what the attorney deemed important enough to
remember. Accordingly, we draw a line between asking an attorney to divulge facts—
either noticed by or communicated to her—and (as the government seeks to do here) asking
an attorney to recall generally what was said in an interview. While it may be characterized
as a “fact,” the latter requires the attorney to expose her mental processes by revealing
which witness statements she deemed important enough to commit to memory and is
therefore opinion work product. 2
Upjohn and Hickman mandate the conclusion that the government’s proposed third
question, which broadly demands, “What did [the witnesses] tell you?,” seeks opinion work
The Eighth Circuit reached this same conclusion in In re Green Grand Jury
Proceedings, 492 F.3d 976 (8th Cir. 2007). There, like in the instant case, the United States
suspected that a client had provided his attorney fraudulent documents. Id. at 978. The
grand jury issued a subpoena demanding that the attorney testify about conversations with
his client, and the attorney asserted the work-product privilege. Id. at 978‒79. The court
concluded that answers to “questions relating to the origins of documents” do not constitute
recollections on par with notes and are therefore fact work product. Id. at 979. An
attorney’s “recollections of conversations,” on the other hand, “would reveal the attorney’s
mental impressions and thought processes” and as such qualify as opinion work product.
Id. at 982.
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To answer this question, the Defense Team would have to disclose their
recollections of witness statements and reveal what they deemed sufficiently important to
remember from those discussions.
This falls squarely within the category of work
product—opinion work product—that the Supreme Court strongly shields from discovery.
Indeed, the third question is functionally equivalent to the interrogatory the Court deemed
improper in Hickman, which asked the attorney to “set forth in detail the exact provisions
of any such oral statements or reports [from witnesses].” Id. at 499 (majority opinion).
Such recollections of witnesses’ statements “contain the fruit of [the attorney’s] mental
processes.” In re Grand Jury Proceedings # 5, 401 F.3d at 250. That, of course, is opinion
Our decision in In re Grand Jury Proceedings, John Doe does not compel a different
result. There, the government sought to compel “testimony from [a bank’s attorneys] as to
what information was told to them by their client, the Bank, with respect to the date of” a
note the Government believed the Bank improperly issued. 102 F.3d at 750. On appeal,
the Bank’s attorneys never asserted that the subpoenaed information was opinion work
product. Rather, the parties briefed only whether the government demonstrated a prima
facie case of crime or fraud sufficient to compel disclosure of fact work product. See Brief
of Appellant, In re Grand Jury Proceedings, John Doe, 102 F.3d 748 (4th Cir. 1996) (No.
96-4609); Brief for the United States, In re Grand Jury Proceedings, John Doe, 102 F.3d
748 (4th Cir. 1996) (No. 96-4609); Reply Brief of Appellant, In re Grand Jury
Proceedings, John Doe, 102 F.3d 748 (4th Cir. 1996) (No. 96-4609).
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Thus, in describing the facts of the case, we noted that the government sought
“testimony from the attorneys as to what information was told to them by their client,”
which was a “transaction of the factual events involved” and therefore fact work product.
In re Grand Jury Proceedings, John Doe, 102 F.3d at 750. But because the Bank’s
attorneys in John Doe never asserted that the Government sought opinion work product,
our undisputed characterization of what was at issue there was no holding at all. See e.g.
United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (stating that a prior
case “is not a binding precedent” for questions “not . . . raised in briefs or argument nor
discussed in the opinion of the Court.”); accord Webster v. Fall, 266 U.S. 507, 511 (1925)
(“Questions which merely lurk in the record, neither brought to the attention of the court
nor ruled upon, are not to be considered as having been so decided as to constitute
Put simply, In re Grand Jury Proceedings, John Doe did not decide the question at
Because the government’s third question seeks opinion work product, and because
the government does not assert that the Defense Team was aware of the alleged crime or
In any event, courts of appeals cannot overrule Supreme Court precedents.
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fraud, it may not rely on the crime-fraud exception to compel the Defense Team to answer
the third question.
Questions one and two, on the other hand, target fact work product, 4 which the
government also seeks pursuant to the crime-fraud exception. The party asserting the
exception (here, the United States) “must make a prima facie showing that the privileged
communications fall within the exception.” Chaudhry, 174 F.3d at 403. This showing has
two prongs, that: “(1) the client was engaged in or planning a criminal or fraudulent scheme
when he sought the advice of counsel to further the scheme and (2) the documents
containing [the privileged materials] . . . bear a close relationship to the client’s existing or
future scheme to commit a crime or fraud.” Id. (alterations in original) (internal citations
omitted). We will uphold the district court’s determination that the government has made
a prima facie showing of crime or fraud “absent a clear showing of abuse of discretion.”
In re Grand Jury Proceedings #5, 401 F.3d at 254 (quoting In re Grand Jury Subpoena,
884 F.2d at 127).
As we’ve noted, “those seeking to overcome the opinion work product privilege
must make a prima facie showing that the attorney in question was aware of or a knowing
participant in the criminal conduct.” Id. at 252 (emphasis added) (internal quotation marks
omitted). But to compel the Defense Team to answer questions one and two, it’s not
At oral argument, the Defense Team conceded—properly, we find—that
“questions one and two are fact work product.” Oral Argument at 9:48 to 10:02.
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necessary for the United States to show that the Defense Team was aware of their client’s
alleged bad acts.
The Defense Team doesn’t argue that the district court erred in finding that the
government satisfied the two prongs of the crime-fraud exception’s prima facie showing.
Appellants’ Br. at 12–13. Instead, they contend that, because the district court correctly
found that “the Government has made no assertion that [the Defense Team] had knowledge
of or knowingly participated in [their client’s] crime,” the United States hasn’t satisfied the
third prong of the crime-fraud exception. Id. at 13 (quoting J.A. 466). But that third
prong—as the Defense Team appears to admit—need not be satisfied where a party seeks
only fact work product. The district court’s order here cites—and perfectly tracks—our
precedent laying out the correct two-prong test for the crime-fraud exception to fact-workproduct privilege.
We are thus left to review the district court’s “factual findings as to whether a
privilege applies for clear error.” Hamilton, 701 F.3d at 407. The United States provided
ample evidence that the Defendant likely engaged in “perjury and production of a
fraudulent document” and that the proposed questions seek information “bear[ing] a close
relationship to [that] possible criminal and fraudulent activity”—specifically, the identity
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of the source of those documents. J.A. 476‒77. The district court did not clearly err in
concluding that the government made a prima facie showing of crime or fraud. 5
We therefore affirm in part the district court’s order denying the motion to quash
the grand jury subpoenas. Specifically, the government may ask the Defense Team: (1)
Who gave you the fraudulent documents? and (2) How did they give them to you,
specifically? We reverse, however, that portion of the district court’s order compelling the
defense team to answer the government’s third question and remand with instructions that
the district court grant that portion of the motion to quash.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS
Because the first and second questions seek information exempted from the workproduct privilege because of crime or fraud, we do not reach the Defense Team’s argument
that the government failed to demonstrate the substantial need necessary to discover
privileged fact work product.
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NIEMEYER, Circuit Judge, concurring in part and dissenting in part:
The question we must answer is whether a grand jury subpoena directing an attorney
to testify as to what some third-party witness told her violates the work-product rule in
circumstances implicating the crime-fraud exception. Specifically, the dispute here centers
on whether a grand jury subpoena can require members of a criminal defense team to testify
as to what a third-party witness told them when providing them with a fraudulent
document, nothing more.
The district court reasoned that this evidence, although part of the attorney’s work
product, amounted only to historical fact that did not involve the attorney’s mental
impressions or opinions. The court therefore concluded that because the inquiry was
justified by the crime-fraud exception, the evidence could be obtained. I agree. Asking an
attorney to recall what a witness told her about a specific document reveals at most a de
minimis amount of attorney impression — namely, that the attorney presently believes she
can remember a witness’s words.
The work-product rule protects matters prepared in anticipation of litigation. In the
seminal case of Hickman v. Taylor, 329 U.S. 495 (1947), the Supreme Court held that an
attorney’s work product was entitled to a qualified privilege from discovery under the
Federal Rules of Civil Procedure. In doing so, the Court explained the policy behind
protecting attorney work product:
Historically, a lawyer is an officer of the court and is bound to work for the
advancement of justice while faithfully protecting the rightful interests of his
clients. In performing his various duties, however, it is essential that a lawyer
work with a certain degree of privacy, free from unnecessary intrusion by
opposing parties and their counsel. Proper preparation of a client’s case
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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. That is the historical and
the necessary way in which lawyers act within the framework of our system
of jurisprudence to promote justice and to protect their clients’ interests.
Id. at 510–11. But the Court also made clear that there was a competing policy underlying
the adversary system — the principle that both sides should have access to all the facts in
a case, including, if necessary, those in the hands of opposing attorneys. The Court stated:
We agree, of course, that the deposition-discovery rules are to be accorded a
broad and liberal treatment. . . . Mutual knowledge of all the relevant facts
gathered by both parties is essential to proper litigation. To that end, either
party may compel the other to disgorge whatever facts he has in his
Id. at 507 (emphasis added).
The difficult issues arise where the facts sought are intertwined with an attorney’s
assessment and preparation of those facts for use in litigation. The cases have toiled over
defining the circumstances when such facts can be or should be produced. Hickman itself
indicated that an exception to the work-product rule exists where facts are available only
from the hands of an opposing attorney and where necessity and justice require their
production. See 329 U.S. at 509, 511–12. That Court, however, denied production of such
facts in the case before it — including, as relevant here, oral statements of witnesses made
to the defendant’s attorney — because the party seeking the information had not made a
sufficient showing to justify the exception. Indeed, the plaintiff’s attorney had made no
showing, arguing only that the evidence would help him prepare for his own examination
of the witnesses and assure him “that he ha[d] overlooked nothing.”
Id. at 513.
Specifically, as to the witnesses’ oral statements made to the attorney, whether in the form
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of the attorney’s memory or documented memoranda, the Court stated, “we do not believe
that any showing of necessity can be made under the circumstances of this case so as to
justify production.” Id. at 512 (emphasis added). But even as to such matters, the Court
indicated that they might be producible in “rare situation[s].” Id. at 513.
In the years since Hickman, courts have distinguished between “opinion work
product” and “fact work product” when assessing the nature of the showing necessary to
justify production of attorney work product. To serve the policy of discovery of facts, a
court will more likely favor the production of fact work product, whereas to serve the policy
of protecting attorneys’ mental processes during preparation for litigation, a court will more
likely protect from production impressions, conclusions, opinions, or legal theories of the
attorneys or their agents. This demarcation was defined more clearly in Upjohn Co. v.
United States, 449 U.S. 383 (1981), where the Court stated that “[f]orcing an attorney to
disclose notes and memoranda of witnesses’ oral statements is particularly disfavored
because it tends to reveal the attorney’s mental processes, [i.e.,] ‘what he saw fit to write
down regarding witnesses’ remarks,’” id. at 399 (emphasis added) (quoting Hickman, 329
U.S. at 513). This formulation suggests that requiring an attorney to disclose facts
contained in his work product is not so disfavored when doing so does not reveal the
attorney’s mental processes. Distilling these principles, we have held that while both types
of work product are potentially discoverable, we afford greater protection to “opinion work
product” than to “fact work product.” See, e.g., In re Grand Jury Proceedings #5, 401 F.3d
247, 252 (4th Cir. 2005) (“[F]act work product enjoys less protection than opinion work
product”); In re Grand Jury Proceedings, 102 F.3d 748, 750 (4th Cir. 1996) (“Opinion
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work-product . . . is more scrupulously protected as it represents the actual thoughts and
impressions of the attorney” (internal quotation marks and citation omitted)).
In this case, I believe that Hickman and its progeny favor disclosure of what are
historical facts. The grand jury simply seeks the testimony of an attorney as to what a
witness told her about a specific document. Under these circumstances, the government
will not obtain the attorney’s impressions about the witness’s statement or require the
attorney to evaluate it in any respect — indeed, the attorney could be expressly instructed
to omit any impressions from her responses.
The majority’s contrary conclusion rests on the premise that asking an attorney to
recall what a third-party witness told her about a specific document would force the
disclosure of opinion work product because it “would inevitably reveal what the attorney
deemed important enough to remember,” thereby offering a window into the attorney’s
mental processes. Ante at 8. Yet, this underlying premise regarding the nature of memory
is shaky. Perhaps the attorney remembers what the witness told her about the document
because she found it significant to her client’s defense. Or maybe she remembers the
statement because the witness made a joke or was wearing an interesting shirt or used a
strange turn of phrase. Or maybe the attorney simply has a good memory and is able to
relate accurately what was told to her. The grand jury will never know. There thus remains
an important difference between an attorney’s present memory of a witness’s statement
and her contemporaneous notes and memoranda of a witness’s statement, which are written
specifically to document the portions of the statement that she considered relevant to her
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client’s case — i.e., what she “saw fit to write down.” Upjohn, 449 U.S. at 399–400. Only
the latter provides a window into the attorney’s thought process.
At bottom, the subpoenaed testimony “seeks only [a] transaction of the factual
events involved,” In re Grand Jury Proceedings, 102 F.3d at 750, namely, what a thirdparty witness said about a fraudulent document that the witness was providing to the
attorney. This is far removed from true opinion work product, which rightfully “enjoys a
nearly absolute immunity.” In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir.
1994). Because we all agree that the government’s showing as to the applicability of the
crime-fraud exception in this case justifies the production of fact work product, I would
apply the exception and allow the grand jury to obtain the attorney’s testimony on the
limited question of what the attorney was told by a witness about a specific document, as
best the attorney can recollect. Accordingly, I would affirm the district court’s order in
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