Protecting privileged documents.

• Author: Bedell, George
• Position: Cover Story

If you got a warrant, I guess you're gonna come in.

Truckin' Garcia, Hunter, Lesh and Weir

State prosecutors no longer reserve search warrants for investigations of drug dealers, gamblers, and houses of prostitution. In addition to the high profile federal cases such as the Columbia/HCA, Enron, and HealthSouth prosecutions, an increasing number of state criminal cases begin with the execution of search warrants on businesses. When the warrant authorizes the seizure of documents, attorney-client correspondence and attorney work product (1) may not be given sanctuary. Indeed, the warrant may specifically authorize the seizure of litigation materials or attorney work product. Inadvertent production of materials can also lead to a waiver of the privilege. This article discusses issues that arise following the seizure of privileged materials, the importance of a prompt motion by client's counsel to return the privileged materials seized, and the crime-fraud exception to the privilege. Also included are some precautions clients can take to minimize the damage done by a seizure.

Assert the Privilege Early and Often or Risk Waiver

While Florida law may regard the attorney-client privilege as "an absolute privilege, rather than a qualified privilege," (2) the privilege will not survive in the face of neglect even if the government fails to establish an exception. If the material seized or inadvertently produced is to be protected, the privilege must be asserted early and often. A single notice to the agent or prosecutor will probably not be sufficient to ensure the survival of the privilege. The longer the documents are out of the client's possession, the more attenuated a claim of privilege becomes. Florida appellate courts have not yet addressed whether timing of the assertion of the privilege affects its viability. There are, however, two opinions from federal circuit courts that illustrate the perils inherent in delay.

The Third Circuit Court of Appeals held that delay in seeking a judicial determination of a claim of attorney work product privilege amounted to a waiver of the privilege. In re: Grand Jury, 138 F.3d 978 (3d Cir. 1998). Early in a kidnapping investigation, Capano, the suspect, who was an attorney, retained counsel. Capano's attorney instructed him to write a time-line of his activities beginning the date the victim disappeared. After writing the time-line, Capano put it in a file which he put in the office of Frey, one of his partners. The government later got the file containing the time-line from Frey pursuant to a grand jury subpoena. Eight days after the government received the time-line, Capano's attorney wrote to the prosecutor notifying him of Capano's belief that the file contained privileged information. The prosecutor disagreed with Capano's counsel and told him to "take the issue up with the court." Id. at 980. Over the next three months, Capano's attorney made additional attempts to persuade the government to return the file during telephone conversations and with a second letter to the prosecutor. Four months after the government took possession of the file, Capano's attorney filed a motion to compel the government to return the file. While the trial court recognized that the file contained attorney work product, it declined to order the return of the file, finding that Capano had waived the attorney work product privilege through his delay in bringing the issue before the court. (3)

When it was asked to reverse a conviction that relied in part on a violation of the attorney-client privilege, the Ninth Circuit also concluded that indolence amounted to a waiver. United States v. de la Jara, 973 F.2d 746 (9th Cir. 1992). At trial, the government introduced a letter to the defendant, de la Jara, from his attorney. Law enforcement agents had seized the letter during the execution of a search warrant at his home. De la Jara did not challenge the seizure of the letter until the trial. Because the disclosure was involuntary, the court regarded the letter as continuing to be privileged immediately following the seizure. The privilege was in the court's view eroded by time. In the six months between the seizure of the letter and its introduction in evidence, de la Jara did nothing to retrieve the letter or protect its content. The court found that by failing to act de la Jara had allowed the confidentiality of the letter "to be 'irretrievably breached,' thereby waiving his privilege." Id. at 750. Before reaching its conclusion, the court emphasized the importance of swift action, commenting, "By immediately attempting to recover the letter, appellant could have minimized the damage caused by the breach of confidentiality." Id.

While the state should not read documents that are clearly covered by the attorney-client privilege or attorney work product doctrine, it is the duty of defense counsel to immediately demand that the state return such materials. If the state hesitates to comply with the demand, defense counsel should immediately file a motion for return of the material.

Protection of Confidentiality of Seized Privileged Materials

Rather than jeopardize the ability of its personnel to complete an investigation, some law enforcement agencies quarantine potentially privileged evidence through the use of "taint teams." Taint teams are normally composed of prosecutors and agents who are not directly involved in the investigation. The function of a taint team is to identify and remove potentially privileged materials from seized documents so that...