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United States District Court, S.D. New York

May 25, 2004.


The opinion of the court was delivered by: BARBARA JONES, District Judge

Memorandum Opinion


On March 4, 2004, a grand jury returned an indictment against the Defendants in this case, charging them with conspiracy to violate, and violation of, 21 U.S.C. § 856; conspiracy to aid and abet narcotics distribution (21 U.S.C. § 841 (a) & (b)); and, two counts of aiding and abetting narcotics distribution.

  The next day, the Government obtained a warrant, signed by Magistrate Judge Ellis, to search the premises known as "The Sound Factory," and Defendant Grant's apartment ("Warrant"). The Warrant, as well as the indictment, contained allegations that Defendants Grant and Coffiel submitted false affidavits and gave false testimony attesting to the their "efforts to keep drug users and drug dealers out of Sound Factory," a night club, in connection with certain nuisance abatement actions brought by the City of New York that were aimed at closing it. (See, e.g., Warrant at 15-17). The Warrant gave the Government authority to seize, among other things, "contracts, memoranda, documents, communications, notes and other materials relating to the abatement actions." (Warrant at 39). Schedule A attached to the Warrant also gave the Government authority to seize documents containing "assessments of legal liability." (Warrant at Attach. A).

  The Government executed the warrant and seized approximately 40 bankers boxes of materials, including certain documents that related to Defendants' prior civil litigations. (Transcript of May 6, 2004 Hearing ("Tr."), at 6). Based upon an initial review of the seized documents, which did not include a review of the documents' contents, the Government segregated out documents that were identified as legal in nature. The segregated documents amounted to approximately 3 to 5 boxes. (Tr. at 8).

  The issue before the Court is who should conduct the initial review of the segregated documents' contents. The Government proposes that a privilege team of Assistant United States Attorneys should conduct the review. This privilege team would consist of Assistants who are not involved in the trial in order to protect the attorney client privilege and ensure the integrity of the investigation. According to the Government's proposed procedure, the privilege team would be allowed to determine in the first instance which documents are arguably responsive and not privileged, and then the Defendant would be able to review these materials to identify any objections. Any disputes would then be settled by the Court.

  The Government argues that using a privilege team is proper, necessary for the Government to attain the full evidentiary value of the lawfully-seized materials, and has been used in many other criminal prosecutions.

  In contrast, the Defendants propose that this review should be conducted by a special master, a magistrate judge, or this Court. The Defendants argue that this procedure is preferable because the documents likely contain privileged materials and because the Government has not made an adequate showing of necessity to invade the privilege.

  For the reasons to follow, I deny the Defendants' motion.


  As an initial matter, the Court notes that a review of the documents by a privilege team of Assistant United States Attorneys would not waive Defendant's attorney-client privilege. A waiver is defined as the intentional relinquishment of a known right. See In re Search Warrant for Law Offices Executed on March 19, 1992, 153 F.R.D. 55, 59 (S.D.N.Y. 1994); see also In re von Bulow, 828 F.2d 94, 100-01 (2d Cir. 1987). Under the circumstances here, it is clear that there is no intent on the part of the Defendant to waive his rights. In addition, Defendant will not be prejudiced using this procedure. As previously noted, after the privilege team reviews the documents for privilege, the Defendant will have the opportunity to make objections to the Court before any documents are turned over to the trial team.

  In comparison, under the Defendant's proposal, after the initial privilege determination is made by the special master or judicial officer, the Government would not have the opportunity to brief or argue the ruling aided by the contents of the documents. Without the benefit of such a review, the privilege team would likely be unable to argue, for example, that no attorney-client privilege attached to the communication because of the crime-fraud exception, or that a document should be available for use at trial, regardless of work-product contents, because of necessity and unavailability by other means. See Upjohn Co. v. United States, 449 U.S. 383, 402 (1981); see also In re Grand Jury Subpoena Duces Tecum Dated September 15, 1983, 731 F.2d 1032, 1038 (2d Cir. 1984) (holding that because "advice in furtherance of a fraudulent or unlawful goal cannot be considered `sound,'" such communications cannot be protected by privilege).

  While the attorney-client privilege is an important privilege, to be sure, the documents at issue here were lawfully seized pursuant to a valid warrant, which was based upon a finding of probable cause to believe that Defendants Grant and Coffiel made false representations to the state court in order to avoid closure of a drug market. Although some of these documents likely contain attorney-client privileged communications, the Government should be allowed to make fully informed arguments as to privilege if the public's strong interest in the investigation and prosecution of criminal conduct is to be adequately protected.

  As Judge Koeltl noted in United States v. Stewart, 2002 WL 1300059 (S.D.N.Y. Jan. 11, 2002), the attorney client privilege "is based in policy, rather than in the Constitution, and therefore cannot stand in the face of countervailing law or strong public policy and should be strictly confined within the narrowest possible limits underlying its purpose." Stewart, 2002 WL 1300059, at *5 (quoting Untied States v. Goldberger & Dubin, P.C., 935 F.2d 501, 504 (2d Cir. 1991)); see also United States v. International Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir. 1997)("[S]ince the attorney-client privilege `stands in derogation of the public's right to every man's evidence, . . . it ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle.'")(citations omitted).

  It is also worth noting that, unlike the situation in Stewart, there are no Sixth Amendment concerns in this case. The seized documents were not in the files of a criminal defense lawyer, and relate to civil, not criminal, litigation that predates the indictment in this case. This is not the exceptional set of circumstances identified in Judge Koeltl's careful opinion that required the use of a special master. See generally Stewart, 2002 WL 1300059.

  Although in this case there is not an extensive number of documents at issue, the Court is also mindful of the burden that magistrates and district court judges would face if they were to routinely review lawfully-seized documents in every criminal case in which a claim of privilege was asserted. See United States v. Zolin, 491 U.S. 554, 571 (1989) ("[W]e cannot ignore the burdens in camera review places upon the district courts, which may well be required to evaluate large evidentiary records without open adversarial guidance by the parties."). Permitting the Government's privilege team to conduct an initial review of the documents will narrow the disputes to be adjudicated and eliminate the time required to review the rulings of the special master or magistrate judge, thus reducing the possibility of delay in the criminal proceedings.

  This decision is based upon the expectation and presumption that the Government's privilege team and the trial prosecutors will conduct themselves with integrity. It seems to me that the Government is entitled to that presumption and that society's interest in enforcing the criminal laws outweighs the limited incursion into the attorney client privilege that this process permits.

  Accordingly, Defendants' motion is DENIED.



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