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