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United States v. Brewington

United States District Court, D. Colorado

February 26, 2018



          PHILIP A. BRIMMER, United States District Judge

         This matter comes before the Court on Defendant's Motion to Compel Brian Elrod's Emails Currently Being Withheld as Privileged [Docket No. 55]. Defendant seeks to compel production of emails produced to the government by alleged co-conspirator Brian Elrod that the government identified as privileged and to also compel production of other emails relating to the same subject matter. Id. at 1. Mr. Elrod is cooperating with the government and is anticipated to testify against Mr. Brewington at trial. The Court held an evidentiary hearing on defendant's motion on October 20, 2017 during which Mr. Elrod testified. Docket No. 142. Thereafter, the parties filed supplemental briefing. Docket Nos. 143, 145.

         I. BACKGROUND

         Mr. Elrod produced emails to the government at a meeting on June 11, 2015 at the United States Department of Justice. In addition to Mr. Elrod, his criminal defense counsel, James B. Koch, and a trial attorney with the DOJ, Jennifer Ballantyne, were present at the meeting. Mr. Elrod testified that he produced emails to the government in two ways. First, before the meeting, Mr. Elrod searched his email account and downloaded emails that referred to certain individuals or used certain email addresses. He gave the downloaded emails to Mr. Koch to provide to the government. Second, during the meeting with the government, Mr. Elrod logged into his email account and allowed a government information technology (“IT”) employee to search for and download further emails.

         A month and a half later, while reviewing the emails that Mr. Elrod produced, Ms. Ballantyne found emails between Mr. Elrod and Mr. Koch. Docket No. 143-1 at 1-2, ¶ 2. She stopped reviewing the emails, notified Mr. Koch, and put in place a team to filter those privileged emails from the collection. Id., ¶¶ 2-3. The government is withholding the emails identified as privileged by the government's filter team from production to defendant. Docket No. 66 at 2.

         At the evidentiary hearing, Mr. Elrod credibly testified that he never intended to disclose privileged emails between himself and Mr. Koch to the government. After the hearing and with leave of the Court, the government submitted two affidavits in a supplemental brief. In the first affidavit, Ms. Ballantyne states that, during the June 11, 2015 meeting, the government and Mr. Elrod agreed that they would only search for emails that contained the names of individuals relevant to the investigation in the emails' address fields, i.e., “to/from/cc/bcc.” Docket No. 143-1 at 1, ¶ 1. In the second affidavit, Mr. Koch states that “[o]n each and every occasion when documents were produced, the same restriction was agreed upon between myself and the officers and agents of the DOJ which was that a list of names and / or terms could be downloaded from Elrod's computer, thumb drives or files, but that the terms ‘James B. Koch' or ‘GKWW' [his law firm's acronym] whether in the To, From or Subject lines, or internally in the emails, could not be produced.” Docket No. 143-2 at 2, ¶ 7.

         II. ANALYSIS

         There is no dispute about whether the withheld emails are subject to the attorney-client privilege. The parties assume that they are, subject to in camera review by the Court. Instead, the issue is whether waiver of that privilege has occurred. The attorney-client privilege protects confidential communications and is “lost if the client discloses the substance of an otherwise privileged communication to a third party.” United States v. Ryans, 903 F.2d 731, 741 n. 13 (10th Cir. 1990); see also United States v. Bernard, 877 F.2d 1463, 1465 (10th Cir. 1989). “The courts will grant no greater protection to those who assert the privilege than their own precautions warrant.” Ryans, 903 F.2d at 741 n.13.

         Since 2008, Fed.R.Evid. 502 has governed issues of waiver in federal proceedings. Silverstein v. Fed. Bureau of Prisons, No. 07-cv-02471-PAB-KMT, 2009 WL 4949959, at *10 (D. Colo. Dec. 14, 2009). “Rule 502(b) deals with whether a disclosure of privileged information constitutes an inadvertent waiver of the attorney-client privilege and work-product protection, while Rule 502(a) governs the scope of the waiver if such waiver was not ruled inadvertent.” Id.

         “A party claiming the attorney-client privilege must prove its applicability, which is narrowly construed.” In re Foster, 188 F.3d 1259, 1264 (10th Cir. 1999). In this case, the burden to show the privilege was not waived is on Mr. Elrod as the holder of the privilege. New Jersey v. Sprint Corp., 258 F.R.D. 421, 426 (D. Kan. 2009) (“The burden of showing that the privilege has not been waived remains with the party claiming the privilege.” (citing Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D. Kan. 2000))); Silverstein, 2009 WL 4949959, at *5 (citing Bethel v. United States, No. 05-cv-01336-PSF-KLM, 2008 WL 45382, at *7 (D. Colo. Jan. 2, 2008)).

         A. Waiver by Inadvertent Disclosure

         Pursuant to Fed.R.Evid. 502(b), disclosure of privileged material “does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error.”

         1. Was the Disclosure Inadvertent?

         The parties do not dispute that Mr. Elrod's disclosure of the privileged emails was inadvertent. Based on the evidence, including the testimony of Mr. Elrod and the affidavit of Mr. Koch, the Court agrees. See Galena St. Fund, L.P. v. Wells Fargo Bank, N.A., No. 12-cv-00587-BNB-KMT, 2014 WL 943115, at *10 (D. Colo. Mar. 10, 2014) (finding inadvertent disclosure where the privileged ...

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