United States District Court, D. Colorado
A. BRIMMER, United States District Judge
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.
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
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.
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.
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.
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
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,
Waiver by Inadvertent Disclosure
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.”
Was the Disclosure Inadvertent?
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 ...