Wednesday, March 05, 2008

By Waiting to Object after Seizure, Defendant Waived Attorney-Client, Work-Product Privilege

U.S. v. Ary, --- F.3d ----, 2008 WL 565437 (10th Cir. March 04, 2008)

The attorney-client and work-product privileges can be waived in the context of involuntary disclosure or disclosure pursuant to a subpoena or warrant. Waiver is analyzed by looking at how specifically the material is identified; how quickly the defendant informs the government that it seized protected material; and how quickly the defendant seeks judicial action to enforce the protection. In this case, defendant waived the protection as to a few boxes taken from him and his attorney under a warrant. He did not identify the contents as protected, and when he discovered that they were protected at a discovery conference, he waited six weeks to file a motion to seek protection.

Computer and paper inventory records, though hearsay, were admissible as business records under F.R.Evid. 803(6), and the chain of custodians met the requirements of the rule.

Any error in calculating loss for guideline enhancement was harmless.