C.D.Cal.: Limited motion for return of property doesn’t prevent transfer from feds to state; privilege issues can still be litigated later

The petitioner moved for return of property, seized computer information, under Rule 41(g) for purposes of conducting business. The government moved to transfer the information to state authorities for their own investigation. The fact there is a potential attorney-client privilege issue is a matter for litigation and a taint team, but it’s not a reason to bar transfer of the information to the state. Burum v. United States, 2014 U.S. Dist. LEXIS 191646 (C.D.Cal. Aug. 4, 2014):

Courts have long recognized the importance and necessity of the cooperation between state and federal authorities, including prosecutors, in pursuing the objectives of justice. See Bartkus v. People of State of Illinois., 359 U.S. 121, 123-124 (1959) (explaining that cooperation between state and federal prosecutors is conventional practice, even after prosecution has failed to result in a conviction at one level). Courts have frequently “reaffirm[ed] the settled rule that ‘[n]o constitutional barrier exists to this norm of cooperative effort.'” United States v. Zone, 403 F.3d 1101, 1107 (9th Cir. 2005) (quoting United States v. Figueroa-Soto, 938 F.2d 1015, 1020 (9th Cir. 1991)) (second alteration in original). Accordingly, Burum faces a significant burden in persuading the Court that such normal cooperation should not be permitted.

Burum argues that the transfer of all seized hard copy documents should be disallowed as it would necessarily involve the sharing of materials protected by attorney-client privilege. (Opp’n 4-11, ECF No. 30.) The Court certainly acknowledges and agrees with Burum as to the importance of attorney-client privilege. However, “[t]he attorney-client privilege, like most other privileges, is an evidentiary privilege-it protects against the compelled disclosure in court, or in court-sanctioned discovery, of privileged communications. It is not a roving commission to police voluntary, out-of-court communications.” Wharton v. Calderon, 127 F.3d 1201, 1205 (9th Cir. 1997); accord Bittaker v. Woodford, 331 F.3d 715, 731-32 (9th Cir. 2003); see also United States v. Rogers, 751 F.2d 1074, 1077 (9th Cir.1985). Attorney client privilege prevents the compelled revelation of confidential communications in judicial proceedings. It does not apply outside of “forced disclosure of a confidential communication in a judicial proceeding.” Id. (quoting Rogers, 751 F.2d at 1077). “There is a fundamental distinction between the use of privileged information at trial, and its use during the investigatory period.” Rogers, 751 F.2d at 1079. Thus, the allegedly privileged nature of Burum’s documents does not prohibit the Government from transferring the documents to the state authorities.

Furthermore, the Court notes that the State court overseeing Burum’s state proceeding has an order establishing a Special Master Review Procedure. (Mot. 6; Reply 2-3, ECF No. 31.) The Government represents that any of Burum’s materials transferred to state custody pursuant to this Order will be reviewed by the Special Master for, among other things, privilege. (Reply 2-3.) Burum will also have an opportunity there to assert the inadmissability of the allegedly confidential materials. In sum, the State court is well-positioned to ensure that Burum’s privileges are protected and to make evidentiary rulings regarding evidence.

Accordingly, the Court cannot find reason to bar the sharing of hard copy documents with the California Attorney General’s Office and the San Bernardino County District Attorney’s Office.