Attorney-client and work product privilege to seized materials must be promptly asserted or it is waived

Attorney-client and work product privileged material was seized during execution of a search warrant. The defendant raised privilege but did not adequately preserve it. The Tenth Circuit held that privilege was waived from failure to promptly pursue privilege. United States v. Ary, 518 F.3d 775 (10th Cir. 2008):

When the party seeking protection fails to specifically identify the materials protected, courts have uniformly found a waiver. In the context of a discovery request in civil litigation, the Ninth Circuit held that general assertions of privilege or work-product protection are insufficient. See Burlington N. & Santa Fe Ry. Co. v. District Court, 408 F.3d 1142, 1149 (9th Cir. 2005); see also United States v. White, 970 F.2d 328, 334-35 (7th Cir. 1992) (holding failure to timely assert attorney-client privilege for each specific communication or document constitutes waiver); United States v. Neill, 952 F. Supp. 834, 842 (D.D.C. 1997) (concluding failure to specifically identify computer files seized by government as protected by the attorney-client privilege constitutes waiver). There is no waiver, however, when the court is provided enough specificity to evaluate whether each document is protected. See Burlington N. & Santa Fe. Ry. Co., 408 F.3d at 1149.

Identification of protected material must occur in a timely fashion. Where the party seeking protection “fails to pursue all reasonable means of preserving the confidentiality of the privileged matter” the protection is waived. See de la Jara, 973 F.2d at 750 (holding defendant waived attorney-client privilege when he made no attempt to assert privilege for six months); Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984) (holding failure to make a timely showing waived work-product protection under Fed. R. Civ. P. 34(b)).

Some courts have held that asserting protection solely to the government is insufficient and that invocation of judicial intervention is required. See In re Grand Jury (Impounded), 138 F.3d at 982. For example, in In re Grand Jury (Impounded) the defendant’s office was searched and a file containing attorney work-product was seized. Id. at 979-80. Shortly after learning of the seizure, the defendant’s attorney notified the United States Attorney and asserted protection under the work-product doctrine. Id. The defense was informed that the government had determined the documents were not protected. Id. at 980. Although the defendant made several additional requests to the government, he waited for another four months before filing a motion to compel the return of the file. Id. at 981. Although the defendant initially made a timely assertion of work-product protection, the court held his subsequent assertions were insufficient once the government informed the defense it would not relinquish the file voluntarily. Id. at 981-82. “Judicial enforcement of the privilege was the only remedy that [the defendant] could have obtained which would have foreclosed the United States from further use of the seized file.” Id. at 982. The court reasoned that a reasonable person seeking to assert the work-product doctrine would not only inform his adversary, but also seek a judicial determination. Id.

Requiring assertions of privilege and work product to be made expeditiously serves the goals underlying the attorney-client privilege and work-product doctrine. The doctrine and privilege both work to shield confidences from adversaries. Both promote broader public interests by advancing the proper administration of legal claims. See Upjohn Co., 449 U.S. at 389 (attorney-client privilege supports proper administration of justice); Hickman, 329 U.S. at 510 (work-product doctrine supports orderly prosecution and defense of legal claims). The key is that the party seeking protection must treat the document or communication as confidential. When a party delays in asserting protection, however, the adverse party is free to continue to use the material, thereby negating its confidential character. See In re Grand Jury (Impounded), 138 F.3d at 982. The government’s investigation may irreparably rely on the protected information, thereby tainting the investigation. Id. By failing to minimize the damage caused by the breach of confidentiality, the defendant is prohibited from using the privilege or doctrine to prohibit the government’s use of the information. See de la Jara, 973 F.2d at 750.

Thus, in the case of an involuntary disclosure, the party asserting the work-product doctrine or attorney-client privilege must pursue all reasonable means to preserve the confidentiality of the material. Taking into account the circumstances surrounding the disclosure, we will examine the specificity with which Ary identified the material, whether protection was asserted in a timely fashion, and whether additional steps, such as judicial action, were necessary for protection.