Search warrant for business records potentially intruded into the attorney-client privilege. The defendants asserted privilege in a timely fashion as to some records while in the possession of the taint agent, and there was no waiver. As to those records where the defendant unreasonably delayed, there was a waiver. United States v. SDI Future Health, Inc., 2006 U.S. Dist. LEXIS 95794 (D. Nev. October 16, 2006):<\/p>\n
The search warrant in this case, however, was directed at seizing non-privileged business records and tax returns and tax preparation documents. As stated, during the search, taint agents reviewed documents in offices identified by SDI as containing privileged documents. Given the scope of the seizure, it is not surprising that the taint agents may have allowed seizure of certain records that were potentially privileged, or that potentially privileged records were located in other offices not inspected by the taint agents or possibly on SDI’s computers. Defendants have cited no authority, however, which holds that where the Government seizes voluminous business records, it must first employ a taint team to review all of the records to identify potentially privileged documents. On the other hand, SDI’s counsel did timely notify the Government of certain seized files or documents that allegedly contained attorney-client privileged documents. SDI’s counsel also informed the Government of the identities of law firms and attorneys who represented SDI so that the Government could identify potentially privileged documents and protect them from review by the case agents or prosecuting attorneys until a privilege determination was made. Other than the very general statements in the Government’s Opposition and Ms. Damm’s Declaration, the Government provides little or no information as to what steps were taken to segregate such allegedly privileged documents before they were reviewed by the case agents.<\/p>\n
In sum, SDI had some arguably valid objections to the Government’s taint procedures. The problem is that SDI waited more than three years after the search to raise those objections with the Court. That stated, the Court generally agrees with the statement by the court in United States v. Neill, supra,<\/em> 952 F.Supp. at 841 that:<\/p>\n
“Where the government chooses to take matters into its own hands rather than using more traditional alternatives of submitting disputed documents under seal for in camera review by a neutral and detached magistrate or by court-appointed special masters, (citations omitted), it bears the burden to rebut the presumption that tainted material was provided to the prosecution team. Briggs,<\/em> 698 F.2d at 495, n.29 (‘the government is, of course, free to rebut this presumption by showing for example, procedures in place to prevent such intragovernmental communications.’).”<\/p>\n
. . . <\/p>\n
The Court agrees with the approach taken in United States v. Neill, supra,<\/em> which involved similar circumstances. As to documents which Defendants identified and asserted claims of privilege in SDI counsel’s letters dated February 5, 8 and 21, 2002, the Court finds that Defendants have not waived their attorney-client privilege. In so finding, the Court weighs and balances Defendants’ failure to take earlier judicial action to enforce their privilege against the failure of the Government to timely notify Defendants of the privilege determinations made by the taint attorney, combined with the fact that in August-September 2005, the Government still recognized that some of the documents were potentially privileged.<\/p>\n
In regard to other documents, including computer based records, as to which SDI never asserted specific attorney-client privileges, the record supports the conclusion that SDI waived its attorney-client privilege by failing to assert it or to take timely action to protect it. In their Reply (# 67), Defendants attempt to distinguish de la Jara<\/em> and In re Grand Jury (Impounded)<\/em> on the ground that those cases involved a single document and that Bowles v. National Ass’n of Home Builders involved a finite number of ascertainable documents. In contrast, Defendants argue that the Government seized hundreds of thousands of documents which it maintained in its sole control. This is not a sufficient basis for distinguishing those cases.<\/p>\n
There is no evidence, nor is there any basis for believing that the hundreds of thousands of paper documents and computer records seized by the Government constituted potentially privileged attorney-client communications. Within days and weeks after the seizure of its documents, SDI was able to identify potentially privileged documents and files that had been seized by the Government. SDI’s counsel also advised the Government that there might be other privileged documents contained in the seized records which could only be determined after SDI having an opportunity to review the seized records. At that point, the Court would agree that SDI had not waived its privileges because it had, as yet, no opportunity to inspect its files and identify additional privileged records. See In re Grand Jury Subpoenas 04-124-03 and 04-124-05<\/em>, 454 F.3d at 515 (stating that movant could not be criticized for failing to provide a privilege log before he had an opportunity to review the records). See also Burlington Northern & Sante Fe Railway Co. v. District Court., <\/em>408 F.3d 1142 (9th Cir. 2005)(timeliness of privilege log is determined by the relevant circumstances including the ability of the party to review the documents and identify privileged materials). On the other hand, the Court does not agree that a mere generalized assertion that seized records may contain attorney-client privileged materials is, in and of itself, sufficient to preserve the defendant’s privilege indefinitely. See United States v. Ary,<\/em> 2005 WL 2367541 (D. Kans. 2005).<\/p>\n
SDI counsel’s February 21, 2002 letter to AUSA Myhre stated that the Government agreed to make certain SDI records available for copying on February 22, 2002, and “to allow SDI’s representatives to use a scanner and laptop to copy all needed records, ZIP disks and CD ROMS.” Defendants’ Motion (# 39), Exhibit “5”, pages 1-2. According to this letter, the Government also agreed to return other documents to SDI. No evidence has been presented that the Government subsequently refused to return records it agreed to return, or that the Government refused to permit SDI to copy the documents and computer records. AUSA Pomeranz’s May 20, 2004 letter to SDI’s counsel noted the “extraordinary access” that SDI was granted “to review the materials seized both during and after the execution of the search warrant.” Government’s Opposition (# 55), Exhibit “A-2.” No evidence has been submitted by Defendants showing that they disputed the Government’s assertion in this regard.<\/p>\n
It appears that SDI was granted access to the seized records which it could have reviewed to identify additional privileged attorney-client communications. Therefore, it was unreasonable for SDI to fail to take steps to identify and assert its privilege regarding other documents within a reasonable time after it was granted access to the seized records. Assuming, for sake of argument, that the Government had refused to permit SDI to inspect and copy the seized records after February 21, 2002, it would have been incumbent on Defendants to timely pursue judicial action to obtain the records so that additional privileged documents could be identified and objections made to the Government’s use of those records. The Court therefore finds that Defendants waived any attorney-client privilege regarding documents seized during the search of SDI’s corporate headquarters and offsite storage facility on January 31, 2002 that the Defendants did not identify in SDI counsel’s letters dated February 5, 8 and 21, 2002. Defendants therefore are not entitled to an evidentiary hearing regarding the Government’s alleged improper intrusion into the Defendants’ attorney-client privilege regarding those records as to which Defendants made no timely assertion of privilege.<\/p><\/blockquote>\n
Defendant’s version of the police entry into his apartment at 5 a.m., corroborated in significant part by his neighbor who the police had awoken minutes earlier by knocking on her door too, was the more credible version of how the entry occurred. Also, the defendant did not impliedly consent to the police entering his apartment while he got his shoes. Once inside, an officer opened a container and found cocaine. United States v. Antone, 479 F. Supp. 2d 255 (D. R.I. 2007):<\/p>\n
Simply put, the Court credits Antone’s account because he was a credible witness with a believable story, and because his neighbor, Ms. Baker, who corroborated the critical segment of his account, was credible as well and appeared to be a disinterested witness. The Court does not make these findings lightly. Antone is after all a convicted felon fighting to stay out of prison for the rest of his life; and, strangely, he testified that he did not sign a consent form that appears to bear his signature. Also, Ms. Baker testified that Antone spoke clearly when — as was patently obvious to the Court during the hearing — he does not. In spite of these concerns, however, careful inspection of their respective testimony has convinced the Court that, in demeanor and inflection, Antone and Baker told a credible story. Swierk and Mitchell were generally credible as well, but the key difference is that their testimony lacks plausibility while Antone’s and Baker’s makes sense. See Anderson v. Bessemer City<\/em>, 470 U.S. 564, 575 (1985) (observing, in the context of appellate court review for clear error, that “factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.”).<\/p>\n
Assuming for the moment that “come on” in these circumstances has the meaning the government ascribes to it (i.e., an invitation to enter the apartment as opposed to “you gotta be kidding me”), Antone’s account that he said “hold on” makes far more sense in light of what he was asked to do. All parties agree that Det. Swierk did not ask Antone if they could enter his apartment; instead, he asked whether Antone would go to the police station after telling him they were investigating a sexual assault. To this request, Antone responded affirmatively. For Antone, on his own initiative, to have said “come on” in the sense that he was inviting the detectives into his apartment in response to the officer’s request strains credulity. Of course, it is not impossible that a suspect would prefer to answer questions at home instead of the police station and so might parry the request to go to the police station with an invitation to come in and talk. But the disconnect here is that Antone agreed to go off to the police station by saying he had to get his “keys” or “shoes,” thus implying that he did not prefer his apartment, or, at least, did not mind going to the police station.<\/p><\/blockquote>\n
Prison strip search was subjected to a “light” standard of reasonableness, and it was justified by penological interests. Rutland v. Louisiana Dep’t of Pub. Safety & Corrections, 2007 U.S. Dist. LEXIS 22031 (W.D. La. February 6, 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"
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