U.S. v. Simels
U.S. v. Simels
2008 WL 5383138 (E.D.N.Y. 2008)
December 18, 2008
Gleeson, John, United States District Judge
Summary
The court ordered that the ESI, including documents and recordings seized from Simels's offices and conversations between Khan, Simels, and Irving, be reviewed by a special master and a privilege team. The materials in dispute between the parties were to be submitted to a magistrate judge or district court judge for a ruling as to whether they could be turned over to the prosecution team. The government's privilege team was also ordered not to divulge any of this information to either the team prosecuting this case or the team prosecuting Khan's narcotics case.
UNITED STATES of America,
v.
Robert SIMELS, Shaheed Khan, a/k/a “Roger Khan,” a/k/a “Short Man,” and Arienne Irving, Defendants
v.
Robert SIMELS, Shaheed Khan, a/k/a “Roger Khan,” a/k/a “Short Man,” and Arienne Irving, Defendants
No. 08-CR-640 (JG)
United States District Court, E.D. New York
December 18, 2008
Counsel
Benton J. Campbell, United States Attorney, Eastern District of New York, by: Paul Schoeman, Steven L. D'Alessandro, Brooklyn, NY, for the United States of America.Law Offices of Gerald L. Shargel, by: Gerald L. Shargel, Henry E. Mazurek, New York, NY, for Defendant Robert Simels.
Papa, Depaola and Brounstein, by: Steven L. Brounstein, Bayside, NY, for Defendant Shaheed Khan.
Law Offices of Javier A. Solano, PLLC, by: Javier A. Solano, Lawrence K.W. Berg, New York, NY, for Defendant Arienne Irving.
Gleeson, John, United States District Judge
MEMORANDUM AND ORDER
*1 Defendant Robert Simels, joined by defendant Arienne Irving, moves for an order authorizing his counsel to inspect and use at trial materials that may contain information implicating defendant Shaheed Khan's attorney-client privilege and the work product doctrine. Defendant Khan has declined to waive any applicable privileges, and moves for an order holding discovery in this case in abeyance pending resolution of his indictment for narcotics trafficking offenses. For the reasons set forth below, I deny Khan's motion to hold discovery in abeyance and grant in part and deny in part Simels's motion.
BACKGROUND
In June 2006, Shaheed Khan was arrested on narcotics trafficking charges. That case, United States v. Shaheed Khan, 06-CR-255, is currently pending in this district before Judge Dora L. Irizarry. Khan was represented in that matter by, among others, Robert Simels and his associate Arienne Irving. On September 10, 2008, Simels and Irving were arrested for conspiring with Khan to intimidate potential witnesses in Khan's narcotics case. On September 18, 2008, a grand jury returned the indictment in this case against Simels, Khan, and Irving for conspiring to obstruct justice, in violation of 18 U.S.C. § 1512(k).
The instant motions arise out of a claimed collision of two interests: the need for the government to comply with its disclosure obligations under Federal Rule of Criminal Procedure 16 (and of Simels and Irving to receive the resulting disclosure) and Khan's assertion that some of the materials subject to disclosure are protected by his attorney-client privilege and the attorney work product privilege. Specifically, when Simels and Irving were arrested, law enforcement officials executed a search warrant at Simels's law offices and seized documents and other materials (the “non-electronic material”) as well as computers and hard drives (the “electronic material”). Also, pursuant to a court order authorizing the interception of communications pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), the investigators intercepted two conversations involving Khan, Simels, and Irving that took place in the attorney's visiting room of the Metropolitan Corrections Center (“MCC”).[1] Because discovery has progressed differently with respect to each category of information, I discuss them in turn.
On September 16, 2008, Simels sought an order barring the government from reviewing materials seized during the September 10 search of his offices. Magistrate Judge Viktor Pohorelsky scheduled a hearing and ordered the government not to review the materials in the interim. The parties then sought to devise “mutually acceptable procedures for review of the seized evidence.” Gov't Nov. 12 Letter 2. Their agreement is embodied in a letter dated September 30, 2008, which was executed by defense counsel on October 20. Id. at 3.[2] This letter addresses the “review and disclosure” of the material seized from Simels's office, excluding “computer files and data.” Sept. 30 Letter 1. In it, the parties agreed to the following terms:
*2 (1) A team of Assistant United States Attorneys who are not members of the prosecution team [the “privilege team”] have been designated to review the materials....
(2) The [members of the privilege team] are permitted to inspect the materials, along with law enforcement officers who are not involved in the prosecution of this case or the underlying matter United States v. Shaheed Khan, 06-CR-255 (DLI).
(3) A copy of the materials will be made available to counsel for the defendants Simels, Irving and Khan. To the extent an item is not readily capable of being copied, a description of the item will be provided.
(4) Upon disclosure of a copy of the materials and/or a description of the materials, defense counsel will expeditiously review the disclosure and advise the government in writing as to which, if any, of the materials are: (i) subject to the attorney-client privilege for which no exception applies; (ii) subject to the attorney-client privilege for which an exception does apply; and/or (iii) not subject to the attorney-client privilege. Defense counsel will further identify which, if any, of the materials relate to a client other than Khan and are not relevant (“non-Khan related materials”).
(5) Any materials identified by defense counsel as non-privileged or privileged, but subject to an exception, will be turned over to the law enforcement officers and Assistant United States Attorneys prosecuting the case, unless they constitute non-Khan related materials.
(6) If any materials are claimed by defense counsel to be privileged for which no exception applies or non-Khan related materials, and the [privilege team] agree[s], then those items will be returned to a designated custodian of records (with sealed copies retained by the [privilege team] ). Moreover, those items will not be shown to the law enforcement officers or Assistant United States Attorneys prosecuting the case.
(7) Any materials that are in dispute between the parties will be submitted to a United States Magistrate Judge or a United States District Court Judge for a ruling as to whether the materials may be turned over to the prosecution team.
(8) The disputed materials shall be retained by the [privilege team] and will not be shown to the law enforcement officers or Assistant United States Attorneys prosecuting the case, unless and until a Judge determines that the materials are not privileged or fall within any exception to the attorney-client privilege.
All defense counsel in this case received copies of this material. As of the oral argument on December 12, 2008, Simels's defense counsel had decided “not to begin their review of the materials produced by the government on the assumption that the materials are either privileged attorney-client communications or attorney work product.” Simels Mot. 5. Irving's counsel had made the same representation. Irving Response 2.
*3 In its November 12, 2008 letter, the government advised me that “the parties are jointly seeking the appointment of a special master to review computer files and data seized during a search” of Simels's offices. The letter contemplated that the special master, using the staff and facilities of the Drug Enforcement Agency's (“DEA”) forensic computer laboratory, would separate the materials related to Khan's narcotics case from material regarding other clients. The letter asserted that “the DEA personnel engaged in this process will not share any information with the agents or AUSAs handling the instant prosecution or the Khan case.” Gov't Nov. 12 Letter 4. “Once the special master has determined what computer materials are Khan-related, they will be provided to the government's ‘[privilege team]’ and defense counsel so that claims of privilege may be raised as set forth above with respect to hard copy documents.” Id. Khan did not file any papers regarding this request. At a November 14 status conference, I granted the parties' request and appointed David Wikstrom as special master to carry out the process described above. With the consent of the parties, I contacted Special Master Wikstrom, who informed me that he has not yet received a copy of the file directories of the seized equipment. At oral argument on these motions, the parties expressed their intent, once the special master has extracted the Khan-related material, to proceed with discovery of this material in the same way they are handling the non-electronic material. They have not, however, executed a written agreement memorializing this understanding. On December 16, 2008, the government informed me by letter that the privilege team would forward copies of the directories to Special Master Wikstrom and defense counsel by December 19.
On July 7, 2008, a judge in the Southern District of New York entered orders authorizing the audio and video recording of meetings between Khan, Simels, and Irving in the attorney's visiting room of the MCC, where Khan was confined. The orders included a privilege-screening procedure requiring that
meetings between the defendants be recorded but not contemporaneously monitored. The recordings were then to be reviewed by “Wall agents” and a “Wall AUSA” who would “minimize the recording of non-pertinent and privileged conversations. Only those portions of the conversation determined by them to be pertinent and non-privileged would be turned over to the prosecution.
Gov't Nov. 12 Letter 4. Pursuant to this letter, two meetings were recorded. The government has produced copies of these recordings to defense counsel and the Court.
The government's November 12 letter noted that although the privilege screening of these recordings was still in progress, “[t]he prosecuting AUSAs” had “listened to limited portions of the recordings after those portions were cleared by a [member of the privilege team].” Id. at 5 n. 3. On November 12, 2008, Simels submitted a letter requesting that those portions of the recordings be preserved and “produced to the defense for a determination of whether the attorney-client privilege has been violated by this disclosure.” Simels Nov. 12 Letter 2 n. 1. At the November 14 conference, the parties also agreed that, in the future, none of the intercepted material would be provided to the prosecuting team in this case until the defendants had an opportunity to review the intercepts and assert any privilege claims. Gov't Dec. 5 Letter 3.
*4 Simels's November 12, 2008 letter stated that “[s]ince the last court appearance [on October 8, 2008], counsel for Mr. Simels has been informed by his former client and co-defendant in this case, Shaheed Khan, that Mr. Khan refuses to waive any attorney-client privilege or work product protection that he maintains” over materials related to his representation by Simels and Irving in the narcotics case. Simels Nov. 12 Letter 2. At the November 14 conference, Khan advised the court “that he would not waive the attorney-client privilege he enjoys between himself, Simels and Irving. Gov't Reponse 3. I granted Simels's request to file a motion addressing this issue.
On November 21, 2008, Simels filed a motion seeking “an Order from this Court authorizing his counsel to review and use at trial in his defense materials that might otherwise be protected by the attorney-client privilege and attorney work product doctrine.” Simels Mot. 17. On December 3, 2008, Khan filed a response stating that he “asserts his attorney-client privilege as it applies to the materials sought to be used by Mr. Simels in his own defense.” Khan Response 1. The following day, Irving joined in Simels's motion. The government also filed a response, but did not take a position on whether Simels's constitutional rights justified breaching the attorney-client privilege.
DISCUSSION
Simels first seeks my “authorization to inspect ... materials that fall within the attorney-client privilege and work product doctrines ....“ Simels Mot. 13. The parties do not assert that Khan has waived any applicable protections by consenting to the discovery procedures thus far.
At the December 12, 2008 oral argument, Khan agreed to allow Simels and Irving to divulge his potentially privileged material to their attorneys in order to allow them to prepare their defense. I conclude that in doing so, he has not waived his privilege.
Proposed Rule of Evidence 511 provides that a privilege holder “waives the privilege if he ... voluntarily discloses or consents to disclosure of any significant part of the matter or communication.” 3 Weinstein's Federal Evidence § 511App.01 (2d ed.2008). The rule also provides an exception: it “does not apply if the disclosure is itself a privileged communication.” Id. Assuming that Simels's and Irving's proposed divulgences to their own attorneys would constitute “disclosure,” a term whose meaning in the privilege context remains obscure, see 24 Wright & Miller, Federal Practice and Procedure § 5489 (noting that it has traditionally been “easy to assume that ‘disclose’ meant ‘reveal in response to judicial compulsion”), Khan has only consented to that disclosure to the extent that it is itself privileged. Accordingly, under Proposed Rule 511, he would not waive the protection of the privilege.
Of course, the proposed rules of evidence regarding privilege were not adopted by Congress. However, while the Second Circuit has never explicitly adopted proposed rule 511, it has recently and approvingly noted that “courts and commentators” have treated the proposed rules “as a source of general guidance regarding federal common law principles.” In re Grand Jury Investigation, 399 F.3d 527, (2d Cir.2005) (collecting cases). Proposed Rule 511 “demonstrate[s] that serious legal thinkers, applying ‘reason and experience,’ “ have concluded that the privilege should not bar a lawyer from seeking legal advice regarding confidential information, and that the privilege holder should not be punished for allowing such a consultation. Cf. id. I agree with this principle. Though, in the typical setting such disclosures are made to enhance the disclosing lawyer's representation of the client, cf. United States v. Kovel, 296 F.2d 918, 922 (2d Cir.1961), I see no reason not to apply it where, as here, the lawyer seeks legal advice herself. Accordingly, I hold that Khan's consent to Simels's and Irving's consultation with their lawyers regarding his confidential information does not deprive him of the right to assert that privilege in the future. At the oral argument on these motions, defense counsel for Simels and Irving agreed to review the discovery materials, and to assist Khan's defense counsel in asserting Khan's privilege claims as to specific communications (see below). They have also agreed not to “use” the materials, either as evidence or in investigating a defense for Simels or Irving, without first seeking Khan's consent or, failing that, an order from this Court.
*5 The parties suggest that Khan could assert the “qualified privilege” afforded by the work product doctrine to prevent Simels from providing information to his lawyer. United States v. Nobles, 422 U.S. 225, 237, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). However, they have cited no case allowing a client to use this doctrine to prevent a lawyer from voluntarily providing information to his own defense counsel. The lack of authority for their contention is unsurprising for two reasons. First, the work product doctrine primarily regulates compulsory process rather than voluntary disclosure; that is, it is a rule governing “disclosure during pretrial discovery.” Id. at 239 (emphasis added). Second, it would not further the purpose of the doctrine to extend its applicability to the voluntary sharing of information contemplated here. The doctrine exists because lawyers would be unduly hesistant to memorialize their thoughts and actions in written documents if those documents were freely discoverable by their adversaries in litigation. It is easy to imagine that a lawyer might refrain from making notes of an investigative interview if an opposing party could compel production of it without limitation. Id. at 237. But it would be highly unusual for a lawyer to refrain from creating a document because he might one day wish to voluntarily share it with his own counsel in preparation with his defense in a criminal case. There may be other reasons why it would be undesirable to allow him to share client information in this manner, but those reasons do not implicate the work product doctrine, which exists to “shelter the mental processes of the attorney” from “unnecessary intrusion by opposing parties and their counsel.” Id. at 238. However, because Khan has no power to prevent Simels or Irving from divulging potential work product to their counsel at this stage in the proceedings, his failure to prevent this divulgence does not constitute a waiver of whatever protection the doctrine may afford him as these proceedings continue.
Simels also seeks “authorization to ... use at trial in his defense materials that might otherwise be protected by the attorney-client privilege and work product doctrine.” Simels Mot. 17. As discussed above, however, Simels and Irving agreed at oral argument that their defense counsel will review the material in question and assist Khan in asserting any privilege claims. In light of this agreement, any consideration of the propriety of other use by Khan and Simels of this material is premature. Accordingly, to the extent Simels and Irving move for an order authorizing such use, I deny their motion without prejudice.
Relying on his attorney-client privilege, Khan requests that I hold discovery in abeyance until his narcotics case is resolved. Khan Response 4. Although Khan can assert his attorney-client privilege to prevent Simels or Irving from disclosing privileged material at trial, he has thus far failed to establish the existence of privileged information. “The party asserting the privilege must establish the essential elements of the privilege.” Construction Products Research, Inc., 73 F.3d at 473. If that party “does not provide sufficient detail to demonstrate fulfillment of all the legal requirements for application of the privilege, his claim will be rejected.” Id. (internal quotation marks omitted). While Khan may be able to establish that there are privileged communications contained within the information seized and intercepted by the government in this case, his vague assertion that “the information and materials” Simels may seek to introduce at trial were “gleaned and obtained by Mr. Simels in preparing his defense of Mr. Khan” does not suffice to do so. Khan Response 1-2.
*6 Under the circumstances, of course, Khan's present failure to establish a cognizable privilege claim is understandable. Simels, the attorney who might normally be expected to assert the privilege on Khan's behalf, now has a declared interest in disclosing potentially protected communications. Furthermore, not all of the allegedly privileged communications are in the possession of Khan or a lawyer who currently represents him.
Nonetheless, a party cannot suspend discovery indefinitely by simply failing to waive his privilege. And Khan has been in possession of the non-electronic materials and the Title III intercepts for several weeks. At some point, the party's failure to affirmatively assert a cognizable claim of privilege will result in its waiver. United States v. de la Jara, 973 F.2d 746, 749-50 (9th Cir.1992); In re Grand Jury (Impounded), 138 F.3d 978, 981 (3d Cir.1998); SEC v. Lavin, 111 F.3d 921, 929 (D.C.Cir.1997); United States v. Ary, 518 F.3d 775, 784 (10th Cir.2008). Accordingly, Khan must expeditiously review the seized and intercepted information and determine which specific communications he wishes to contend are privileged.
Thus, to the extent Khan moves for an order “hold[ing] this discovery process in abeyance [until] after Mr. Khan's narcotics matter has been resolved,” Khan Response 4, his motion is denied. Khan cites no support for this unusual course of action, and I see no reason to adopt it.[3] Accordingly, I order Khan to submit, under seal, on or before December 30, 2008, a filing listing which of the specific communications in the non-electronic material and the Title III intercepts he contends qualify for any attorney-client privilege or work product protection, and “provid[ing] sufficient detail to demonstrate fulfillment of all the legal requirements for application of the privilege.” Construction Products Research, Inc., 73 F.3d at 473. By the same date, Khan shall also submit this filing to the government's privilege team. The privilege team's response is to be submitted in the same manner on or before January 6, 2009. Any reply from Khan is to be submitted in the same fashion on or before January 13, 2009. I will discuss the material with Khan and the government's privilege team in camera on January 16, 2009 at 3:00 P.M. The privilege team is ordered not to divulge any of this information to either the team prosecuting this case or the team prosecuting Khan's narcotics case pending further order of the Court.
As to the electronic material, the privilege team shall forward copies of the file directories to Special Master Wikstrom no later than December 22, 2008. However, because these directories are likely to contain information relating to other clients of Simels and Irving, they should not be furnished to defense counsel for Khan at this time. Special Master Wikstrom is to forward the Khan-related electronic material to defense counsel for all three defendants by January 5, 2009. He may apply to the Court for more time if, in his view, more time is necessary to process the material. The parties will then proceed as described in the previous paragraph. Assuming that the special master provides the material by January 5, 2009, Khan's privilege claims as to this material shall be filed and served on the privilege team on or before January 26, 2009. The privilege team shall respond by February 2, 2009. Khan's reply shall be submitted on or before February 9, 2009. I will discuss the material with Khan and the government's privilege team in camera on February 16, 2009 at 3:00 P.M.
*7 “Making an in camera submission of materials that counsel contends are privileged is a practice both long-standing and routine in cases involving claims of privilege.” In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 184 (2d Cir.2007). While it is less common to have adversarial presentation from the government's privilege team in such circumstances, all of the parties have consented to this procedure, and I believe it will allow for the fair and expeditious resolution of the thorny issues of privilege that arise when the government seizes materials from a law office. It will no doubt be difficult for Khan to litigate discovery issues in this matter while preparing for trial in his narcotics case. However, this difficulty stems inevitably from the fact that Khan has been indicted as a defendant in two distinct criminal matters, and it does not, without more, outweigh the interests of the public, Simels, and Irving in a speedy trial of this case. See Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).
CONCLUSION
For the reasons set forth above, Simels and Irving's motion is granted to the extent their counsel seek to review the potentially privileged discovery material furnished by the government to prepare their defense in this case, and to assist Khan in asserting any privilege claims, and denied in all other respects. Khan's request to hold discovery in this case in abeyance is denied.
So ordered.
Footnotes
In addition, a confidential informant made consensual recordings of certain conversations the informant had with Khan's lawyers. Because the parties concede that this material is not subject to any evidentiary privilege, I need not address it further in resolving these motions.
The letter signed by Khan's counsel is attached to document number 47 on the docket for this case.
If and when the prosecutors handling this case receive any of the materials discussed in this memorandum and order, they have agreed, and are hereby ordered, not to provide this information in whole or in part to any member of the team that is prosecuting Khan's narcotics case unless and until the government obtains approval from the Court.