Technological Advances Does Not Lower Defendant’s Proof of Prejudice Standard

Even if privileged computer files are improperly accessed by the government, the defendant still needs to show that the access prejudiced them by proving that the material was used during the case

United States v. DeLuca, 2016 BL 354269, 11th Cir., No. 15-12033, 10/25/16.

The Eleventh Circuit ruled that the defendant must show they were prejudiced when privileged information is improperly turned over to a prosecutor, even when the files are electronic. The issue was created during an investigation by a “filter team” during a financial fraud investigation that improperly sent attorney-client communications to the prosecutors involved in the case. The defendant argued that he should not need to prove prejudice because computer files make it impossible to identify what has been opened or been seen by prosecutors, whereas it is easier to determine what paper files were seen or used by a prosecutor in preparing their case. The defendant further argued that a new standard should be used for electronic files because “[t]he rules that were reasonable in a world run on paper are not suitable to the electronic age.”

The circuit court, however, rejected this argument. It refused to lower the standard of proof for high-tech violations of an attorney-client privilege, stating “Even accepting his contention that technological changes have made accessing privileged communications easier than it used to be in an age of paper records, it does not clearly follow that showing prejudice is more difficult than it used to be.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_DeLuca_No_1512033_NoNonArgume_Calendar_2016_BL_35?1478716727

Ex-Governor Cannot Hide Emails Shared with State Lawyers in Corruption Investigation

The former Oregon governor cannot prevent emails shared with state lawyers from being introduced to a grand jury because of attorney-client privilege

United States v. Kitzhaber, 2016 BL 224564, 9th Cir., No. 15-35434, 7/13/16.

   The Ninth Circuit found that emails sent by a former governor to the state’s attorneys are not completely shielded by the attorney-client privilege in a grand jury investigation. The former governor used several personal email accounts to communicate with state attorneys regarding ethics violations, but, unbeknownst to him, were archived on state servers.

   The court rejected the ex-governor’s argument that he had an attorney-client privilege while sending those emails. While emails exchanged with privately held attorneys were protected, any email sent to the state attorneys were not because “[w]hatever privilege such communications may implicate is held by the State of Oregon, not [the governor] personally.” In addition, the court held that communication with a state’s attorney over “a consultation concerning conflict-of-interest or ethics laws is a consultation about an office holder's official actions and obligations. [A]n executive officer who consults with a government attorney concerning whether to let a certain contract go to a person with whom he has business dealings, or to a relative, is seeking advice about carrying out his official duties.”

http://www.bloomberglaw.com/public/document/United_States_v_Kitzhaber_No_1535434_2016_BL_224564_9th_Cir_July_.