U.S. v. Ary, 518 F.3d 775 (10th Cir. 2008)

Brief Summary
Defendants who wish to protect privileged materials seized by the government must specifically identify the materials, promptly inform the government of the issue and, if necessary, promptly seek protection through judicial action.

Complete Summary
While President of the Kansas Cosmosphere and Space Center, defendant Ary was convicted of stealing property belonging to NASA. In December 2003 the government seized items from Ary’s residence including potentially privileged documents. Four days later, Ary’s attorney, Thompson, wrote to the prosecutor, stating it “appears as though the search resulted in the seizure of computers and other files containing what is clearly attorney-client privileged communications.” Id. at 780. In the following weeks, Thompson identified which files he believed to be privileged, but the prosecutor assured Thompson that a “taint team” was working on filtering out privileged information. When the taint team was finished, items deemed privileged were returned to Ary. Because Ary had an inventory of the seized items, he was then on notice as to what the government did not deem privileged.

In May 2005, Thompson went to the United States Attorney’s office to review discovery materials. Thompson found two boxes that held potentially privileged material. He photocopied this material, but he did not then review it nor did he inform the prosecution that the material was potentially privileged. Six weeks later, Thompson moved to suppress use of the documents in the two boxes. The district court held that privilege was waived.

On appeal, the Tenth Circuit upheld the district court’s ruling under an abuse of discretion standard. The Tenth Circuit adopted a three-factor test under which the question of waiver following involuntary disclosure turns on: “(1) the specificity with which the defendant identifies the material; (2) the expediency by which the defendant informs the government that it seized protected material; and (3) the expediency by which the defendant seeks judicial action to enforce the protection.” Id. at 783. As in other jurisdictions, this waiver analysis applied to both attorney-client privilege and work product protection.

The court held that Ary failed to meet all three prongs. Regarding the second and third prongs, the court held the six week period between Thompson’s review of the boxes and his motion to suppress was not sufficiently expedient. The court also noted that Ary may have waived privilege when the taint team’s review was finished because, at that point, Ary was on notice that the government did not consider the two boxes privileged, yet failed to object at that time.

Significance of Opinion
Although the Tenth Circuit adopted this test from other jurisdictions, the circuits may disagree on its application. Nonetheless, when privilege rights are at issue, very prompt action is better than delay.

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