6 ms·

USA v David Correia: Devices sent from client to attorney not privileged [pdf]

taejo 6y ago
> It is important to note that if Correia had simply handed his notebooks and electronic devices to his counsel personally, the documents would not be privileged. “[P]re-existing documents . . . not prepared by the [client] for the purpose of communicating with [her] lawyers in confidence . . . acquire[] no special protection from the simple fact of being turned over to an attorney.”
flerchin 6y ago
With a warrant, that seems legit. You can't just say the magic words and make evidence disappear.
- WrtCdEvrydy 6y ago
  Honestly, I would have rather just encrypted everything there, reset the phone and sent it. I wonder if this package was just to muddy the waters.
  - Jeremy1026 6y ago
    Without knowing anything of the case aside from reading this document. This feels like the defendant is between a rock and a hard place and they were hoping to get the information intercepted in an attempt to have the evidence thrown out as their defense strategy.
    - WrtCdEvrydy 6y ago
      Right, I'm not a lawyer but even if you have a copy of those items that drive and phone... if it was found from a different source, would it still be inadmissable?
annaaa6 6y ago
Hi My hot photos are here.. http://eroxxx.club http://eroxxx.club My nickname annaxx
pdabbadabba 6y ago
This title is literally true but misleading. The documents could be seized not because they were sent from overseas, but because the materials inside were not subject to attorney-client privilege in the first place. > It is important to note that if Correia had simply handed his notebooks and electronic devices to his counsel personally, the documents would not be privileged. At least in the U.S., attorney-client privilege does not apply to just any old thing you send to your lawyer. It's applicability depends on the content of the communications. > Because nothing in the package revealed any privileged communications between Correia and his counsel, the package cannot become privileged “merely because it was sent . . . between an attorney and client.”
- DyslexicAtheist 6y ago
  > The documents could be seized not because they were sent from overseas, but because the materials inside were not subject to attorney-client privilege in the first place. agreed. I initially wanted to link to this tweet[1] with more context, but then decided to link to the original content/pdf instead. The word "overseas" should probably be removed but the window that allowed me to edit the title was already over unfortunately. That they happened to be overseas added some nuance (background info) in this specific case but it is confusing in the wider context of the discussion. [1] Paul Oetken rules that your phone can be seized with a warrant from DHL if you're sending it to your lawyer from overseas. So not a good way to avoid your phone being seized if you know you're going to be arrested on arrival. https://twitter.com/emptywheel/status/1275095032954052608 https://twitter.com/emptywheel/status/1275095032954052608
- withinboredom 6y ago
  By this logic, the police can wiretap an attorney's office because they don't always talk about "work." Then it's just a matter of some watercooler conversation in the station to get what you really want to know. Yeah, I know that it's illegal, but corruption doesn't care.
  - gamblor956 6y ago
    That doesn't follow. The de minimus non privileged communication would not support a warrant for a wiretap and would poison every case handled by that firm. (Parallel construction would generally not be permitted, as that's usually only allowed for technical or inadvertent procedural defects in gathering evidence, not intentional and unlawful violations.)
ceejayoz 6y ago
Not sure why this'd be a surprise to anyone. Customs can do the same when you cross borders. https://www.propublica.org/article/can-customs-border-protection-search-phone-legal-rights https://www.propublica.org/article/can-customs-border-protec... > According to federal statutes, regulations and court decisions, CBP officers have the authority to inspect, without a warrant, any person trying to gain entry into the country and their belongings. CBP can also question individuals about their citizenship or immigration status and ask for documents that prove admissibility into the country.
- gowld 6y ago
  Some people think the law is something to hack like a video game or Etherium, not a statement of principles and rules that are applied with human judgment.
DarkWiiPlayer 6y ago
Uh... imagine you stab someone, and they figure out it was you but haven't found the knife yet. As this would be the nail in your coffin, you put the knife in an envelope and mail it to your attourney. Do you think that would work? no? then why should it in this case?
- GavinMcG 6y ago
  I'll argue that that should work, on some level. Communication with one's attorney is privileged for a good reason, and under your theory the police can interfere with that whenever they imagine the package you've mailed isn't a communication.
  - fireattack 6y ago
    I failed to see how you conclude mailing a bloody knife should work from your second sentence (which I agree). Communication should/is privileged, but obviously not any package should be considered as "communication", and even at the worst scenario, having the police to interfere the package whenever they want still doesn't stop you to practice your privilege of communication since there are lots of other forms of communication.
    - caconym_ 6y ago
      So the police decide what is and isn't legitimate communication wrt. qualifying as attorney-client privileged, and that's ok because "there are lots of other forms of communication"? I don't think this is a cut and dried case where it's obvious the authorities were in the wrong, but the above doesn't really pass muster with me. Where is the line deciding which "communications" are and aren't eligible for attorney-client privilege? For instance, if the package contained printed documents, would that be protected?
      - DarkWiiPlayer 6y ago
        > So the police decide what is and isn't legitimate communication Who said that? In the end, it is still the judge who decides to dismiss (or not) a piece of evidence if it was aquired illegally. The police must be able to investigate and creating a complete blind-spot to their investigation would make their work impossible. > I don't think this is a cut and dried case where it's obvious the authorities were in the wrong I think it's a cut and dried case where it's obvious that the authorities were in the right. Why would handing evidence to your attourney make it legally disappear? If anything, it turns the attourney into an accomplice.
rabanne 6y ago
Hmmn, I always thought "communications for the purpose of securing legal advice" was recognized more broadly. If I send a copy of a document which can incriminate myself and was created before hiring a lawyer, to a lawyer for legal advice, can the government seize it? If so, if I outline a document after hiring a lawyer and then send it for legal advice, can the government seize it?
- mc32 6y ago
  I think if you start contacting lawyers something like “hey I did a bank heist, I need your advice” before establishing client-lawyer privilege then that communication isn’t automatically privileged by “confidence”.
  - gamblor956 6y ago
    No you're fine in that situation. That communication is automatically privileged, even if the attorney doesn't take your case, because it was part of a communication soliciting legal advice.
    - mc32 6y ago
      It’s not clear cut if you haven’t discussed terms, representation, etc. the attorney might say, “I’m booked” before asking additional information.
      - gamblor956 6y ago
        That's irrelevant from the point of view of the privilege applying. What matters is that the communication was for the purposes of soliciting legal advice from an attorney, otherwise the DA could just subpoena an attorney that the defendant talked to but was unable to afford or who was too busy to handle the particulars of the defendant's case.
        mc32 6y ago
        That's not how I read it: "The establishment of the attorney-client relationship involves two elements: a person seeks advice or assistance from an attorney; and the attorney appears to give, agrees to give or gives the advice or assistance[1]" and "That “special relationship” between an attorney and his/her client is generally established by mutual assent/consent. This is most often confirmed by a written “retainer”[2]" Other states have similar determinants. [1]https://www.lsba.org/PracticeAidGuide/PAG1.aspx https://www.lsba.org/PracticeAidGuide/PAG1.aspx [2]https://attorneys.uslegal.com/malpractice/establishing-the-attorney-client-relationship/ https://attorneys.uslegal.com/malpractice/establishing-the-a...
merricksb 6y ago
More details of the arrest/accusation here: https://www.nytimes.com/2019/10/16/nyregion/david-correia-ukraine.html https://www.nytimes.com/2019/10/16/nyregion/david-correia-uk...

> It is important to note that if Correia had simply handed his notebooks and electronic devices to his counsel personally, the documents would not be privileged. “[P]re-existing documents . . . not prepared by the [client] for the purpose of communicating with [her] lawyers in confidence . . . acquire[] no special protection from the simple fact of being turned over to an attorney.”

flerchin 6y ago

With a warrant, that seems legit. You can't just say the magic words and make evidence disappear.

WrtCdEvrydy 6y ago
Honestly, I would have rather just encrypted everything there, reset the phone and sent it. I wonder if this package was just to muddy the waters.
- Jeremy1026 6y ago
  Without knowing anything of the case aside from reading this document. This feels like the defendant is between a rock and a hard place and they were hoping to get the information intercepted in an attempt to have the evidence thrown out as their defense strategy.
  - WrtCdEvrydy 6y ago
    Right, I'm not a lawyer but even if you have a copy of those items that drive and phone... if it was found from a different source, would it still be inadmissable?

annaaa6 6y ago

Hi My hot photos are here.. http://eroxxx.club http://eroxxx.club My nickname annaxx

pdabbadabba 6y ago

This title is literally true but misleading. The documents could be seized not because they were sent from overseas, but because the materials inside were not subject to attorney-client privilege in the first place. > It is important to note that if Correia had simply handed his notebooks and electronic devices to his counsel personally, the documents would not be privileged. At least in the U.S., attorney-client privilege does not apply to just any old thing you send to your lawyer. It's applicability depends on the content of the communications. > Because nothing in the package revealed any privileged communications between Correia and his counsel, the package cannot become privileged “merely because it was sent . . . between an attorney and client.”

DyslexicAtheist 6y ago
> The documents could be seized not because they were sent from overseas, but because the materials inside were not subject to attorney-client privilege in the first place. agreed. I initially wanted to link to this tweet[1] with more context, but then decided to link to the original content/pdf instead. The word "overseas" should probably be removed but the window that allowed me to edit the title was already over unfortunately. That they happened to be overseas added some nuance (background info) in this specific case but it is confusing in the wider context of the discussion. [1] Paul Oetken rules that your phone can be seized with a warrant from DHL if you're sending it to your lawyer from overseas. So not a good way to avoid your phone being seized if you know you're going to be arrested on arrival. https://twitter.com/emptywheel/status/1275095032954052608 https://twitter.com/emptywheel/status/1275095032954052608
withinboredom 6y ago
By this logic, the police can wiretap an attorney's office because they don't always talk about "work." Then it's just a matter of some watercooler conversation in the station to get what you really want to know. Yeah, I know that it's illegal, but corruption doesn't care.
- gamblor956 6y ago
  That doesn't follow. The de minimus non privileged communication would not support a warrant for a wiretap and would poison every case handled by that firm. (Parallel construction would generally not be permitted, as that's usually only allowed for technical or inadvertent procedural defects in gathering evidence, not intentional and unlawful violations.)

ceejayoz 6y ago

Not sure why this'd be a surprise to anyone. Customs can do the same when you cross borders. https://www.propublica.org/article/can-customs-border-protection-search-phone-legal-rights https://www.propublica.org/article/can-customs-border-protec... > According to federal statutes, regulations and court decisions, CBP officers have the authority to inspect, without a warrant, any person trying to gain entry into the country and their belongings. CBP can also question individuals about their citizenship or immigration status and ask for documents that prove admissibility into the country.

gowld 6y ago
Some people think the law is something to hack like a video game or Etherium, not a statement of principles and rules that are applied with human judgment.

DarkWiiPlayer 6y ago

Uh... imagine you stab someone, and they figure out it was you but haven't found the knife yet. As this would be the nail in your coffin, you put the knife in an envelope and mail it to your attourney. Do you think that would work? no? then why should it in this case?

GavinMcG 6y ago
I'll argue that that should work, on some level. Communication with one's attorney is privileged for a good reason, and under your theory the police can interfere with that whenever they imagine the package you've mailed isn't a communication.
- fireattack 6y ago
  I failed to see how you conclude mailing a bloody knife should work from your second sentence (which I agree). Communication should/is privileged, but obviously not any package should be considered as "communication", and even at the worst scenario, having the police to interfere the package whenever they want still doesn't stop you to practice your privilege of communication since there are lots of other forms of communication.
  - caconym_ 6y ago
    So the police decide what is and isn't legitimate communication wrt. qualifying as attorney-client privileged, and that's ok because "there are lots of other forms of communication"? I don't think this is a cut and dried case where it's obvious the authorities were in the wrong, but the above doesn't really pass muster with me. Where is the line deciding which "communications" are and aren't eligible for attorney-client privilege? For instance, if the package contained printed documents, would that be protected?
    - DarkWiiPlayer 6y ago
      > So the police decide what is and isn't legitimate communication Who said that? In the end, it is still the judge who decides to dismiss (or not) a piece of evidence if it was aquired illegally. The police must be able to investigate and creating a complete blind-spot to their investigation would make their work impossible. > I don't think this is a cut and dried case where it's obvious the authorities were in the wrong I think it's a cut and dried case where it's obvious that the authorities were in the right. Why would handing evidence to your attourney make it legally disappear? If anything, it turns the attourney into an accomplice.

rabanne 6y ago

Hmmn, I always thought "communications for the purpose of securing legal advice" was recognized more broadly. If I send a copy of a document which can incriminate myself and was created before hiring a lawyer, to a lawyer for legal advice, can the government seize it? If so, if I outline a document after hiring a lawyer and then send it for legal advice, can the government seize it?

mc32 6y ago
I think if you start contacting lawyers something like “hey I did a bank heist, I need your advice” before establishing client-lawyer privilege then that communication isn’t automatically privileged by “confidence”.
- gamblor956 6y ago
  No you're fine in that situation. That communication is automatically privileged, even if the attorney doesn't take your case, because it was part of a communication soliciting legal advice.
  - mc32 6y ago
    It’s not clear cut if you haven’t discussed terms, representation, etc. the attorney might say, “I’m booked” before asking additional information.
    - gamblor956 6y ago
      That's irrelevant from the point of view of the privilege applying. What matters is that the communication was for the purposes of soliciting legal advice from an attorney, otherwise the DA could just subpoena an attorney that the defendant talked to but was unable to afford or who was too busy to handle the particulars of the defendant's case.
      - mc32 6y ago
        That's not how I read it: "The establishment of the attorney-client relationship involves two elements: a person seeks advice or assistance from an attorney; and the attorney appears to give, agrees to give or gives the advice or assistance[1]" and "That “special relationship” between an attorney and his/her client is generally established by mutual assent/consent. This is most often confirmed by a written “retainer”[2]" Other states have similar determinants. [1]https://www.lsba.org/PracticeAidGuide/PAG1.aspx https://www.lsba.org/PracticeAidGuide/PAG1.aspx [2]https://attorneys.uslegal.com/malpractice/establishing-the-attorney-client-relationship/ https://attorneys.uslegal.com/malpractice/establishing-the-a...

merricksb 6y ago

More details of the arrest/accusation here: https://www.nytimes.com/2019/10/16/nyregion/david-correia-ukraine.html https://www.nytimes.com/2019/10/16/nyregion/david-correia-uk...