United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
GREGORY VAN TATENHOVE UNITED STATES DISTRICT JUDGE.
the Court now are three motions relating to a claim of
privilege over certain documents related to this matter.
While attorney-client privilege promotes a broad public
interest in allowing “full and frank communication
between attorneys and their clients, ” such a privilege
is not absolute, and it does not include all communication
between clients and their attorneys. Upjohn Co. v. United
States, 449 U.S. 383, 389 (1981); Reed v.
Baxter, 134 F.3d 351, 357 (6th Cir. 1998). Defendant
Gerald G. Lundergan, as well as the Alison for Kentucky
Campaign Committee, have requested various protections to
exclude materials they believe are privileged. [R. 105; R.
107; R. 108.] Because the movants have not established that
the Government actually possesses any documents that remain
privileged, these motions are denied.
Government began investigations into Mr. Lundergan's
involvement in alleged campaign finance violations during the
2014 United States Senate Race. [R. 134 at 2.] Primarily, the
United States utilized search warrants and subpoenas to
review emails and financial documents for potential evidence.
Id. Anticipating issues with attorney-client
privilege, both Defendants furnished a list of attorneys and
their email addresses to the Government to allow the
Government to filter out all communications with those
attorneys. [R. 134-3.]
categories of materials are at issue here: documents and
devices. [R. 174 at 60-61.] The documents were uploaded to
the Government's review software, Relativity, where it
was reviewed by a taint team with no communication with the
prosecution team. Id. The software and the taint
team reviewed the documents and filtered for privilege, after
which time those documents were provided to the Alison for
Kentucky Campaign Committee, who flagged additional documents
for privilege. Id. The prosecution team did not have
access to any of these privileged documents. Id.
electronic devices were seized pursuant to a search warrant.
Id. at 63. The Federal Bureau of Investigation
seized the devices, uploaded the content of those devices to
their software, and then ran keyword searches on the devices
for any potential documents germane to the investigation.
Id. After this, the FBI removed the devices and the
content of the devices from their system and replaced the
devices in evidence. Id. at 64. The Government kept
copies only of information related to the investigation; all
other information is stored on these devices and kept in the
possession of the FBI, not accessible by the prosecution
team. Id. at 64-67. That subset of data deemed
germane was then migrated to Relativity, where the
Government's taint team reviewed for privilege.
Id. Anything found to be irrelevant to the
investigation, or that was determined to be privileged, was
not accessible by the prosecution team. Id. The
Government did, however, make the entire device available to
the Defendants and their counsel. [R. 46.]
Lundergan is unhappy with this process and believes there are
privileged documents that the prosecution team was able to
access. [R. 108.] He argues for an evidentiary hearing akin
to the hearing in Kastigar v. United States. [R.
107.] Additionally, the Alison for Kentucky Campaign
Committee has requested permission to intervene and seek a
protective order. [R. 105.]
oldest established privilege, attorney-client privilege
serves as “a necessary foundation for the adversarial
system of justice.” In re Lott, 424 F.3d 446,
450 (6th Cir. 2005). This privilege exists to promote
“full and frank communication between attorneys and
their clients and thereby promote broader public interests in
the observance of law and the administration of
justice.” Upjohn Co. v. United States, 449
U.S. 383, 389 (1981).
all communications between a lawyer and a client are
privileged, and whether the privilege applies is a question
of both law and fact. Reed v. Baxter, 134 F.3d 351,
355 (6th Cir. 1998). As an exception to the general rule that
all relevant evidence is admissible, the attorney-client
privilege is narrowly construed. In re Grand Jury
Investigation No. 83-2-35, 723 F.2d 447, 451 (6th Cir.
1983). In the Sixth Circuit, attorney-client privilege is
established by the following elements:
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by
the legal adviser, (8) unless the protection is waived.
Id. at 355-56 (citations omitted). The party
asserting attorney-client privilege bears the burden of
establishing the existence of that privilege. United
States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999).
This privilege does not shield from disclosure any
statements made by the client or the attorney in the presence
of a third party. Reed, 134 F.3d at 357 (6th Cir.
such privilege can be waived, explicitly or implicitly, when
an individual or corporation discloses communications to
third parties or ...