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United States v. Lundergan

United States District Court, E.D. Kentucky, Central Division, Lexington

August 1, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GERALD G. LUNDERGAN, Defendant.

          MEMORANDUM OPINION & ORDER

          GREGORY VAN TATENHOVE UNITED STATES DISTRICT JUDGE.

         Before 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.

         I

         The 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.]

         Two 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.

         Additionally, 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.]

         Mr. 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.]

         II

         As the 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).

         But not 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. 1998).

         Furthermore, such privilege can be waived, explicitly or implicitly, when an individual or corporation discloses communications to third parties or ...


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