United States v. Ghavami
2012 U.S. Dist. LEXIS 80593
S.D.N.Y.2012Background
- Defendants Ghavami, Heinz, and Welty are charged with bid rigging related to GICs for municipal bond issuers; counts include conspiracy and wire fraud.
- Government produced over 600,000 audio files, including recordings, with taint-team redactions based on privilege claims by third parties.
- Government seeks an order overruling attorney-client privilege and work product for 27 consensual recordings and unredacted portions of 10 witness-interview documents.
- Privilege claimants opposed the applications and sought to claw back communications; one claimant settled, mooting the application for that claimant.
- This memorandum articulates general privilege/work-product principles and applies them to each claimant to determine if forfeiture applies.
- Court denies the government’s motion and orders return of privileged materials, while encouraging further targeted redactions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether disclosure to a government cooperator forfeits privilege | Government argues waiver via third-party disclosure; privilege holders lost protection | Claimants contend third-party disclosure does not destroy privilege when justified | Waiver denied for privilege and work product; privilege persists (with limited caveats) |
| Whether work product is forfeited by third-party disclosure | Disclosures to cooperators may constitute waivers of work product | Work product remains protected unless substantial risk of disclosure to adversary | Work product protection not forfeited; substantial-risk standard not met in these disclosures |
| Whether common/ joint defense interests affect waiver | Common-interest doctrine may preserve privilege across cooperating entities | Privilege holders’ communications tied to joint defense should remain privileged | Common-interest doctrine does not create new protection; waivers addressed under context, but protection preserved where applicable |
| Giglio impeachment material versus privilege protections (UBS/others) | Giglio requires disclosure of impeachment material | Privilege cannot be overridden by impeachment needs if it breachs privilege | Giglio does not override privilege; government should seek agreement to characterize communications for Giglio without breaching privilege |
Key Cases Cited
- In re County of Erie, 473 F.3d 413 (2d Cir. 2007) (privilege elements and burden on proponent; common-law principles cited)
- United States v. Mejia, 655 F.3d 126 (2d Cir. 2011) (attorney-client privilege scope and waivers considered)
- Upjohn Co. v. United States, 449 U.S. 383 (Supreme Court 1981) (corporate privilege extends beyond control-group employees to obtain legal advice)
- In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379 (2d Cir. 2003) (work product protection standards and waiver principles)
- Hickman v. Taylor, 329 U.S. 495 (Supreme Court 1947) (origin of work product doctrine and protection of attorney's mental impressions)