United States v. Roscoe, 5:07-cr-00373

Government seeks to admit communications between Cigarettes Cheaper! and its counsel from Nov. 21, 2003 re Comerica Bank; involves restatement of inventory.
Court previously ordered on Jan. 6, 2011 that attorney-client privilege was waived by voluntary disclosure of the subject.
Defendants argued both personal and corporate attorney-client privileges applied; issues included whether Cigarettes Cheaper! was defunct.
Bernheim testified as corporate counsel; questions arose about his authority to assert the corporate privilege and Cigarettes Cheaper!'s status.
Court holds Cigarettes Cheaper! not defunct for privilege purposes and confirms waiver; scope limited to discussions from Nov. 21–24, 2003; work product remains protected.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Can Roscoe assert a personal attorney-client privilege?	Roscoe may rely on Bevill criteria to justify personal privilege.	Bevill test not satisfied; third-party Mazur present; privilege unavailable.	Personal privilege not established for Roscoe.
Can Cigarettes Cheaper! assert a corporate attorney-client privilege?	Corporation has privilege to protect corporate communications.	Corporation defunct or lack of active status defeats privilege.	Corporation privilege exists; not defunct for purposes of assertion.
Did Ned Roscoe's disclosures waive the corporate privilege?	Waiver occurred via voluntary production under subpoena.	Disclosures were authorized to protect corporate privilege; scope unclear.	Waiver affirmed; Roscoe had authority to waive on behalf of Cigarettes Cheaper!.
What is the scope of the waiver?	Waiver extends broadly to all communications with counsel.	Waiver should be limited to specific disclosed subjects.	Waiver limited to content of Nov. 21, 2003 discussions to Nov. 24, 2003 meeting; work product preserved.
Does crime-fraud exception apply to the challenged communications?	Crime-fraud exception would render communications non-privileged.	Crime-fraud not reached if privilege exists and is not waived.	Not reached due to waiver; need not decide crime-fraud issue here.

United States v. Ruehle, 583 F.3d 600 (9th Cir. 2009) (federal common law governs attorney-client privileges in federal cases)
In re Bevill, 805 F.2d 120 (3d Cir. 1986) (Bevill test for personal privilege applicability by corporate officers)
United States v. Graf, 610 F.3d 1148 (9th Cir. 2010) (Bevill test applied in corporate privilege analysis)
Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343 (1985) (attorney-client privilege impedes discovery; strict construction)
City of Rialto v. United States Dep't of Defense, 492 F. Supp. 2d 1193 (C.D. Cal. 2007) (defunct status affects ability to assert privilege; practical realities govern)