United States v. Salyer, 853 F. Supp. 2d 1014

This order concerns a district court audit of 119 jailhouse calls between defendant Salyer and attorney Longoria to determine if they were attorney-client communications.
Judge Karlton previously directed the undersigned to audit the calls to assess privilege; as to privileged calls, the government’s listening motions would be denied, and the defendant’s suppression motion granted.
The court initially found most calls were not privileged but invited in-camera submissions from defense counsel identifying privileged communications.
Defense submitted a broad list (112 calls) asserting privilege without specific justification; the court conducted a careful audit of the recordings.
The court ultimately concluded most calls were personal and not privileged, but identified five calls that were protected by the attorney-client privilege.
The governing question narrowed to whether, and which, calls between Salyer and Longoria were attorney-client communications and thus privileged.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Salyer sought/legal advice from Longoria in the calls.	Salyer asserts Longoria provided privileged legal advice.	Salyer contends Longoria acted as attorney, not merely a friend.	Calls not primarily for legal advice are not privileged.
Whether Longoria served as a professional legal advisor in those calls.	Longoria acted as counsel in the case and related matters.	Longoria was a close friend; not counsel of record; predominantly personal role.	Longoria did not function as attorney in most calls; privilege not established.
Which specific calls, if any, are protected by attorney-client privilege.		A blanket claim covers many calls; need specific privileged communications.	Calls 633220K0, 723220U5, 753220UR, 753Y10RY, and 753Y10RZ are privileged; others are not.
Whether the predominate purpose of the calls was to obtain legal advice.		Some calls contained legal discussion; majority were personal.	Predominant purpose of most calls was personal; privilege not established.
What is the procedural consequence for government access to the recordings.		Privilege determinations limit disclosure.	Government may listen to non-privileged calls; five privileged calls remain protected.

United States v. Landof, 591 F.2d 36 (9th Cir.1978) (attorney-client privilege requires actual legal advice, not merely status of attorney)
Weinstein’s Federal Evidence, Weinstein’s Fed. Evid. 2d () (classic treatise on privilege law (presents general standards))
United States v. Martin, 278 F.3d 988 (9th Cir.2002) (burden to identify specific communications and establish privilege; not blanket claims)
United States v. Ruehle, 583 F.3d 600 (9th Cir.2009) (require segregation of privileged from non-privileged information)
In re Kinoy, 326 F.Supp. 400 (S.D.N.Y.1970) (context of distinguishing attorney from personal communications)
United States v. Chen, 99 F.3d 1495 (9th Cir.1996) (privilege extends to communications with attorneys acting in advisory role)