Filed: May 28, 2019
Latest Update: May 28, 2019
Summary: MEMORANDUM OPINION AND ORDER JAMES O. BROWNING , District Judge . THIS MATTER comes before the Court on Defendant Anthony Cordova's objection to the introduction of jail calls between him and his attorney, Ms. Marcia A. Morrissey, on grounds of attorney-client privilege. See Draft Transcript of Trial Day 7 at 349:14-16 (taken July 17, 2018)(Morrissey)("Tr."). 1 Plaintiff United States of America contends that the attorney-client privilege does not apply, because the telephone calls wer
Summary: MEMORANDUM OPINION AND ORDER JAMES O. BROWNING , District Judge . THIS MATTER comes before the Court on Defendant Anthony Cordova's objection to the introduction of jail calls between him and his attorney, Ms. Marcia A. Morrissey, on grounds of attorney-client privilege. See Draft Transcript of Trial Day 7 at 349:14-16 (taken July 17, 2018)(Morrissey)("Tr."). 1 Plaintiff United States of America contends that the attorney-client privilege does not apply, because the telephone calls were..
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MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on Defendant Anthony Cordova's objection to the introduction of jail calls between him and his attorney, Ms. Marcia A. Morrissey, on grounds of attorney-client privilege. See Draft Transcript of Trial Day 7 at 349:14-16 (taken July 17, 2018)(Morrissey)("Tr.").1 Plaintiff United States of America contends that the attorney-client privilege does not apply, because the telephone calls were "subject to monitoring and recording." Tr. at 349:24-25 (Castellano). Cordova did not make the telephone calls on the attorney line. See Tr. at 349:21-22 (Castellano). Ms. Morrissey did not, however, hear the preamble warning that the call was recorded on the jail telephone line from which Cordova made the calls, see Tr. at 349:21-350:5 (Morrissey), because Cordova made the calls to his wife, who then began a three-way call with Ms. Morrissey, see Tr. at 350:2-5 (Morrissey).
The Court concludes that, despite Ms. Morrissey's lack of knowledge about the preamble, the attorney-client privilege does not apply. "The attorney-client privilege is lost if the client discloses the substance of an otherwise privileged communication to a third party." United States v. Ryans, 903 F.2d 731, 741 n.13 (10th Cir. 1990)(citing United States v. Bump, 605 F.2d 548 (10th Cir. 1979); United States v. Jones, 696 F.2d 1069 (4th Cir. 1982)); United States v. Bump, 605 F.2d at 551 ("Even if the privilege exists it is waived when the client voluntarily reveals the information to another or his attorney does so with his consent."). "This is true even if the disclosure is inadvertent." United States v. Ryans, 903 F.2d at 741 n.13 (citing In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir. 1984); Weil v. Inv./Indicators, Res. & Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981); In re Grand Jury Investigation, 604 F.2d 672, 675 (D.C. Cir. 1979); 8 Wigmore on Evidence § 2327 at 635 (McNaughton rev. 1961 & 1987 Supp.)). Cordova — the client — heard the preamble, and should have known that the calls were monitored and recorded. Moreover, Cordova's subjective intent regarding whether to disclose the information and Ms. Morrissey's misconception that the calls were confidential are irrelevant. Cordova disclosed the information. Accordingly, the Court denies Cordova's objection.
IT IS ORDERED that Defendant Anthony Cordova's objection to the introduction of jail calls between him and his attorney, Marcia A. Morrissey, on grounds of attorney-client privilege is overruled.