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Tag: attorney client privilege

  • Meta lawyers tried to block internal research showing teen harm, judge rules

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    A federal court ruled that Facebook parent Meta can’t use attorney-client privilege to block internal documents and research related to teen harm, Bloomberg Law reported. The decision is a setback to Meta in its lawsuits against multiple states that accused the company of making its platforms addictive despite knowing they were harmful to teenagers.

    Judge Yvonne Williams of the Washington, DC Superior Court found that Meta’s lawyers advised employees to “remove,” “block,” “button up” or “limit” portions of internal studies on the harm of social media to teens’ mental health, in order to limit the company’s legal liability. The court said that this advice appeared to be an attempt to cover up or alter information, meaning it falls under the crime-fraud exception to attorney-client privilege. Meta now has seven days to turn over four documents created between November 2022 and July 2023.

    Meta disagreed with the ruling, a spokesperson told Bloomberg in a statement. “These were routine, appropriate lawyer-client discussions and contrary to the District’s misleading claim, no research findings were deleted or destroyed.”

    The ruling is related to lawsuits filed in a California court involving dozens of US state attorneys general. Also involved are hundreds of private civil lawsuits filed by parents, teens and school boards against Meta and other platforms around social media addiction and harms. The first trials are scheduled to start in 2026.

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    Steve Dent

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  • Justice Department convinces federal judge Trump used his attorney in furtherance of a crime in classified docs probe | CNN Politics

    Justice Department convinces federal judge Trump used his attorney in furtherance of a crime in classified docs probe | CNN Politics

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    CNN
     — 

    The Justice Department has convinced a federal judge that former President Donald Trump used one of his defense attorneys in furtherance of a crime or fraud related to the existence of classified documents at Mar-a-Lago, sources familiar with the matter told CNN.

    The finding – part of a major ruling Friday from Judge Beryl Howell of the DC District Court – makes clear for the first time that the Justice Department is arguing it has evidence that Trump may have committed a crime. And Howell ruled that prosecutors met the burden to overcome Trump’s right to shield discussions with his lawyers normally protected under attorney-client privilege.

    The evidence would likely be significant in the obstruction probe being pursued by special counsel Jack Smith’s team. It also underscores how critical the testimony of Trump’s defense lawyers would be in the federal grand jury investigation.

    ABC News first reported the development.

    The revelation comes as the former president continues to face a number of notable investigations and lawsuits, including a separate yearslong investigation into his alleged role in a scheme to pay hush money to an adult film star. There are signs that case is nearing an end and Trump and his advisers are awaiting a potential indictment.

    Trump has not been charged in the documents case, but is still under investigation by the grand jury in Washington. Prosecutors had relied on surveillance videos in arguing their case to Howell, one source said.

    A spokesman for the special counsel’s office did not immediately respond to CNN’s request for comment.

    The Justice Department is still seeking testimony from Trump defense attorney Evan Corcoran, after he cited attorney-client privilege, as well as from another Trump lawyer, Jennifer Little, CNN has learned.

    CNN has reached out to Corcoran and Little for comment.

    Corcoran’s critical testimony in the Mar-a-Lago classified documents investigation is now in the hands of the US DC Circuit Court of Appeals.

    CNN was first to report the action at the DC Circuit Court of Appeals on Tuesday referred to in anonymized court records and confirmed by CNN, following Trump’s loss on Friday before Howell.

    A three-judge panel – Judges Nina Pillard, Michelle Childs and Florence Pan – at the appeals court now is positioned to decide whether to put on hold a lower-court ruling that Corcoran must provide additional testimony to the grand jury about his conversations with Trump. Trump’s team has argued those conversations are covered by attorney-client privilege and should be shielded in the investigation.

    Howell, in her sealed ruling, determined prosecutors were able to show Corcoran’s legal services were used in furtherance of a crime, so attorney-client privilege didn’t apply, sources told CNN.

    What happens next is crucial because the Justice Department has successfully argued that Corcoran’s conversations with Trump would reveal Trump was trying to advance a crime – but the grand jury hasn’t yet heard from Corcoran directly about those conversations.

    If the appeals court sides with the Justice Department, Corcoran could be forced to testify again to a federal grand jury within days, ushering the investigation into the handling of classified documents and obstruction of justice toward a conclusion.

    The extremely tight deadlines – a turnaround essentially unheard of in this court – indicates the seriousness of the matter.

    The DC Circuit judges also mentioned documents involved in the dispute, asking that Trump’s side “specify” them. The court order doesn’t explain any further what’s happened with documents. But Corcoran also was ordered to hand over a number of documents, including handwritten notes and notes transcribed of a verbal conversation.

    Trump sent a statement to his supporters Tuesday night criticizing ABC and calling the details “illegally leaked false allegations.”

    When Corcoran first testified to the grand jury in January, he was asked about what happened in the lead up to the August search of Trump’s Mar-a-Lago residence.

    Corcoran had drafted a statement in June 2022 that attested Trump’s team had done a “diligent search” of boxes moved from the White House to Florida and that all classified documents had been returned. Christina Bobb, the attorney who signed the letter, added the caveat, “to the best of my knowledge.”

    After that, the FBI searched Mar-a-Lago and found hundreds of government records, including classified material, raising questions about the lawyer’s attestation.

    This headline and story have been updated with additional reporting.

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  • Uncertainty On Protection For Some Attorney-Client Communications

    Uncertainty On Protection For Some Attorney-Client Communications

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    As a general matter, communications between attorneys and their clients are “privileged,” meaning they don’t have to be handed over to the other side in litigation relating to the matters covered in the communications. That process of combing through and handing over (or refusing to hand over) documents is called discovery. Wars over discovery often consume tremendous time and effort in the early stages of major litigation.

    The attorney-client privilege has been part of American law for centuries. It seeks to encourage clients to obtain legal advice as they go about their business.

    In the last few decades, as complex litigation has exploded and with it the importance of the discovery process, a huge body of law has developed on the scope and limitations of the attorney-client privilege. As one theme in that body of law, the courts have often said the privilege applies only to communications whose “primary purpose” is for the attorney to provide legal advice. On the other hand, communications that are merely about tax advice or business advice can’t benefit from the privilege.

    Many in the business and legal world believe the “primary purpose” test is too strict and jeopardizes the privacy of attorney-client communications that should remain private. Instead, those people favor a “significant purpose” test: as long as legal advice plays a significant role in the communication, it’s privileged.

    Federal courts had reached varying conclusions on these issues, perhaps applying varying tests. As a result, the United States Supreme Court agreed to hear a case that would have resolved these issues. The case, In re Grand Jury, involved an unnamed attorney who didn’t want to hand over information from his or her files for a grand jury investigation. According to federal law in the Ninth Circuit (California and some other western states), if a communication relates to legal matters but also business or tax matters, the court needs to evaluate all the purposes of the communication, and then protect it only if the legal purpose is at least as significant as any nonlegal purpose.

    In January 2023, the Supreme Court heard oral argument in the case, with a spirited discussion of what the law ought to be and whether existing law works adequately. Instead of deciding the case, though, the Supreme Court changed its mind about even hearing the case, and dismissed the order that had granted a Supreme Court hearing. That leaves the law where it was: somewhat muddled, but perhaps not so bad that the Supreme Court felt the need to do anything about it.

    The federal courts in some parts of the country will continue to apply the “primary purpose” test. Others will apply the “significant purpose” test. Or maybe the two tests aren’t all that different.

    In any case, attorneys and their clients should continue to watch out for “dual-purpose” business (or tax) and legal advice. If a communication contains both, one cannot assume it is protected just because it has some legal advice in it. Counsel may want to provide legal advice in communications that are separate from other forms of advice or communication. If counsel provides both types of advice in the same communication, even the legal advice should be written with an eye toward how it might look if it ever appeared in litigation.

    Also, clients often think that if they include an attorney as a recipient of any email, then the email automatically qualifies for the attorney-client privilege. Actually, that is not true at all.

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    Joshua Stein, Contributor

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  • DOJ asks judge to force Trump White House lawyers to testify in Jan. 6 probe | CNN Politics

    DOJ asks judge to force Trump White House lawyers to testify in Jan. 6 probe | CNN Politics

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    CNN
     — 

    The Justice Department is asking a federal judge to force the top two lawyers from Donald Trump’s White House counsel’s office to testify about their conversations with the former President, as it tries to break through the privilege firewall Trump has used to avoid scrutiny of his actions on January 6, 2021, according to three people familiar with the investigation.

    The move to compel additional testimony from former White House counsel Pat Cipollone and deputy White House counsel Patrick Philbin just last week is part of a set of secret court proceedings. Trump has been fighting to keep former advisers from testifying before a criminal grand jury about certain conversations, citing executive and attorney-client privileges to keep information confidential or slow down criminal investigators.

    But the Justice Department successfully secured answers from top vice presidential advisers Greg Jacob and Marc Short over the past three weeks in significant court victories that could make it more likely the criminal investigation reaches further into Trump’s inner circle.

    Jacob’s testimony on October 6, which has not been previously reported, is the first identifiable time when the confidentiality Trump had tried to maintain around the West Wing after the 2020 election has been pierced in the criminal probe following a court battle. A week after Jacob spoke to the grand jury again, Short had his own grand jury appearance date, CNN reported.

    All four men previously declined to answer some questions about advice and interactions with Trump when they testified in recent months in the secret criminal probe. Trump lost the court battles related to Jacob and Short before the chief judge of the trial-level US District Court in Washington, DC, last month.

    Attorneys for the men whom the DOJ is seeking to compel have declined to comment for this story or haven’t responded to requests. Cipollone and Philbin didn’t respond to requests for comment. A spokesman for the Justice Department also declined to comment.

    All four men have been willing to be as cooperative as the law demands, leaving Trump’s team to handle the fight over certain details in the investigation, the sources say.

    The litigation around Cipollone and Philbin’s testimony may be important for investigators in the long run, given how close the pair was to the Trump leading up to and during the Capitol riot. Prosecutors are likely to aim for the grand jury to hear about their direct conversations with the then-President.

    The disputes – conducted under seal in court because they involve grand jury activity – may also spawn several more court fights that will be crucial for prosecutors as they work to bring criminal charges related to Trump’s post-election efforts.

    Witnesses the federal grand jury has subpoenaed, such as former White House officials Mark Meadows, Eric Herschmann, Dan Scavino, Stephen Miller and campaign adviser Boris Epshteyn, also could decline to describe their conversations with Trump or advice being given to him after the election, several sources familiar with the investigation say.

    Trump and his allies have used claims of confidentiality – both executive privilege and attorney-client privilege – with mixed results in multiple legal quagmires that surround the former President. Those include the January 6 federal criminal investigation, the Mar-a-Lago documents federal criminal investigation, Georgia’s Fulton County investigation of election meddling, and the House select committee probe of January 6 as well. Some of the privilege arguments Trump has raised have never been settled in federal court, and some of the fights could lead to the Supreme Court.

    Trump spokesman Taylor Budowich slammed the “weaponized” Justice Department in a statement and referred to the probes surrounding the former President as “witch hunts.”

    According to the sources, the Justice Department won a trial-level judge’s order at the end of September that said Jacob and Short must testify in response to certain questions over which Trump’s team had tried to claim presidential and attorney-client confidentiality.

    The sealed court case, stemming from the grand jury’s work, had been before the chief judge of the DC District Court, Beryl Howell. Howell refused to put on hold Jacob and Short’s testimony while Trump’s team appealed, a source said.

    The Trump team, meanwhile, took several days to respond to their loss before Howell in court. The Justice Department set a quick-turnaround subpoena date for Jacob, leaving him to head into the grand jury under subpoena on October 6, according to several sources.

    The DC Circuit Court of Appeals is still considering legal arguments from Trump’s defense lawyers and the Justice Department over his ability to make executive and attorney-client privilege claims.

    How that is resolved – either by the appeals court or even the Supreme Court, if Trump pursues it that far – could have significant consequences for the January 6 criminal investigation, and for multiple witnesses who may be refusing to share some of what they know because of Trump’s privilege claims.

    Among a large group of former top Trump officials, Jacob has been one of the most searing voices condemning the then-President’s actions after the election, especially regarding the pressure he and his election attorney, John Eastman, tried to place on then-Vice President Mike Pence to block the congressional certification of the presidential vote.

    Jacob has been a harsh critic of Eastman, who is also of interest to prosecutors, dating back to when Eastman tried to convince Pence’s office the vice president alone could override the vote. He told Eastman at the time the right-wing attorney was a “serpent in the ear” of the President, and wrote while Trump supporters stormed the Capitol on January 6, 2021, “thanks to your bulls**t, we are now under siege.”

    Jacob added to a parade of star witnesses at public House select committee hearings this summer, speaking candidly about his disgust with what he witnessed inside the White House complex from his high-ranking position administration.

    “There is almost no idea more un-American than the notion that any one person would choose the American President, and then unbroken historical practice for 230 years, that the vice president did not have such an authority,” Jacob testified in July.

    But what Jacob and Short knew of Trump’s conversations, they wouldn’t disclose to the House nor to the grand jury until this month.

    In a taped House select committee deposition, Cipollone answered many questions about what happened inside the West Wing on January 6 but declined to describe communications between him and Trump.

    Cipollone’s and Philbin’s roles as White House lawyers raise complicated legal questions about whether Trump can claim confidentiality over the legal advice they gave him, as well as whether a former president can assert executive privilege to hold off criminal investigators.

    President Joe Biden has repeatedly declined to assert executive privilege around January 6 information, essentially leaving the fight for Trump to wage opposite the Justice Department.

    While the courts will look at each situation individually, history isn’t on Trump’s side. Federal prosecutors investigating former Presidents Bill Clinton and Richard Nixon were able to overcome attorney-client privilege assertions for White House counsel as well as executive privilege assertions so the grand jury could hear closely guarded information.

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