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Case 1:20-cr-00330-PAE Document521 Filed 12/03/21 Page2of5 The Honorable Alison J. Nathan December 3, 2021 Page 2 relevant to her memory and capacity as a witness since she cannot recall a highly consequential conversation she had just months ago.” For two reasons, the government is wrong to say that the attorney-client privilege bars Ms. Maxwell from pursuing this line of cross-examination. First, the attorney-client privilege does not apply to Mr. Glassman’s statement to Jane that cooperating and testifying would “help her case.” Second, even if the privilege did apply, it was waived when Mr. Glassman relayed his statement to the government. Ex. 1 (3509-022). “The attorney-client privilege protects from disclosure (1) a communication between client and counsel that (2) was intended to be and was in fact kept confidential, and (3) was made for the purpose of obtaining or providing legal advice.” Jn re County of Erie, 473 F.3d 413, 419 (2d Cir. 2007). “The burden of establishing the attorney-client privilege, in all its elements, always rests upon the person asserting it.” United States v. Schwimmer, 892 F.2d 237, 244 (2d Cir. 1989). In this case, the party asserting the privilege is the government on behalf of Jane. The government has not met its burden. Mr. Glassman’s statement to Jane that her cooperation and testimony would “help her case” is not protected by the attorney-client privilege because “it was [not] intended to be .. . kept confidential.” Erie, 473 F.3d at 419. We know this because the government would want to know (if only for purposes of preparing for cross- examination), and Jane would want the government to know, why she chose to cooperate and to testify against Ms. Maxwell. 1 McCormick on Evid., § 91 (““Wherever the matters communicated ? Davis, 415 U.S. at 317 n.4 (cross examination is “even more important where the evidence consists of the testimony of individuals whose memory might be faulty” (quoting Greene v. McElroy, 360 U.S. 474, 496 (1959))). DOJ-OGR-00008207