DOJ-OGR-00008208.jpg

Case 1:20-cr-00330-PAE Document521 Filed 12/03/21 Page3of5 The Honorable Alison J. Nathan December 3, 2021 Page 3 to the attorney are intended by the client to be made public or revealed to third persons, obviously the element of confidentiality is wanting.”) (8th ed. Jan. 2020 update). Jane’s motivation for cooperating with the government and testifying against Ms. Maxwell is essential to the government’s assessment of Jane’s credibility and its preparation for her cross- examination. Predictably, then, Mr. Glassman shared with the government the advice he gave to Jane, so the information was not “in fact kept confidential.” See Erie, 473 F.3d at 419; see also United States v. Bergonzi, 216 F.R.D. 487, 494 (N.D. Cal. 2003) (addressing assertion of attorney-client privilege in respect to documents sought by the defendant in a criminal case and holding that privilege did not apply because there was no evidence “the Company intended the communications to remain confidential, as it must have in order for the privilege to apply in the first instance” and because “the Company failed to meet its burden of persuading the Court that the attorney-client privilege applies to the documents sought by Defendants”). The attorney- client privilege thus does not apply. But even if the privilege did apply, the privilege was waived. “It is well-established that voluntary disclosure of confidential material to a third party generally results in forfeiture of any applicable attorney-client privilege.” United States v. Ghavami, 882 F. Supp. 2d 532, 537 (S.D.N.Y. 2012). That is exactly what happened here. Mr. Glassman voluntarily communicated with the government that he advised Jane to cooperate with the government because it would “help her case,” thereby waiving the attorney-client privilege. And as Fed. R. Evid. 502(a) recognizes, “[w]hen the disclosure [of confidential information] is made in a federal proceeding or to a federal office,” that generally “waives the attorney-client privilege or work-product DOJ-OGR- 00008208