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Case 1:20-cr-00330-PAE Document528 Filed 12/06/21 Page6éof8 there is no reason to think Jane expressly or implicitly authorized Glassman to waive her privilege on the topic of Glassman’s advice to Jane about assisting the Government. Despite the Court’s invitation, the defendant has offered no argument to the contrary. 12/01/21 Tr. at 573 (“THE COURT: “Well right. But whether he waived — whether the privilege — it’s the client’s to waive, I think. That will be part of the briefing, I suppose.”). Nor is this a case in which Jane impliedly waived privilege. Jane has not testified “concerning portions of the attorney-client communication,” placed “the attorney-client relationship directly at issue,” or asserted “reliance on an attorney’s advice as an element ofa claim or defense.” Jn re County of Erie, 546 F.3d at 228. On that first point, Jane was asked whether she “knew” that her cooperation with the Government would benefit her civil litigation or her claim with the victim’s compensation fund, and she said no. 12/1/21 Tr. at 581. Neither of those answers described portions of her communications with her attorney. It is the defense which is injecting the attorney-client relationship into the tral by attempting to use privileged communications to impeach Jane. That cannot constitute a privilege waiver by Jane.? Third, even if Glassman’s statement to the Government could waive Jane’s privilege, the Court should exclude that evidence under Rule 403. Any waiver would at most cover whatever statement Glassman made to the Government, and not the subject matter of his advice to Jane about cooperation. See 12/01/21 (defense counsel stating that “whatever he communicated to the government is what was waived. I don’t think he’s waived — I’m not arguing for subject matter waiver, for example.”). The defense has other avenues to suggest that cooperating with the 3 For these reasons, the cases cited by the defense are inapposite. (Def. Letter at 3-4). They concern voluntary disclosures of privileged information. But Jane did not voluntarily disclose any privileged information. 6 DOJ-OGR- 00008242