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Case 1:20-cr-00330-PAE Document544 Filed 12/14/21 Page5of9 The Honorable Alison J. Nathan December 13, 2021 Page 5 Scarola to the government about Carolyn was also not for the purpose of obtaining or providing legal advice, is not a communication by Carolyn, and “it was [not] intended to be. . . kept confidential.” Erie, 473 F.3d at 419; 1 McCormick on Evid., § 91 (“Wherever the matters communicated 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). Finally, Carolyn’s motivation for cooperating with the government and testifying against Ms. Maxwell is essential to the jury’s assessment of Carolyn’s credibility. 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 when Mr. Scarola made the statements to the government. 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 protection... .” See Fed. R. Evid. 502(a) (defining the limits of such a waiver as to undisclosed or inadvertently disclosed information); Jn re Steinhardt Partners, L.P., 9 F.3d 230, 236 (2d Cir. 1993) (when a party voluntarily discloses otherwise privileged information to the government, she “necessarily decides that the benefits of participation [in the government investigation] outweigh the benefits of confidentiality”); 1 McCormick On Evid., § 93 (“Waiver may be found, as Wigmore points out, not merely from words or conduct expressing an intention to relinquish a known right, but also from conduct such as partial disclosure which would make it unfair for the client to invoke the privilege thereafter.’’). DOJ-OGR- 00008368