
USA v David Correia: Devices sent from client to attorney not privileged [pdf] - DyslexicAtheist
https://www.courtlistener.com/recap/gov.uscourts.nysd.524344/gov.uscourts.nysd.524344.114.0.pdf
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pdabbadabba
This title is literally true but misleading. The documents could be seized not
because they were sent from overseas, but because the materials inside were
not subject to attorney-client privilege in the first place.

> It is important to note that if Correia had simply handed his notebooks and
> electronic devices to his counsel personally, the documents would not be
> privileged.

At least in the U.S., attorney-client privilege does not apply to just any old
thing you send to your lawyer. It's applicability depends on the content of
the communications.

> Because nothing in the package revealed any privileged communications
> between Correia and his counsel, the package cannot become privileged
> “merely because it was sent . . . between an attorney and client.”

~~~
withinboredom
By this logic, the police can wiretap an attorney's office because they don't
always talk about "work." Then it's just a matter of some watercooler
conversation in the station to get what you really want to know.

Yeah, I know that it's illegal, but corruption doesn't care.

~~~
gamblor956
That doesn't follow. The de minimus non privileged communication would not
support a warrant for a wiretap and would poison every case handled by that
firm.

(Parallel construction would generally not be permitted, as that's usually
only allowed for technical or inadvertent procedural defects in gathering
evidence, not intentional and unlawful violations.)

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taejo
> It is important to note that if Correia had simply handed his notebooks and
> electronic devices to his counsel personally, the documents would not be
> privileged. “[P]re-existing documents . . . not prepared by the [client] for
> the purpose of communicating with [her] lawyers in confidence . . .
> acquire[] no special protection from the simple fact of being turned over to
> an attorney.”

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flerchin
With a warrant, that seems legit. You can't just say the magic words and make
evidence disappear.

~~~
WrtCdEvrydy
Honestly, I would have rather just encrypted everything there, reset the phone
and sent it.

I wonder if this package was just to muddy the waters.

~~~
Jeremy1026
Without knowing anything of the case aside from reading this document. This
feels like the defendant is between a rock and a hard place and they were
hoping to get the information intercepted in an attempt to have the evidence
thrown out as their defense strategy.

~~~
WrtCdEvrydy
Right, I'm not a lawyer but even if you have a copy of those items that drive
and phone... if it was found from a different source, would it still be
inadmissable?

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DarkWiiPlayer
Uh... imagine you stab someone, and they figure out it was you but haven't
found the knife yet. As this would be the nail in your coffin, you put the
knife in an envelope and mail it to your attourney. Do you think that would
work? no? then why should it in this case?

~~~
GavinMcG
I'll argue that that _should_ work, on some level. Communication with one's
attorney is privileged for a good reason, and under your theory the police can
interfere with that whenever they imagine the package you've mailed isn't a
communication.

~~~
fireattack
I failed to see how you conclude mailing a bloody knife _should work_ from
your second sentence (which I agree).

Communication should/is privileged, but obviously not any package _should_ be
considered as "communication", and even at the worst scenario, having the
police to interfere the package whenever they want still doesn't stop you to
practice your privilege of communication since there are lots of other forms
of communication.

~~~
caconym_
So the police decide what is and isn't legitimate communication wrt.
qualifying as attorney-client privileged, and that's ok because "there are
lots of other forms of communication"?

I don't think this is a cut and dried case where it's obvious the authorities
were in the wrong, but the above doesn't really pass muster with me. Where is
the line deciding which "communications" are and aren't eligible for attorney-
client privilege? For instance, if the package contained printed documents,
would that be protected?

~~~
DarkWiiPlayer
> So the police decide what is and isn't legitimate communication

Who said that? In the end, it is still the judge who decides to dismiss (or
not) a piece of evidence if it was aquired illegally.

The police must be able to investigate and creating a complete blind-spot to
their investigation would make their work impossible.

> I don't think this is a cut and dried case where it's obvious the
> authorities were in the wrong

I think it's a cut and dried case where it's obvious that the authorities were
in the right.

Why would handing evidence to your attourney make it legally disappear? If
anything, it turns the attourney into an accomplice.

~~~
caconym_
> Who said that?

The person I replied to said it.

> The police must be able to investigate and creating a complete blind-spot to
> their investigation would make their work impossible.

While true to a point, this sort of argument is deployed as FUD to justify all
sorts of overreaches by authorities and it has no place in a serious
discussion of this topic unless it comes with an immediate acknowledgement
that protection of civil liberties should be an equal or even overriding
concern.

Anyway, I think you're projecting. Look at what I wrote, then look at the
context.

~~~
gamblor956
Context not required. A knife isn't a form of communication so mailing it to
your lawyer doesn't make it privileged.

Also, his comment is not FUD. It reflects the original state of things. The
attorney client privilege is an exception to the norm, that created the civil
right you claim you wish to discuss.

~~~
caconym_
> the civil right you claim you wish to discuss.

Since you've accused me of bad faith, I'll invite you now to go fuck yourself.

You're a fool if you think context doesn't matter. I asked the questions I did
to invite that person to consider and clarify his position, which I didn't
entirely disagree with. Context is how a conversation accumulates non-trivial
meaning, and a lack of respect for it generates the sort of valueless crap I'm
replying to right now.

This conversation, by the way—the one between you and me—is now over.

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rabanne
Hmmn, I always thought "communications for the purpose of securing legal
advice" was recognized more broadly.

If I send a copy of a document which can incriminate myself and was created
before hiring a lawyer, to a lawyer for legal advice, can the government seize
it? If so, if I outline a document after hiring a lawyer and then send it for
legal advice, can the government seize it?

~~~
mc32
I think if you start contacting lawyers something like “hey I did a bank
heist, I need your advice” before establishing client-lawyer privilege then
that communication isn’t automatically privileged by “confidence”.

~~~
gamblor956
No you're fine in that situation. That communication is automatically
privileged, even if the attorney doesn't take your case, because it was part
of a communication soliciting legal advice.

~~~
mc32
It’s not clear cut if you haven’t discussed terms, representation, etc. the
attorney might say, “I’m booked” before asking additional information.

~~~
gamblor956
That's irrelevant from the point of view of the privilege applying. What
matters is that the communication was for the purposes of soliciting legal
advice from an attorney, otherwise the DA could just subpoena an attorney that
the defendant talked to but was unable to afford or who was too busy to handle
the particulars of the defendant's case.

~~~
mc32
That's not how I read it:

"The establishment of the attorney-client relationship involves two elements:
a person seeks advice or assistance from an attorney; and the attorney appears
to give, agrees to give or gives the advice or assistance[1]"

and

"That “special relationship” between an attorney and his/her client is
generally established by mutual assent/consent. This is most often confirmed
by a written “retainer”[2]"

Other states have similar determinants.

[1][https://www.lsba.org/PracticeAidGuide/PAG1.aspx](https://www.lsba.org/PracticeAidGuide/PAG1.aspx)

[2][https://attorneys.uslegal.com/malpractice/establishing-
the-a...](https://attorneys.uslegal.com/malpractice/establishing-the-attorney-
client-relationship/)

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ceejayoz
Not sure why this'd be a surprise to anyone. Customs can do the same when you
cross borders.

[https://www.propublica.org/article/can-customs-border-
protec...](https://www.propublica.org/article/can-customs-border-protection-
search-phone-legal-rights)

> According to federal statutes, regulations and court decisions, CBP officers
> have the authority to inspect, without a warrant, any person trying to gain
> entry into the country and their belongings. CBP can also question
> individuals about their citizenship or immigration status and ask for
> documents that prove admissibility into the country.

~~~
gowld
Some people think the law is something to hack like a video game or Etherium,
not a statement of principles and rules that are applied with human judgment.

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merricksb
More details of the arrest/accusation here:

[https://www.nytimes.com/2019/10/16/nyregion/david-correia-
uk...](https://www.nytimes.com/2019/10/16/nyregion/david-correia-ukraine.html)

