By Albany Defense Attorney With Big Ears
The new filing by the prosecution describes some of the problems that have developed with respect to the issue of attorney/client privilege as regards all the material that was seized from Nancy Salzman’s former home (Note: The only defendants who are asserting this privilege are Keith, Clare, and Nancy). In this regard, those issues include – but may not be limited to – the following:
– In addition to dealing with the attorneys representing Keith, Clare, and Nancy, the prosecution is also now dealing with Michael J. Sullivan, who is representing the non-party NXIVM entity in this matter (It would not surprise me if the prosecution names NXIVM – and maybe some of the other known related companies – as additional defendants in a superseding indictment).
– There is disagreement between some of the individual defendants and NXIVM as to what material is privileged – and/or who the privilege applies to (Example: Clare claims that in her capacity as a representative of NXIVM, she has privilege regarding discussions she had with an attorney named Jonathan Ware – but the attorney representing NXIVM claims that if any such privilege exists, it is in Clare’s capacity as an individual and not as a representative of NXIVM).
– There is also disagreement as to whether there are/were any applicable “Joint Defense Agreements” between any of the individual defendants and NXIVM. Clare and Keith claim there are/were such agreements but the lawyer representing NXIVM says no such agreements ever existed.
– Finally, there is a disagreement as to how the determination should be made as to whether attorney/client privilege exists with respect to a particular document. In this regard, the prosecution wants to first develop an agreed-upon list of which defendants have such a privilege with which particular attorney(s) – and then have the Fire Wall Team make document-specific privilege determinations in accordance with that agreed upon list. Keith, Clare, and Nancy, however, would prefer, that the Fire Wall Team start looking at individual documents before any determination has been made as to which defendants have attorney/client privilege with which attorneys.
I would expect this battle to require several more filings by all the affected – and at least one more oral argument before Judge Garaufis. That, of course, will be one more reason why the trial will never start on March 18th.