USA v David Correia: Devices sent from client to attorney not privileged [pdf]

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.

I'm not a lawyer, but the reasoning is problematic to me because it draws equivalence between discovery via the attorney after receipt of the documents and interception of the documents before they reach the attorney, arguing that since the former is standard procedure and the latter is equivalent then the latter is acceptable. However, we may reasonably anticipate that sealed messages and packages sent from clients to their attorneys will often contain legitimate privileged communications, so what we have here is basically the government saying don't worry, we're going to read any and all privileged communications you do send, but trust us—we'll forget all of it.

The court's reasoning seems to handwave this concern with allusions to "filter teams". Given that they're essentially acting on behalf of the prosecution, I don't find that particularly satisfying, especially since the use of "parallel construction" by local and federal law enforcement, often acting together, is not unheard-of.

I'm sure there's precedent for all of it. Often when we're talking about relatively unaccountable federal agencies, this kind of precedent seems to arise from the government asking for forgiveness rather than permission, so to speak—so this is not an argument that what is isn't what is, but rather that, given the spirit of attorney-client privilege doctrine, I find this reasoning deeply unsatisfying.

I agree that relying on defendants and their attorneys to be truthful in discovery is, perhaps, equally problematic from a law enforcement perspective. That's where we should start throwing other things onto the balance, like concern for erosion of civil liberties.

If they X-rayed the package and saw it was just a knife or gun or whatever in there, I could see an argument for seizing it as evidence. But if it's just information storage devices—say, a printed document, impossible to distinguish as privileged or not without reading it, is the government justified in seizing it and deciding for themselves? Why then does the government not enjoy the right to read every single communication between client and attorney, and to bug the rooms where they meet, given that the government must be allowed to efficiently slurp up all non-privileged information that passes between them and can be trusted to ignore what is privileged?

"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

[2]https://attorneys.uslegal.com/malpractice/establishing-the-a...