Opinion
No. IN-05-01-0437-0438.
Submitted: February 14, 2007.
Decided: March 6, 2007.
Upon Consideration of the Motions of Eugene J. Maurer, Jr., Esquire and Mary E. Burnell, Esquire, to Quash Attorney General's Subpoenas.
Granted In Part, Denied In Part.
Upon Consideration of the State's Motion to Compel Compliance With Attorney General's Subpoena.
Granted In Part, Denied In Part.
William L. George, Jr., Esq., and Victoria R. Witherell, Esq., Department of Justice, Wilmington, Delaware. Attorneys for State.
Eugene J. Maurer, Jr., Esq., and Joseph Hurley, Esq., Wilmington, Delaware. Attorney for Defendant.
ORDER
Upon consideration of the motions filed by Eugene J. Maurer, Jr., Esquire, and Mary Burnell, Esquire, to Quash Attorney General's Subpoenas, the State's Motion to Compel Compliance with said subpoenas, and the record of the case, it appears that:
1. Theses motions involve issues pertaining to an alleged Russian language email purported to have been sent from Robert Bondar to the defendant, Irina Malinovskaya, on August 18, 2004. Since defense counsel gave the State a copy of the English translation of the alleged e-mail in question at the last trial, I find that attorney-client privilege pertaining to the Russian original, if any, that is, the actual document itself, is waived. Therefore, the motions to quash Attorney General's subpoenas on the grounds of attorney-client privilege as to production of the alleged Russian original of the e-mail is denied. The State's motion to compel compliance with an Attorney General's subpoena to that extent is granted . Since the parties have not addressed defense counsel's current inability to find the Russian original, I do not address it.
2. To the extent that the Attorney General's subpoenas seek to take testimony from Mr.Maurer and Ms. Burnell, the motions to quash are granted and the motion to compel is denied .
3. In the case of In the Matter of Sutton, counsel introduced into evidence, during direct examination of his client, a document subsequently shown to be a fabrication, allegedly known by the client at the time (but not counsel) to be a fabrication. The court in that case was unwilling to infer that the decision to introduce the document necessarily created an inference that confidential communications must have occurred which facilitated the admission of the document. Therefore, it appears that under Sutton, some acts done by counsel in the course of representing the client, such as offering a document later shown to be false into evidence, which helps a client commit a fraud, do not, or do not necessarily, bring confidential communications within the crime/fraud exception. Rather, it appears that in order for the crime/fraud exception to apply, advice given by counsel or confidential communications between counsel and the client should in some manner or sense contribute to or further the alleged fraud. In addition to Sutton, see Princeton Ins. Co. v. Vergano.
883 A.2d 44 (Del.Ch. 2005).
4. I note that there is no requirement that counsel be aware of alleged fraud in order for the crime/fraud exception to apply.
5. In this case, the record does contain something more than what was present in Sutton. Here, it is known that there were many Russian language e-mails. It is also known, or at least alleged by the State, that the defendant identified those that she thought should be translated into English, and that defense counsel then gave them to the interpreter to translate. The State's theory is that the defendant "slipped" a false Russian language e-mail in with other, legitimate, e-mails. The State contends that the process of selecting Russian language e-mails for English translation must have involved discussions about the parameters of the search for relevant versus non-relevant e-mails and discussions to explain their importance and need to be translated.
6. However, on the record in this case, I am not persuaded that I can or should draw inferences or conclusions about the nature of discussions, if any, which took place between counsel and the defendant about what e-mails should or should not be translated.
7. I am not persuaded that advice from counsel or confidential communications between counsel and the defendant furthered the alleged fraud.
8. Accordingly, the motions are granted in part and denied in part as aforesaid.
IT IS SO ORDERED.