Many of you are by now familiar with Greg Palast's blockbuster story about the "caging" list in Florida. That illegal voter-challenge scheme was revealed to Palast when some moron in the Florida GOP sent an email concerning the plan to "georgewbush.org" instead of "georgewbush.com."
Included in the emails now available from the Dead Letter Office at georgewbush.org is the one below.
Attorneys in the audience will know that legal advice which is inadvertently sent to a third party can waive the attorney-client privilege. Not only as to that one document, but in certain jurisdictions, may waive it as to that law firm about anything connected to the topic discussed in the released correspondence. Some jurisdictions require an intent to waive, others are strict. Still other jurisdictions conduct a balancing test. The biggest concern seems to be whether the attorney inadvertently disclosed it, or if the client let it loose.
More below:
In this case, the attorney did not send the inadvertent email. In fact, it appears that the attorney's advice has been forwarded by his client to still more people, and in the second forward, the Dead Letter Office received the email. From what I can tell, this person in the GOP might as well have taken his counsel's file and spread it out on a table for everyone to see. Certainly seems to me like a waiver.
Here's the email in question:
-----Original Message-----
From: Sean Cairncross - Legal [mailto:SCairncross@rnchq.org]
Sent: Saturday, September 18, 2004 3:15 PM
To: Jill HoltzmanVogel - Legal[mailto:JHoltzmanVogel@rnchq.org]; tjosefiak@georgewbush.org; cguith@georgewbush.com
Subject: FW: RE: Younger
Looks like they got the all-clear.
I'll keep everyone posted. Can someone forward to Chuck as well (don't have his email on bberry). Thanks.
-----Original Message-----
From: Patrick J. Rogers [mailto:patrogers@modrall.com]
Sent: Sat Sep 18 15:09:12 2004
To: Sean Cairncross - Legal [mailto:SCairncross@rnchq.org]
Subject: RE: Younger
Sean--call me, we are on board, and I'll give you the details.
Patrick J. Rogers
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
P.O. Box 2178
Albuquerque, NM 87103-2168
Tel: 505-848-1849
Fax: 505-848-1841
-----Original Message-----
From: Sean Cairncross - Legal [mailto:SCairncross@rnchq.org]
Sent: Saturday, September 18, 2004 12:57 PM
To: Patrick J. Rogers
Cc: jholtzmanvogel@tnchq.org
Subject: FW: Younger
Pat,
Here's research on abstention.
-----Original Message-----
From: Meyers, Ryan P. [mailto:RMeyers@gibsondunn.com]
Sent: Sat Sep 18 14:53:18 2004
To: Sean Cairncross - Legal
Cc: kwheelbarger@georgewbush.com
Subject: Younger
Sean,
The best case I've found so far is New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 359 (1989). In this case, the Court found that Younger abstention did not apply to a state court's review of city council's decision. The Court reasoned that Younger principles did not weigh as heavily in cases that do not implicate the state courts' ability to perform their judicial functions ("[I]t has never been suggested that Younger requires abstention in deference to a state judicial proceeding reviewing legislative or executive action. Such a broad abstention requirement would make a mockery of the rule that only exceptional circumstances justify a federal court's refusal to decide a case in deference to the States."). Depending on the posture of our case, this could be a slam-dunk argument: for instance, in the event that the state court was reviewing a decision by the Secretary of State to leave Nader off the ballot. I do not know if this is in fact the posture of the case, but from your brief description I suspect that it was not.
Nonetheless, New Orleans does have some favorable language that could be used to argue that abstention is the "exception, not the rule," and that the Younger should therefore not apply in this instance:
[T]here are some classes of cases in which the withholding of authorized equitable relief because of undue interference with state proceedings is "the normal thing to do," Younger v. Harris, 401 U.S., at 45. We have carefully defined, however, the areas in which such "abstention" is permissible, and it remains "'the exception, not the rule.'" Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 236 (1984), quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976). As recently as last Term we described the federal courts' obligation to adjudicate claims within their jurisdiction as "'virtually unflagging.'" Deakins v. Monaghan, 484 U.S. 193, 203 (1988) (citation omitted).
I just spoke with Katie Wheelbarger, and I explained to her that there are two ways to attack Younger. First, we could argue that the constitutional interests outweigh the state interests. I think this is our strongest argument and I am looking for any cases that have so held. I've already looked at Supreme Court and 10th Circuit cases on this point and haven't found anything helpful, but I am going to broaden my search and try again. Second, we could argue that the state court does not provide us an adequate opportunity to raise the constitutional challenge because of the time sensitivity involved. It will be difficult to prevail on this argument if we did not bother to raise these issues in the state court. There are several cases which suggest that the plaintiff's failure to raise a claim in the state court prevents it from later claiming that it has not had an adequate opportunity to challenge the constitutionality of the statute. This seems to me to make sense. Therefore, I will continue to focus on the first argument unless I hear otherwise from you. Even if we do not find a case on point, we can still make the argument on the basis of Younger and Pennzoil themselves that abstention should not be applied because the constitutional interest at stake vastly outweighs any state interest in this case.
If you have any questions or wish me to pursue a new direction, you can reach me at 202-544-6338. If I do not answer at that number please try 202-641-7532.
-------------------------------
Ryan P. Meyers
202 887 3635, Direct
202 530 9565, Direct Fax
rmeyers@gibsondunn.com
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So what about it counsel, has the GOP waived its attorney-client privilege as to Gibson, Dunn & Crutcher? Can the Kerry Administration Justice Department, when it does investigate voter suppression in Florida, ask for the files of Gibson, Dunn?