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A gun manufacturer’s e-mail accidentally sent to Connecticut Attorney General Richard Blumenthal cannot be used against it in litigation, the state Supreme Court ruled July 29, finding the communication didn’t fall within the crime-fraud exception to the attorney-client privilege. Though the e-mail remains under seal, its contents were potent enough for Blumenthal to bring an appeal after a trial judge turned down his bid to use it as ammunition in a possible antitrust action over an alleged boycott of Smith & Wesson. The firearms industry and gun buffs let out a collective roar of anger when the Springfield, Mass.-based gun maker negotiated its way out of a morass of state and federal safety suits in 2000, by promising trigger locks, secret serial numbers and other concessions. The National Rifle Association accused Smith & Wesson of running up the white flag of surrender. More ominously, gun industry suppliers hinted at an industrywide boycott of the company. Attorney General Richard Blumenthal promptly checked into it. He suspected an illegal economic boycott, and issued interrogatories and an investigatory subpoena that sought documents “relevant to any alleged violation of the Connecticut Antitrust Act.” Connecticut counsel for one gun maker, Yonkers, N.Y.-based Kimber Manufacturing, accidentally released an “industry action” e-mail as document 474 in a batch of 577 supplied. To Blumenthal, it appeared to be a smoking gun. Kimber lawyer Peter L. Costas, of Hartford, Conn.-based Pepe & Hazard, contends his secretary forwarded the document by mistake, despite his Post-it notes explaining which documents were confidential. He demanded the e-mail’s return “in accordance with collegial practice and the controlling case law.” He also argued the e-mail was privileged lawyer-client communication, utterly inadmissible to support the antitrust action threatened by Blumenthal. The AG, playing hardball, responded that the release waived the privilege, and that it was a communication that advanced a crime, thereby exempt from attorney-client privilege. At the trial level in 2001, Hartford Superior Court Judge Vanessa Bryant concluded that the e-mail was patently an “update of [firearms] litigation developments and does not advocate any criminal or illegal activity.” In a unanimous decision written by Justice Joette Katz, the Connecticut Supreme Court upheld Bryant’s decision. “[T]he e-mail reveals nothing that suggests an intent to break the law,” Katz maintained. ” . . . Furthermore, to the extent that the e-mail refers to any action, it is the actions of others, and not of the respondents; it neither advocates that Kimber take any action of its own, nor that others take a particular action.” NO INSIGHT ALLOWED The focus of the controversy is the point at which a lawyer’s duty to society outweighs the duty to maintain client confidences, a topic that has grown increasingly controversial in the wake of accounting scandals by Enron and others, as well as remedies proposed by Congress and the Securities and Exchange Commission that would compel lawyers to blow the whistle on their clients. At Kimber’s insistence, the e-mail itself was placed in a sealed file. But through what the AG’s office says was a court mistake, the entire file wound up being classified as a “Level 2″ sealed file. In such cases, only the party names and docket number are available to the public. Blumenthal’s office last week even declined to supply copies of its written arguments in its Connecticut Supreme Court appeal, as did Costas, due to the secrecy order. On July 31, Assistant AG Susan Quinn Cobb wrote state Supreme Court Chief Clerk Michelle Angers requesting the unsealing of the appellate file, with redacted documents substituted. The Kimber case already has attained notoriety in the recent flap over secret court files. In a front-page article, The Hartford Courant cited it as a prime example of cases sealed by judges despite the broad public policy and consumer protection questions they raise. Ironically, neither Kimber nor the attorney general’s office has asked to have all documents sealed in the case. According to Costas, both the AG and Kimber signed a request stipulating that only the e-mail at the heart of this case, and two other e-mails privileged as business secrets, should be sealed. But Judge Bryant sealed a total of 10documents that reference confidential material from Blumenthal’s investigative subpoena, which by law is not to be made public. In a March 27 unsealing order, the file was reclassified Level 3, with sealing on a document-by-document basis. On June 6, Bryant entered a series of 10 sealing orders covering the one-third of the file that remains off-limits to the public.

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