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Defense lawyers for Adelphia Communications Corp. founder John J. Rigas and his sons Timothy and Michael are not entitled to retain privileged documents inadvertently turned over by the federal government, a federal judge has ruled. Southern District of New York Judge Leonard Sand declined to punish the government for the mistaken attachment of a government paralegal’s file to computer hard drives given the defense by the team prosecuting the Rigas family in the alleged billion dollar “corporate looting” of Adelphia. The government, in United States v. Rigas, 02 Cr. 1236, had issued grand jury subpoenas to the company in 2002 during its investigation of the Rigas family and other top executives. Adelphia produced copies of 26 computer hard drives in response to the subpoenas. The copies were made by company auditor PricewaterhouseCoopers. In October 2002, the government said it was providing this material to the defense to make its own copies. Two Assistant U.S. Attorneys instructed government information technology personnel to install the hard drives in a secure computer, telling them the files were “evidence” and should be installed so that the drives could not be altered. A paralegal with the Southern District U.S. Attorney’s Office followed up the installation by reviewing the files to be certain they could be accessed. But when the defendant’s computer consultant reviewed the hard drives, he discovered a chronology prepared by the paralegal and other documents were now attached to one hard drive that concerned a former Adelphia employee. Peter E. Fleming Jr. of Curtis, Mallet-Prevost, Colt & Mosle, defense counsel for John J. Rigas, called one of the prosecutors on the case and informed him of the additional material on the hard drive, which was supposed to be an exact copy of a drive that was in pristine condition. Fleming assured Assistant U.S. Attorney Christopher Clark that no one at his firm had reviewed the chronology or the other documents. A subsequent investigation by an information technology specialist with the U.S. Attorney’s Office revealed that the paralegal’s entire computer network account had been attached to the hard drive, including grand jury material, other confidential information and work product in connection with the Adelphia matter. Fleming refused to return the material to the government and instead submitted it to the court for resolution of the government’s claim of work-product privilege and the defense’s claim that the privilege had been waived. THREE VIEWS Issuing a 16-page ruling after a hearing on the matter, Sand said that “courts are divided among three schools of thought when it comes to waiver through inadvertent disclosure.” “The strict approach,” he said, “holds that the voluntary production of any document — whether intentional or accidental — results in waiver.” At the other end of the spectrum, he said, was the “lenient” view that inadvertent production of a privileged document never constitutes a waiver. The “middle of the road” approach used in the Southern District, Sand said, balances four factors: the reasonableness of the precautions taken by the producing party, the volume of discovery compared to the extent of the specific disclosure, the length of time it takes to rectify the disclosure, and “the overarching issue of fairness.” Sand said he was satisfied the government took “sufficient steps to ensure the confidentiality” of the material and “reasonable precautions to protect the integrity of the Adelphia hard drives themselves.” The government’s legal team relied “in good faith” on the assurances of technology personnel that the hard drives could not be altered by viewing them, he said, and it took additional steps to prevent the disclosure of privileged materials when it arranged for the defense to copy the drives. And the specific disclosure was but a “small fraction” of the materials produced and the government moved quickly to seek the return of the files and ask the defense not to review them, the judge said. As for fairness, the judge said, the fact that defense counsel have not reviewed the files means “the purpose of the work-product privilege has not been undermined and no one defendant will be prejudiced vis-�-vis any other defendant should the privileged documents be returned to the Government.”

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