Judge Paul Crotty
Nunez retained Smith—who represented him in civil matters—to defend him against drug distribution charges. Pursuant to a search warrant the government seized Nunez's emails and online chat records with Smith. It was only after new counsel's appointment under the Criminal Justice Act that Nunez claimed the emails protected by the attorney-client privilege, which he was not waiving. District court precluded the subject emails' use by the government. Applying the four-factor test set out in Lois Sportswear USA Inc. v. Levi Strauss & Co. it found Nunez did not waive attorney-client privilege. Further, emails dated Dec. 1, 2011, and Jan. 12, 2012, which Nunez forwarded to Smith—by which former employer LCM Herbal, a seller of synthetic marijuana, terminated Nunez's employment because it decided to discontinue sales activity due to "legal restraints"— did not fall within the crime-fraud exception. The Dec. 1 email made clear that Nunez sought legal advise from Smith related to what he perceived as his improper termination. In In re Richard Roe, Second Circuit made clear that the crime-fraud exception applies only when the client communication is in furtherance of a crime, not when it provides evidence of a crime.
