December 30, 1985
Defendant Fisher also seeks to suppress on the grounds of privilege the December 30, 1985 phone conversation of Stephen Traitz, Jr. and defendant Fisher, in which only Mr. Traitz has been recorded. This conversation involves a discussion of the kickback scheme and of the contingency fee arrangement between the law firm and the union. In his affidavit, Mr. Winning states that in this conversation Stephen Traitz, Jr. is "not expressly seeking legal advice within the strict meaning of the term." Winning July 17, 1987 Affidavit at 7. I agree, and this conversation is therefore not privileged.
January 27, 1986
The final conversation which defendant Fisher alleges to be privileged occurred on January 27, 1986. Both defendant Fisher and Stephen Traitz, Jr. were present. During the meeting (1) defendant Fisher calls Bernard Katz, and defendant Fisher and Stephen Traitz, Jr. discuss with Mr. Katz (2) the Medina case; and (3) the union in general. As defendant Fisher concedes that point (1) is not privileged, it will not be suppressed. Winning July 17, 1987 Affidavit at 7. As defendant makes no mention of point (3) as privileged, I thereby assume that he is acknowledging that it is not privileged. Winning July 17, 1987 Affidavit at 7-8. I agree, as it does not involve any attempt to obtain legal services, representation in a legal proceeding, or a legal opinion. Point (2) will be redacted by the government.
At this time the government intends to introduce into evidence only those tapes that have already been played at the trial of the thirteen roofers. These are the November 21, 1985, the December 3, 1985 and the December 17, 1985 recordings. All portions of these tapes which the government intends to play at the trial of these defendants were introduced without objection at the previous trial. I have heard them and they are incorporated into this record.
It is well established that the attorney-client privilege belongs to the client. 1 G. Weissenberger, Federal Evidence § 501.5 (1987). The attorney may, however, assert the privilege on his client's behalf, Schwimmer v. United States, 232 F.2d 855, 863 (8th Cir. 1956), cert. denied, 352 U.S. 833, 1 L. Ed. 2d 52, 77 S. Ct. 48 (1956), but only the client may waive it. 8 Wigmore § 2327 at 635. A client may waive the privilege either expressly, or implicitly by conduct that extinguishes one of the necessary elements of the privilege. Hollins v. Powell, 773 F.2d 191, 196 (8th Cir. 1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986); In re Grand Jury Proceedings, 73 F.R.D. 647, 652 (M.D. Fla. 1977). Any voluntary disclosure by the holder of the privilege is inconsistent with the confidential nature of the relationship, and thereby waives the privilege. In re Subpoenas Duces Tecum, 238 U.S. App. D.C. 221, 738 F.2d 1367, 1369 (D.C.Cir. 1984). Indeed, in determining the confidentiality of any communication it is the intent of the client that controls. Waiver of the attorney-client privilege will be implied when a client has testified concerning portions of an attorney-client communication. Hollins, 773 F.2d at 196; Sedco International, S.A. v. Cory, 683 F.2d 1201, 1206 (8th Cir. 1982), cert. denied, 459 U.S. 1017, 74 L. Ed. 2d 512, 103 S. Ct. 379 (1982). In Hollins, supra, a failure to object to questioning that may have implicated the privilege resulted in a waiver of the attorney-client privilege. Hollins, 773 F.2d at 197. As none of the potential "clients" objected at their trial to the admission of these tape recordings, the tape recordings have thereby lost their confidential character. The November 21, 1985, December 3, 1985, and December 17, 1985 tapes, therefore, will not be suppressed on the grounds of privilege.
Even if they are deemed to be privileged attorney-client communications, their character as privileged communications was voluntarily waived, and they are therefore no longer privileged.
In addition, defendants argue that the government agents who surveilled these defendants heard these conversations, knew them to be privileged attorney-client conversations, yet failed to interrupt their electronic surveillance so as to minimize the interception of any further privileged communication. The defendants have failed to meet their burden of establishing the privileged nature of the communications at issue here, and have no valid claim for suppression for failure of the government to minimize under 18 U.S.C. § 2518(5). See United States v. Traitz, Jr., 85-2012, slip op. (E.D. Pa. June 25, 1987) (Giles, J.) (filed under seal). Likewise, I agree with Judge Giles that the government's failure to identify defendants Fisher and Bloom as interceptees in the November 22, 1985 Interception Order and Application does not require suppression here. See United States v. Donovan, 429 U.S. 413, 439, 50 L. Ed. 2d 652, 97 S. Ct. 658 (1977); Traitz, Jr., slip op. at 86-88. In addition, I find that there has been no failure by the government to minimize any non-pertinent matters which are not covered by the attorney-client privilege. The recording by the agents of non-criminal conversations on November 21, 1985 was objectively reasonable under the circumstances, and I cannot see how the peripheral matters which were taped prejudice these defendants. See Scott v. United States, 436 U.S. 128, 56 L. Ed. 2d 168, 98 S. Ct. 1717 (1978); United States v. Cortese, 568 F. Supp. 119, 124 (M.D.Pa. 1983); United States v. Geller, 560 F. Supp. 1309, 1325 (E.D.Pa. 1983). As I stated at the hearing, I credit the testimony of Assistant United States Attorney Richard Scheff, and I find that the fact that the FBI agents assigned to the electronic surveillance in this case initialled the last page of the affidavit in support of electronic surveillance of Agent Quinn John Tamm, Jr. signifies that they read the entire package including the order of Judge Giles authorizing the surveillance and the application of the United States. Regardless, the agents were given minimization instructions which contained sufficient information to apprise the agents of the proper procedures to employ while conducting the surveillance, so as to avoid the interception of non-pertinent matters, and a conference was held to explain these instructions to the agents. Government's Answer to Defendants' Motion for an Evidentiary Hearing, Exhibits A, B. As there is no evidence of a failure on the part of the agents to appropriately minimize, defendants' most recent Motion for an Evidentiary Hearing Or, In the Alternative, An Order Suppressing Tape-Recorded Conversations is DENIED.