Commercial Litigation and Arbitration

Disclosure of Work Product to Adversary during Settlement Talks Waives Protection Despite Common Goal of Reaching Quick Settlement — No Common Law Privilege for Plea Negotiations — Presumption against Creating New Privileges

Doe v. United States, 749 F.3d 999 (11th Cir. 2014):

2. The Intervenors Waived Any Work-Product Privilege.

The intervenors next contend that the correspondence falls under the work-product privilege, but the finding of the district court that the intervenors waived any privilege when they voluntarily sent the correspondence to the United States during the plea negotiations is not clearly erroneous. Disclosure of work-product materials to an adversary waives the work-product privilege. See, e.g., In re Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F.2d 844, 846 (8th Cir. 1988); In re Doe, 662 F.2d 1073, 1081-82 (4th Cir. 1981). Even if it shared the common goal of reaching a quick settlement, the United States was undoubtedly adverse to Epstein during its investigation of him for federal offenses, and the intervenors' disclosure of their work product waived any claim of privilege.

As a last-ditch effort, the intervenors contend that "[i]f more is needed in addition to the plain language of Rule 410 to preclude disclosure of the correspondence to plaintiffs, it can be found in the conjunction of Rule 410, the work-product privilege, and the Sixth Amendment right to the effective assistance of counsel in the plea bargaining process," but this novel argument fails too. As explained above, Rule 410 does not create a privilege and the intervenors waived any work-product privilege. The intervenors concede too that the right to counsel under the Sixth Amendment had not yet attached when the correspondence was exchanged. Lumley v. City of Dade City, Fla., 327 F.3d 1186, 1195 (11th Cir. 2003) ("[T]he Sixth Amendment right to counsel ordinarily does not arise until there is a formal  [*1009]  commitment by the government to prosecute," such as a "formal charge, preliminary hearing, indictment, information, or arraignment."). The "conjunctive" power of three false claims of privilege does not rescue the correspondence from disclosure.

3. We Decline To Recognize a Common-Law Privilege for Plea Negotiations.

The intervenors also invite us to recognize a common law privilege for plea negotiations, Fed. R. Evid. 501, but we decline to do so. The intervenors have not established a "compelling justification" to prevent the discovery of plea negotiations in criminal proceedings, In re Int'l Horizons, 689 F.2d at 1004. Although Congress empowered the federal courts through Rule 501 to "continue the evolutionary development of testimonial privileges," Trammel v. United States, 445 U.S. 40, 47, 100 S. Ct. 906, 910, 63 L. Ed. 2d 186 (1980), we disfavor newly minted privileges, which "contravene the fundamental principle that the public has a right to every man's evidence," Adkins v. Christie, 488 F.3d 1324, 1328 (11th Cir. 2007) (quoting Univ. of Pa. v. EEOC, 493 U.S. 182, 189, 110 S. Ct. 577, 582, 107 L. Ed. 2d 571 (1990)). "Accordingly, there is a presumption against privileges which may only be overcome when it would achieve a 'public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.'" Id. (quoting Trammel, 445 U.S. at 50, 100 S. Ct. at 912).

The Supreme Court has identified several considerations relevant to whether a court should recognize an evidentiary privilege--the needs of the public, whether the privilege is rooted in the imperative for confidence and trust, the evidentiary benefit of the denial of the privilege, and any consensus among the states, Jaffee v. Redmond, 518 U.S. 1, 10-15, 135 L. Ed. 2d 337, 116 S. Ct. 1923, 1928-31 (1996)--but none of these considerations weighs in favor of recognizing a new privilege to prevent discovery of the plea negotiations. Although plea negotiations are vital to the functioning of the criminal justice system, a prosecutor and target of a criminal investigation do not enjoy a relationship of confidence and trust when they negotiate. Their adversarial relationship, unlike the confidential relationship of a doctor and patient or attorney and client, warrants no privilege beyond the terms of Rule 410. See Jaffee, 518 U.S. at 10, 116 S. Ct. at 1928. But the victims would enjoy an evidentiary benefit from the disclosure of plea negotiations to prove whether the United States violated their rights under the Act. As for any consensus among the states, the majority of the state statutes the intervenors cite adopted Rule 410 verbatim. Compare, e.g., Fla. Stat. § 90.410 ("Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding."), with Fed. R. Evid. 410.

Even if we were to accept the intervenors' argument that plea negotiations are de facto confidential in criminal practice, that custom alone would not protect them from discovery because Rule 410 militates against the establishment of a new privilege. The Supreme Court has cautioned federal courts to be "especially reluctant to recognize a privilege in an area where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself." Univ. of Pa., 493 U.S. at 189. Congress weighed the evidentiary concerns related to criminal plea negotiations when it enacted Rule 410, which enables a defendant to negotiate without fear that the prosecutor will use his statements against him. Rule 410 contemplates that  [*1010]  plea negotiations should ordinarily be inadmissible against a defendant, but not always. The rule does not bar the admission of plea negotiations, for example, when the defendant pleads guilty, in a proceeding for perjury, or when the defendant introduces the statements so long as they are not self-serving hearsay. If we were to recognize a privilege for plea negotiations, we would upset the balance that Congress struck when it adopted Rule 410. See In re MSTG, Inc., 675 F.3d 1337, 1344 (Fed. Cir. 2012) (rejecting a privilege for settlement negotiations because Congress, by enacting Rule 408, "did not take the additional step of protecting settlement negotiations from discovery."). We will  not go further than Congress stated was necessary to promote the public good in criminal plea negotiations.

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