United States v. Nicholas Defonte v. Francia Collazos, Intervenor-Movant-Appellant

Citations: 441 F.3d 92; 69 Fed. R. Serv. 761; 2006 U.S. App. LEXIS 6145; 2006 WL 623603Docket: 06-1046-

Court: Court of Appeals for the Second Circuit; March 14, 2006; Federal Appellate Court

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Francia Collazos, a former inmate at Metropolitan Correctional Center, recorded incidents involving Nicholas DeFonte, a corrections officer, in a journal during her incarceration. This journal became relevant when the government intended to call Collazos as a witness in DeFonte's trial for alleged misconduct. The journal was inadvertently transferred to the Federal Correctional Institution in Danbury, Connecticut, and subsequently delivered to the U.S. Attorney's Office. DeFonte's attorney requested the journal's disclosure, arguing it constituted a witness statement under 18 U.S.C. § 3500 and was relevant per Giglio v. United States.

Collazos sought a protective order, claiming attorney-client privilege over the journal's contents. The District Court for the Southern District of New York denied her motion, asserting that she had no reasonable expectation of privacy regarding her cell contents. However, the Court of Appeals found error in this conclusion, emphasizing that an inmate does retain attorney-client privilege despite having a diminished expectation of privacy in their cell. The appellate court vacated the district court's decision and remanded the case for a hearing, clarifying that the inquiries into privacy expectations and privilege are independent. The ruling highlights the maintained protection of attorney-client communications for incarcerated individuals, regardless of their living conditions.

The district court may reconsider whether Collazos' handling of certain notes undermined her intent for confidentiality, particularly in light of the precedent set in In re Horowitz, which found privilege waived when documents were given to someone other than the attorney. The notes in question fall into two categories: those memorializing private conversations with her attorney, which are protected by attorney-client privilege, and daily life entries, including interactions with DeFonte and prosecutors, which raise more complex privilege issues. Collazos asserts that the latter entries were intended for future discussions with her attorneys. 

The attorney-client privilege protects confidential disclosures made for legal assistance, fostering open communication between clients and attorneys, as established in Fisher v. United States and Upjohn Co. v. United States. However, the privilege only applies where necessary to serve its purpose. Collazos maintains that she did not consent to the removal of her journal and did not share its contents with third parties; thus, unless it is determined she waived the privilege, her attorney conversations are not discoverable by DeFonte.

The determination of privilege for the second group of entries is less straightforward. Collazos cites two district court cases where notes taken for attorney discussions were found to be privileged because the clients communicated the contents to their attorneys. Both cases emphasize that communication between client and attorney is essential for privilege, aligning with the rule's intent. A broad privilege for all writings aimed at legal representation could hinder clients from effectively preparing for discussions with their attorneys.

The journal in question was not delivered to Collazos's attorney, a fact deemed critical by the district court in ruling that the journal fell outside the attorney-client privilege. Collazos contends that the journal's entries served as an outline for discussions with his attorney, which should qualify for privilege protection. The court found that the district court erred in its understanding of the privilege's scope and Collazos's privacy expectations, warranting a remand for further proceedings. The remand will enable the district court to evaluate which entries in the journal are protected under attorney-client privilege. Additionally, the district court's decision did not address any significant Sixth Amendment concerns, which were not considered in this determination. The previous order of the district court is vacated, and the matter is remanded for further investigation. The journal remains with an unassociated Assistant United States Attorney, ensuring a barrier against potential prosecutorial access.