UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
November 30, 2007
UNITED STATES OF AMERICA,
SUSAN L. JACKSON, DEFENDANT.
The opinion of the court was delivered by: Alan Kay United States Magistrate Judge
REPORT OF SPECIAL MASTER
By an Order dated October 30, 2007, the Honorable Richard J. Roberts, United States District Judge, appointed the undersigned to act as a Special Master, pursuant to Local Criminal Rule 57.17(b)(2), to review electronic communications contents and records for privileged communications.
After pleading guilty to wire fraud, Defendant Susan Jackson ("Jackson") submitted a memorandum in aid of sentencing and letters that purported to be from employers, friends and relatives. (Mem. Op.  at 2.) The government filed a supplemental memorandum noting that several of the letters appeared to be doctored. (Id.) In response, Jackson filed a supplemental memorandum in which she admitted to some of the discrepancies. (Id. at 3.) At Jackson's sentencing hearing, the government profferred evidence that the letters had been doctored and that Jackson sent text messages and e-mails to a witness regarding discrepancies between the letter the witness had written and the letter filed with the Court in which Jackson sought to persuade the witness to adopt the altered letter. (Id.) Following the sentencing hearing, Secret Service agents interviewed additional witnesses, one of whom indicated that Jackson used text messages and e-mails to get him to adopt the altered letter. (Id.)
The government argued that based on this information it had reasonable grounds to believe that Jackson had committed obstruction of justice, in violation of 18 U.S.C. § 1512(c) and (d). (Id. at 4.) To investigate this alleged criminal behavior, the government filed an application for an order under 18 U.S.C. § 2703(b)(1)(B)(ii) and (d) that would require Cellco Partnership, d/b/a/ Verizon Wireless (hereinafter "Verizon"), to provide records and the contents of text messages for cellular telephone number (301) 325-2737. (Gov't Application  at 1.) Judge Roberts granted the government's application on October 30, 2007. (Mem. Op.  at 16.) In light of Jackson's concern that the subpoenaed records might contain attorney-client privileged material, however, Judge Roberts appointed the undersigned as a special master to review the records that Verizon subsequently produced and redact any privileged material. (Id.)
II. Findings of Fact
Verizon produced three sets of documents in response to the government's subpoena. First, Verizon provided subscriber information for the cellular telephone number (301) 325-2737. The documents indicate that this phone number is registered to Daymond Jackson.*fn1 The subscriber information also included calling features and payment activity for that phone number.
Second, Verizon produced a package with the contents of text messages that were sent or received by cellular telephone number (301) 325-2737 between June 6 and October 31, 2007.*fn2
While a few of the messages make reference to Jackson's court case or meetings with her attorney, none of them appear to contain any communications between Jackson and her attorney.*fn3
For example, on June 6, 2007, at 3:11 p.m. the cellular phone number in question received a text message from cellular phone number (240) 687-8427 that asked "When is ur crt. date?" and approximately one minute later cellular phone number (301) 325-2737 responded "29th ." Approximately four minutes later, the person sending messages from (240) 687-8427 then asked, "Did u get all the letters u needed? And what is ur atty. saying?" to which the person sending messages from (301) 325-2737 responded "I meet w/her on Friday." The undersigned did not locate any other text messages that appear to relate to Jackson's court case or that might constitute a communication between Jackson and her attorney.
Finally, Verizon produced transaction logs for Jackson's email address, email@example.com. The e-mail transaction log indicates the date and time that each e-mail was sent and the e-mail address of the recipient. The pages of the transaction log that Verizon provided contain records of e-mails sent by Jackson between June 11 and July 9, 2007. The log shows thirty-three e-mails between Jackson and her attorney, Dani Jahn of the Federal Public Defender's Office, between June 13 and July 9, 2007. Verizon did not produce the contents of any of these e-mails.
III. Conclusions of Law
The attorney-client privilege shields from disclosure "confidential communications made between clients and their attorneys when the communications are for the purpose of securing legal advice or services." In re Lindsey, 158 F.3d 1263, 1268 (D.C. Cir. 1998). See also Proposed Fed. R. Evid. 503(b) ("A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself . . . and his lawyer . . . .").
The existence of a communication between a client and her attorney is not privileged, even if the content of that communication would otherwise be protected. Matter of Walsh, 623 F.2d 489, 494 (7th Cir. 1980). See also United States v. Pipkins, 528 F.2d 559, 562 (5th Cir. 1976) ("The attorney client privilege prohibits the disclosure of the substance of communications made in confidence by a client to his attorney for the purpose of obtaining legal advice.") (emphasis added); United States v. Kendrick, 331 F.2d 110, 113 (4th Cir. 1964) ("It is the substance of the communications which is protected, however, not the fact that there have been communications."). Therefore the e-mail transaction log, which shows e-mail traffic between Jackson and her attorney, Dani Jahn, is not protected by the attorney-client privilege and should be turned over to the government.
Furthermore, the substance of a communication between a client and her attorney is not protected unless it was made "for the purpose of securing legal advice or services." In re Lindsey, 158 F.3d at 1268. Stated differently, communications that are not relevant to the client's legal problem are not shielded from disclosure by the attorney-client privilege. See, e.g., United States v. Woodruff, 383 F.Supp. 696, 698 (E.D. Pa. 1974) (holding that communications between attorney and client about the client's trial date did not involve the subject matter of the representation and therefore were not privileged). The undersigned did not locate any text messages that appeared to be both (1) between Jackson and her attorney and (2) for the purpose of securing legal advice or services. Therefore none of the text messages that Verizon produced are protected by the attorney-client privilege and should accordingly be turned over to the government. Similarly, the subscriber information for the above-mentioned cellular phone account is not privileged because it does not reflect a communication between attorney and client. Therefore the subscriber information should be turned over to the government, as well.
IV. Conclusion and Recommendation
Accordingly, the undersigned concludes that the materials produced by Verizon pursuant to the government's subpoena should be released to the government in their entirety.