Federal Trade Commission v. National Urological Group, Inc. et al
ORDER GRANTING 353 Motion for a court determination of waiver of attorney client privilege; DENYING 357 Cross Motion to Dismiss; DENYING 357 Motion to Disqualify Attorney. The clerk is DIRECTED to docket (unsealed) the plaintiffs reply in support of its motion re 332 for a show cause order. The question of whether a temporary seal is necessary is moot. Signed by Judge Charles A. Pannell, Jr. on 01/20/2012. (jtj)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
FEDERAL TRADE COMMISSION,
NATIONAL UROLOGICAL GROUP,
INC., et al.,
O R D E R
determination of waiver of contempt defendants’ attorney-client
privilege [Doc. No. 353], and the contempt defendants’ cross motion
to dismiss the charges or disqualify the FTC trial team [Doc. No.
The FTC’s motion asks the court to temporarily seal its reply
brief in support of its motion for show cause order [Doc. No. 332]
until the court can determine whether the contempt defendants
waived the attorney-client privilege. The briefing on the waiver
issue is now complete, so the court will rule on that issue; the
question of whether a “temporary” seal is necessary is thus moot.
The FTC argues that the defendants waived the attorney-client
privilege in two respects. First, defendant Jared Wheat waived his
privilege by communicating with his attorney using a prisonmonitored email system, the Trust Fund Limited Inmate Computer
System (TRULINCS). Essentially, TRULINCS requires prisoners using
the system to consent to monitoring and warns that communications
with attorneys are not privileged. Second, the contempt defendants
waived the privilege as to communications related to compliance
with this court’s final judgment order [Doc. No. 230] by asserting
a reliance of counsel defense in their opposition to the motion for
convincing. Regarding the waiver by use of TRULINCS, the defendants
argue the emails were illegally seized in violation of the Stored
constitutional rights. However, the SCA does not apply to the
prison’s email system because the disclosure was not “required”
under § 2703(a) and because it neither provides an electronic
communication service to the “public” nor were Wheat’s emails in
“electronic storage,” under § 2702(a). See also FTC’s Opp’n to
violated because he consented to the monitoring and thus had no
reasonable expectation of privacy, and because the Sixth Amendment
does not apply in a civil contempt proceeding. See also id. at 1016.
As to the reliance of counsel defense, the defendants argue
this does not “completely” waive the attorney-client privilege, but
at most waives it with the single attorney they consulted regarding
compliance with the judgment. But “[o]nce a party waives the
generally ‘extends to all other communications relating to the same
subject matter.’” Mohawk Indus., Inc. v. Interface, Inc., No.
4:07-CV-0212-HLM, 2008 WL 5210386, at *7 (N.D. Ga. Sept. 29, 2008).
Accordingly, the court finds that the contempt defendants
waived their attorney-client privilege in connection with (1) Jared
Correctional Institution in Jesup, Georgia, monitored during the
time he was incarcerated and (2) attorney-client communications and
other documents that contain or relate to advice that counsel gave
them about the compliance of their advertising with the final
judgment and the FTC Act.
The motion for a court determination of waiver of attorneyclient privilege [Doc. No. 353] is GRANTED and the defendants’
cross motion to dismiss or disqualify the FTC team trial team [Doc.
No. 357] is DENIED. The clerk is DIRECTED to docket (unsealed) the
plaintiff’s reply in support of its motion [Doc. No. 332] for a
show cause order.
SO ORDERED, this 20th day of January, 2012.
/s/ Charles A. Pannell, Jr.
CHARLES A. PANNELL, JR.
United States District Judge
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