laptop computers used by Stewart and several other MSLO employees. MSLO reached a compromise with the Government, agreeing to supply the computers and the Government agreeing not to examine the computers until MSLO identified the files pertinent to the ImClone sale, because they did not wish to give the government access to all their business files. They also handed over files under the same conditions. They submitted logs of documents, and determined that the emails from Stewart to her attorney and her daughter were privileged and neither appeared on the logs. However, MSLO inadvertently omitted the June 24 email to StewartÆs daughter from the privileged list and it was made available to the Government in the hard copy logs. As a result, the grand jury returned an indictment on June 4, 2003 charging Stewart with conspiracy, obstruction of justice, making false statements, and securities fraud.
Shortly afterwards, an Assistant United States Attorney, not knowing of the agreement between MSLO and the Government, discovered the email to StewartÆs daughter, and stopped reviewing the documents when he learned of the agreement with the Government. In August, Stewart informed the Government that she was objecting to MSLOÆs production of the document, maintaining the email to Nussbaum was protected by attorney-client privilege and the work product doctrine, which she had not waived by sending a copy of the email to her daughter, who acted as her advisor, and would keep the contents of the email confidential. The Government claimed that she had waived confidentiality by sending the document to her daughter, and that privilege had also been broken by the errors made by MSLO. However, United States District Judge Miriam Goldman Cedarbaum ruled that Stewart had not waived privilege, and the emails were protected under work product from production in response to the grand jury subpoena.
The lead prosecutor in the trial was Karen ...