Free Order on Motion for Order - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 616

Filed 01/05/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Criminal Case No. 04-cr-00103-REB UNITED STATES OF AMERICA, Plaintiff, v. 1. NORMAN SCHMIDT, 2. GEORGE ALAN WEED, 3. PETER A.W. MOSS, 4. CHARLES LEWIS, 5. JANNICE McLAIN SCHMIDT, 6. MICHAEL SMITH, and 7. GEORGE BEROS, Defendants.

ORDER RE: GOVERNMENT' MOTION FOR SUPPLEMENTAL S ORDERS TO IMPLEMENT ORDER DIRECTING VIDEOTAPED DEPOSITION OF GARY HERBERT [#588] Blackburn, J. The matter before me is the government' motion for supplemental orders to s implement order directing videotaped deposition of Gary Herbert [#588], filed November 18, 2005.1 The government' motion implicates the attorney-client privilege s and the crime-fraud exception to the privilege. The information currently available to me is insufficient pro tanto for me to determine the issues raised by and inherent to the

The motion is contained within Government' Status Report And Motion for Supplemental s Orders To Implement Order Directing Videotaped Deposition of Gary Herbert [#588], filed November 18, 2005.

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government' motion and defendant' Norman Schmidt' response.2 Therefore, I s s, s, enter this order to identify relevant information and to schedule its submission. THEREFORE, IT IS ORDERED as follows: 1. That the government' motion for supplemental orders to implement order s directing videotaped deposition of Gary Herbert [#588], filed November 18, 2005, is granted in part as provided in this order; 2. That by January 12, 2006, the government shall identify with as much specificity as reasonably practicable the areas, including any documents, about which it intends to inquire of Mr. Herbert; 3. That by January 19, 2006, any defendant with standing to do so shall assert any claim of attorney-client privilege with as much specificity as reasonably practicable vis-à-vis any communication (oral or written) about which the government represents it may inquire of Mr. Herbert; 4. That by January 24, 2006, the government shall assert the crime-fraud exception, or any other relevant exception, with as much specificity as reasonably practicable to the assertion by any defendant of attorney-client privilege vis-à-vis any communication (oral or written) identified as required in paragraph 3 above; 5. That by January 30, 2006, any defendant with standing to do so shall respond with as much specificity as reasonably practicable to the government' assertion of the s crime-fraud exception to the attorney-client privilege vis-à-vis any communication (oral

See Response to Government' Status Report And Motion for Supplemental Order To s Implement Order Directing Videotaped Deposition of Gary Herbert [#596], filed November 29, 2005.

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or written) identified as required in paragraphs 3 and 4 above; 6. That depending on the submissions of the parties, I may rule on the papers, require further briefing, set an evidentiary hearing, schedule oral argument, conduct an in camera review of relevant documents,3 or enter other propitious orders; and 7. That the videotaped deposition of Mr. Herbert should be scheduled and conducted as soon as practicable4 on or after February 6, 2006. Dated January 5, 2006, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Judge

Assuming the sine qua non for such in camera review is established as required by United States v. Zolin, 491 U.S. 554, 109 S.Ct. 2619 (1989). Of course, the deposition session or sessions should be scheduled consistent with the physical and medical condition of Mr. Herbert and as required otherwise by my order directing the deposition of Mr. Herbert [#548] entered September 26, 2005.
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