Compelled disclosure of work-product or attorney-client material is redressable only if party took steps to preserve confidentiality

PRIVILEGE/APPELLATE PRACTICE/EVIDENCE United States v. Ary, No. 06-3383, ___ F.3d ___ (10th Cir. Mar. 4, 2008)(Kansas). Appeal of conviction and sentence for mail and wire fraud, theft of government property, transportation of stolen property, and money laundering stemming from transactions involving space artifacts belonging to science museum. HELD: (1) In case of involuntary disclosure of material allegedly covered by work-product doctrine or attorney client privilege, party asserting privilege must pursue all reasonable means to preserve material’s confidentiality. On appeal, court of appeals will take into account circumstances surrounding disclosure, and will examine specificity with which party identified material, whether protection was asserted in a timely fashion, and whether additional steps, such as judicial action, were necessary for protection. (2) 10th Cir. R. 28.1 requires parties to cite to place in the record where evidence can be found. A 600-page range does not satisfy this requirement. (3) Science museum’s computer and paper inventory records of items contained in collection of historic space artifacts were properly admissible under business records exception to hearsay rule at Rule 803(6) of Federal Rules of Evidence where testimony of museum curators established that those records were kept in course of regularly conducted business activity, and it was regular practice of museum curators to make such records. Read the opinion here.