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ORDER RE: DEFENDANTS’ JOINT

MOTION FOR RETURN OF PROPERTY

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA,

Plaintiff,

v.

WADE B. COOK, and LAURA M. COOK,

Defendants.

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CASE NO. CR05-0424-TSZ

ORDER RE:

DEFENDANTS’ JOINT MOTION FOR

RETURN OF PROPERTY

Defendants Wade and Laura Cook have been indicted on several charges relating to

conspiracy and violation of the internal revenue laws in connection with certain charitable

remainder unitrust agreements and a limited partnership, Never Ending Wealth, LP. (Dkt. 108.)

Before charges were filed, and during the execution of a search warrant at the Cook’s residence

on June 29, 2005, the government seized a three-ring binder. The cover of the binder contained

the notation “Cook, Wade & Laura 10536.01 Meeting Notebook March 10, 2004 Laura Cook

copy”. The Cooks assert that their then-attorney, Robert Chicoine, prepared the notebook for a

March 10, 2004 meeting to discuss strategy relating to the pending criminal investigation.

Defendants jointly moved for the suppression and return of the binder and its contents, contending

the communications contained therein were privileged communications between Wade and Laura

Cook and their attorney. (Dkt. 118.) Defendants also moved for an evidentiary hearing to

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ORDER RE: DEFENDANTS’ JOINT

MOTION FOR RETURN OF PROPERTY

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determine the facts surrounding the seizure, retention, and potential use of the binder by the

government.

The government responded that the binder had been seized, but not examined pending a

determination of the privileged nature of its contents. (Dkt. 123.) The government agreed that

some portion of the binder may contain confidential attorney-client communications, but asserted

the binder might also contain copies of a promissory note specified in the search warrant. The

government argued that documents cannot be rendered privileged simply by including them within

an otherwise privileged set of materials.

On November 2, 2006, the Honorable Thomas S. Zilly denied defendants’ motion for an

evidentiary hearing, finding a failure to show a significant disputed factual issue. Judge Zilly

deferred the motion for return of property pending an in camera examination of the binder and

its contents by the undersigned United States Magistrate Judge, and a determination of the extent

to which the materials are protected by the attorney-client privilege. (Dkt. 142.)

The government delivered the binder and its contents and three additional documents, as

further described below, on November 3, 2006. This Order follows an examination of those items.

Description of Items Examined

Defendants describe the binder and its contents in the Motion for Evidentiary Hearing

Regarding Binder Seized by Government. (Dkt. 120 at 3-4.) The documents are tabbed and

indexed within the binder. Many of the documents consist of copies of letters or memos

exchanged between Wade or Laura Cook and Mr. Chicoine. Other documents consist of copies

of attachments such as the Limited Partnership Agreement for Never Ending Wealth or the

Certificate of Limited Partnership issued by the State of Nevada.

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ORDER RE: DEFENDANTS’ JOINT

MOTION FOR RETURN OF PROPERTY

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Work Product Doctrine and the Attorney-Client Privilege

Defendants assert the attorney-client privilege as a bar to disclosure of the documents at

issue. The attorney-client privilege is intended to promote free and open communication between

attorneys and clients by protecting client confidences. 6 James Wm. Moore et al., Moore’s Federal

Practice ¶ 26.70[8] (3d ed. 2006). The privilege protects confidential disclosures made by a client

to an attorney in order to obtain legal advice, as well as an attorney’s advice in response to such

disclosures. In re Grand Jury Investigation, 974 F.2d 1068, 1070 (9th Cir. 1992).

On the other hand, “[t]he work product doctrine is both distinct from and broader than the

attorney-client privilege.” 6 Moore’s Federal Practice ¶ 26.70[8]. The work product rule is

intended “to protect an attorney’s mental processes so that the attorney can analyze and prepare

for the client’s case without interference from an opponent.” Id. The client may assert either or

both the attorney-client privilege and the work product doctrine.

1. Binder Materials

An examination of the binder shows that most of the documents are covered by the

attorney-client privilege and all are clearly covered by the work product doctrine. Some of the

documents are copies of communications from Wade or Laura Cook to Mr. Chicoine, and his

responses, for the purpose of obtaining legal advice relating to the pending criminal investigation.

In addition, Mr. Chicoine included some of the documents in the binder so as to facilitate a

discussion of pertinent issues. Examples of such documents include the partnership agreement and

certificates issued by the Nevada Secretary of State. The binder also contains a copy of the March

10, 1999 Secured Promissory Note and Stock Pledge Agreement appended to Attachment A of

the June 24, 2005 Search Warrant, a document already in the possession of the government. The

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ORDER RE: DEFENDANTS’ JOINT

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seized materials do not include any other iterations or drafts of the Promissory Note and Stock

Pledge Agreement.

The attorney-client privilege clearly covers the letters and memos between the Cooks and

Mr. Chicoine. Various other documents included in the binder may not be so protected, since

“attachments which do not, by their content, fall within the realm of the [attorney-client] privilege

cannot become privileged by merely attaching them to a communication with the attorney[.]”

O’Connor v. Boeing N. Am., Inc., 185 F.R.D. 272, 280 (C.D. Cal. 1999). The Court need not

reach that issue, however, because the documents are protected by the work-product doctrine.

That is, the inclusion of the particular documents in the binder resulted from Mr. Chicoine’s

compilation of materials preparatory to the conference with his clients to discuss their case. See,

e.g., Willingham v. Ashcroft, 228 F.R.D. 1, 6-7 (D. D.C. 2005). This “mental selective process”

reflects the attorney’s mental impressions, which are protected as work product. Shelton v.

American Motors Corp., 805 F.2d 1323, 1328 (8th Cir. 1986).

2. Other Documents

The government seized several additional documents along with the three-ring binder and

its contents. The documents include an Assignment signed by Wade B. Cook, an unsigned

Assignment with a notation “Wade–Sign for Auditors–Cindy”, and an unsigned Third Amendment

to Open-Ended Product Agreement, with a notation “Wade–Sign for Auditors–as of 6-30-

01–Cindy”. It does not appear that either the work product doctrine or the attorney-client

privilege would prevent the release of these documents. However, as discussed below, these

documents need not be disclosed because they are outside the scope of the search warrant.

Scope of the Search Warrant

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ORDER RE: DEFENDANTS’ JOINT

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Judge Zilly also charged the undersigned with determining whether the binder and other

materials produced for in camera inspection contain evidence within the scope of the search

warrant. Specifically, the Search Warrant allowed a search for “The Secured Promissory Note,

a copy of which is attached, and all copies of said note in whatever form” and a search of

computer systems and/or their components for the purpose of seizing copies or drafts of the

Secured Promissory Note and data related to its preparation. With the exception of the Secured

Promissory Note and Stock Pledge Agreement (a duplicate of the copy attached to the Search

Warrant), it appears that the documents at issue do not come within the scope of the warrant.

Conclusion

The binder and its contents should be returned to defendants, along with the three

additional documents consisting of a signed Assignment, an unsigned Assignment, and the Third

Amendment to Open-Ended Product Agreement. Pending the resolution of this case, the

binder, its contents, and the three additional documents should be maintained by the

defendants in the condition in which the materials are returned to them. The Clerk is

directed to send copies of this Order via electronic notification to each of the following: counsel

for the United States, counsel for Defendants, the Honorable Thomas S. Zilly, and Judge Theiler.

If electronic notification is not available for a given party, the Clerk is directed to send via firstclass mail a copy of this Order to that party.

DATED this 16th day of November, 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

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