Defendant was a paralegal at a law firm which was set for trial in a large tobacco case. In preparation for the case, the firm created a 400 page trial preparation document. Only the firm’s attorneys could access the document, but it is unclear whether defendant had access himself. Defendant is accused of mailing an excerpt of the document to opposing attorneys. FBI agents posed as the opposing attorneys in the emails and eventually set up a fake exchange with defendant’s brother. Defendant’s brother was arrested at the exchange and then gave a statement to the FBI that defendant was the supplier of the documents. Defendant was charged with violating the “National Stolen Property Act.” Defendant appeals on the basis that this Act “only applies to the physical asportation of tangible goods or currency, not to information stored and transmitted electronically.”
Circuit court held that the information exchanged is “a general and comprehensive designation of such personal property or chattels as are ordinarily a subject of commerce.” The judge ruled, however, that the information in the documents did not pertain to commerce because it was not generally the “substance of commerce.”
Whether privileged trial documents can be the subject of commerce such that their theft violates federal law.
Yes. It is the subject of interstate commerce because they are the product of the attorney client privileged, but business relationship. They are “viewed as an ordinary subject of commerce, created for a commercial purpose and carrying inherent commercial value at least as to the persons directly interested in the matter.” Moreover, the text of the applicable law makes no reference to its application to intangible property; in fact, congress intentionally changed the language to include “transmits” in agreement with a later court ruling regarding money transfers.