In a high-profile criminal case in which a local marijuana attorney is accused of destroying evidence, a San Diego judge took measures to prevent the prosecution from potentially accessing documents protected by attorney-client privilege.
At a hearing Friday at Superior Court of San Diego County, the defense and the prosecution spent the better of two hours deliberating over methods to search the seized computer of the defendant, cannabis lawyer Jessica McElfresh, for potentially incriminating information, without invading her past clients’ confidentiality.
In front of a courtroom filled with interested attorneys and people in the marijuana industry, Judge Laura W. Halgren determined the search should begin with a query of McElfresh’s computer for only the names of people and businesses specifically mentioned as targets in the search warrant released in June. McElfresh’s own name will not be included in the initial search because the results would be too broad.
The prosecutor, Deputy District Attorney Jorge Del Portillo, argued the entire contents of McElfresh’s computer should be searched for evidence that McElfresh helped Med-West Distribution hide from city inspectors that the company was storing and distributing concentrated cannabis oil in violation zoning laws. He proposed using search terms such as “ethanol” and “butane,” chemicals commonly used in cannabis extraction, and “marijuana” so that no potential piece of evidence will be missed.
Defense attorney Eugene Iredale argued such a search would break attorney-client privilege for hundreds of people whom McElfresh has counseled and are unaffiliated with the case. In addition, he said the universe of electronic files to be reviewed by an impartial “special master” prior to submittal to the court should be limited only to those responsive to a search of McElfresh’s computer for files containing the names of individuals and entities explicitly identified as targets in the search warrant.
Halgren sided with Iredale, saying, too broad a universe is “not very feasible.” She said Del Portillo would be allowed to litigate later in the proceedings for the review of records not included in the initial search, but that searching only for individuals and entities named in the search warrant is “a good starting point.”
“I’m very happy that we seem to be focused on what is currently my number-one priority, which is protecting the privilege of clients who have nothing to do with this case,” McElfresh told NBC 7 after the hearing.
The warrant shows McElfresh, at the time of a scheduled inspection, told investigators Med-West only made and sold packaging materials for marijuana products, but a raid of its 14,000-square-foot warehouse just over a year later revealed thousands of vials of concentrated cannabis oil used in vaporizers, expensive lab equipment, and ethanol.
Then-District Attorney Bonnie Dumanis filed a slate of felony charges against Med-West chief executive officer James Slatic and four others affiliated with the business earlier this year.
An email between McElfresh and Slatic allegedly suggested McElfresh hid her client’s criminal acts from city investigators inspecting Med-West premises. Superior Court Judge Charles G. Rogers reviewed the email and ruled that certain records should no longer be protected, citing the crime-fraud exception to the attorney-client privilege.
“We did a really, really good job of giving them plausible deniability — and it was clear to them that it wasn’t a dispensary,” said McElfresh in the email, which was released in the search warrant. “But I think they suspected it was something else more than paper.”
Prosecutors charged McElfresh with a misdemeanor charge of destroying evidence after a warrant search of McElfresh’s home found an iPad submerged in water, which Del Portillo called “suspicious.”
Iredale said the iPad belonged to McElfresh’s mother, who was getting rid of it and wanted to permanently delete her information from it.
Because many of McElfresh’s seized paper and electronic documents contained privileged communications with her past clients, they were turned over to “special master” Shaun Martin, an impartial University of San Diego law professor, for review. Martin has since reviewed all the paper documents, he said at the hearing Friday.
The prosecution and defense are set to meet again on August 11 for a short briefing on the status of Martin’s review of the electronic files.