It is too easy for an email warrant to be a general warrant because there has to be an articulation of what the government is looking for. Moreover, all the emails may be seized so they can be searched looking for ones that are pertinent to the investigation. Here, the scope of the search was limited by enumerated crimes and a starting time for the emails. Finally, the government has a duty to protect against privileged emails being read by the search team. United States v. Patel, 2017 U.S. Dist. LEXIS 125072 (S.D. N.Y. Aug. 8, 2017):
As in Lumiere, this Court finds that the Government’s conduct does not justify blanket suppression of all emails seized pursuant to the June 10 warrants. Nothing in the warrant—which the Court has already found to be proper in all respects—required the U.S. Postal Inspection Service (the government investigative agency that received the records produced pursuant to the warrant (see ECF No. 34, Ex. 1, Warrant)) to establish a review protocol ex ante to segregate privileged emails. As a result, the Government’s review protocol, or lack thereof, did not run afoul of the warrant’s requirements. In addition, upon receiving notice that the accounts contained significant numbers of privilege materials, the Government established a “wall” review wherein a U.S. Attorney not affiliated with the investigation or prosecution of the matter reviewed the emails using search terms and filtered out privileged items before returning the unprivileged portions of the email accounts to the prosecution team and the defense. (See ECF No. 34 at 4.) Such remedial steps do not evidence the sort of bad faith or flagrant disregard of the warrant’s limits that would justify the wholesale suppression of evidence. Cf. Lumiere, 2016 U.S. Dist. LEXIS 177702, 2016 WL 7188149, at *6 (“[A]fter-the-fact notice of potentially privileged documents did not render the Government’s earlier search unreasonable.”).
Moreover, to the extent Patel argues that the Government acted recklessly by failing to screen for privileged emails before providing them to Patel’s co-defendant, the timing of the Protective Order vis-à-vis the Government’s disclosure lessens the force of his claim. As explained above, before beginning production of the emails the Government provided a Protective Order to defendants, which both defendants signed, in which the Government stated that it had collected “electronic mail of Nimesh Patel and Dilip Vadlamudi” and notified defendants that it would “disclose to counsel for the defendants, for use solely as permitted herein, the entirety of such seized ESI [electronically stored information] as the Government believes may contain disclosure material.” (ECF No. 34 at 12 n.2 (emphasis added).) The Protective Order therefore placed defendants on notice that the “entirety of [the] seized ESI” may be disclosed. Such notification provided defendants with an opportunity to raise their concerns regarding privileged materials at that time, and thereby undermines any suggestion that the Government acted in bad faith when it ultimately released the privileged materials.
Ultimately, the “Government’s review need only be reasonable, not perfect, and law enforcement is given significant latitude in determining how to execute a warrant.” Lumiere, 2016 U.S. Dist. LEXIS 177702, 2016 WL 7188149, at *6 n.9 (citing United States v. Salameh, 54 F. Supp. 2d 236, 277 (S.D.N.Y. 1999), aff’d, 16 F. App’x 73 (2d Cir. 2001)). As the case progresses, Patel may move to suppress any allegedly privileged materials that the Government seeks to introduce at trial, or may request a hearing to determine whether “information derived from [privileged] sources was used by the government, in violation of the attorney-client privilege, to prepare for trial.” See United State v. Schwimmer, 892 F.2d 237, 244-45 (2d Cir. 1989). But plaintiffs’ current request for blanket suppression of all evidence gathered from the June 10 warrants is DENIED.