D.Kan.: FPD has standing to join in Rule 41(g) litigation to recover illegally recorded attorney jail calls and meetings

The Federal Public Defender has standing to participate in Rule 41(g) litigation to recover the recordings of attorney-client meetings and telephone calls that were recorded at a private prison used as a federal detention center. The government’s concerns over standing don’t rise to the level to quash subpoenas duces tecum for the recordings. United States v. Black, 2018 U.S. Dist. LEXIS 5793 (D. Kan. Jan. 12, 2018):

Based on the above undisputed facts, the Court finds that the FPD has standing to litigate its Rule 41 motion and the issues central to the Phase III investigation in this case. The injury to the FPD in having its communications with clients at CCA recorded and disseminated in this case is concrete and particularized. Indeed, the original impetus for the Rule 41 motions was allegations of the Government using recorded conversations obtained in this case to interfere in another case. Thus, the FPD’s injury, and its concern that recordings of its attorney-client communications obtained in this case could be used outside this case, was “not conjectural or hypothetical.” Furthermore, the injury is fairly traceable to the particular conduct at issue in this case of the Government obtaining and disseminating confidential attorney-client communications. Finally, as the Court has explained in previous orders, the injury to the FPD and other parties is potentially remediable by curative measures the Court may implement following the conclusion of Phase III of the Special Master’s investigation.

Moreover, even if the Court erred in granting the FPD’s motion to intervene and in finding that the FPD has standing to litigate these issues, there are Defendants who clearly do have standing. Throughout this litigation, Defendants Carter, Bishop, and other Defendants have appeared alongside the FPD and have joined in the FPD’s arguments and motions. All Defendants joined in the FPD’s Rule 41 motion that spurred the Court’s appointment of the Special Master and the three Phases of his authorized investigation. Furthermore, Defendant Carter has a pending motion to dismiss based on the issues central to the Phase III investigation, and Defendants Carter and Bishop have issued subpoenas ad testificandum nearly identical to those issued by the FPD. Accordingly, the Court finds that the Government’s concerns regarding standing do not justify quashing the subpoenas ad testificandum or further delaying the evidentiary hearing intended to explore significant issues related to Defendants’ pending motions.

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