CA4: USMJ must review law firm’s seized privileged materials, not USAO’s “filter team”

Two days after oral argument on a law firm’s appeal that a USMJ reviewed privileged materials seized from the firm by search warrant and not the USAO’s “filter team,” the Fourth Circuit orders the Magistrate to do it pending issuance of the opinion. United States v. Under Seal, 19-1730 (4th Cir. Sept. 12, 2019):

Upon careful consideration of the various submissions of the parties and the oral argument conducted on September 10, 2019, the Court enters this interim Order, in the interests of justice and to expedite the proceedings. First, the Court denies the motion of the Government to file its ex parte supplemental appendix. Second, as will be further explained in its forthcoming opinion in this appeal, the Court reverses the district court’s denial of the Law Firm’s request that review of the seized materials be made by the magistrate judge, rather than by the Filter Team. Accordingly, the duties and functions previously assigned to the Filter Team are hereby reassigned to the magistrate judge.

The Court retains jurisdiction over this appeal and makes a limited remand to the district court with the following instructions:

(1) The magistrate judge shall forthwith:
a. Review all seized materials and identify the seized materials that do not relate to the person referred to by the Law Firm as its “Client A” (and by the Government as “Target Lawyer B”);
b. Return to the Law Firm those seized materials that are unrelated to Client A; and
c. Conduct a privilege evaluation of the remaining seized materials;
(2) All work product of the Filter Team shall forthwith be delivered by the Government to the magistrate judge for filing under seal; and
(3) In reviewing the seized materials, the magistrate judge is entitled: ….

NLJ: ‘None of the Government’s Business’: Prosecutors Rebuked Over Search of Law Firm (“A federal appeals panel said Thursday a U.S. magistrate judge, and not federal prosecutors, should look at email files seized from a law firm in an obstruction investigation.”)

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