The USMJ’s ex parte creation of a “Filter Team” of federal agents and prosecutors to review the seizure of records from a law firm under a search warrant violates separation of powers and doesn’t adequately protect attorney-client privilege and work product. Indeed, practically everything about this search was wrong and trivialized and invaded the attorney-client relationship of the client involved and practically every other client of the law firm. The USMJ shouldn’t have ordered it in the protocol, and the district court erred in its legal decisions on review. (In the expedited appeal, the court of appeals granted the injunction days after the oral argument, and this is the opinion following.) In re Search Warrant Issued June 13, 2019 (United States v. Under Seal), 942 F.3d 159 (4th Cir. 2019), reh. den. 2020 U.S. App. LEXIS 2899 (4th Cir. Jan. 28, 2020):
The appellant in these proceedings is a Baltimore law firm (the “Law Firm”) that challenges the government’s use of a so-called “Filter Team” — created ex parte by a magistrate judge in the District of Maryland and comprised of federal agents and prosecutors — to inspect privileged attorney-client materials. Those materials were seized from the Law Firm in June 2019 during the execution of a search warrant issued by the magistrate judge. The Law Firm requested that the district court enjoin the Filter Team’s review of the seized materials, invoking the attorney-client privilege and the work-product doctrine. When the court denied its request, the Law Firm pursued this appeal. As explained below, we are satisfied that use of the Filter Team is improper for several reasons, including that, inter alia, the Team’s creation inappropriately assigned judicial functions to the executive branch, the Team was approved in ex parte proceedings prior to the search and seizures, and the use of the Team contravenes foundational principles that protect attorney-client relationships. We therefore reverse and remand.
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At bottom, the magistrate judge erred in assigning judicial functions to the Filter Team, approving the Filter Team and its Protocol in ex parte proceedings without first ascertaining what had been seized in the Law Firm search, and disregarding the foundational principles that serve to protect attorney-client relationships. In these circumstances, we are satisfied that the magistrate judge (or an appointed special master) — rather than the Filter Team — must perform the privilege review of the seized materials. See Klitzman, Klitzman & Gallagher, 744 F.2d at 962 (recommending appointment of special master in similar circumstances); United States v. Gallego, No. 4:18-cr-01537, 2018 U.S. Dist. LEXIS 152055 at *8 (D. Ariz. Sept. 6, 2018), ECF No. 65 (appointing a special master “to review the items seized from [the] [d]efendant’s law office for privilege and responsiveness to the search warrant”); Cohen, ECF No. 30 (Apr. 27, 2018) (appointing special master to review documents seized from lawyer); Stewart, 2002 U.S. Dist. LEXIS 10530, 2002 WL 1300059, at *10 (appointing special master to perform privilege review of documents seized from office of criminal defense lawyer). We are therefore satisfied that the Law Firm has demonstrated that it is likely to succeed on the merits.