CA11: Govt filter team for review of seized materials not per se unreasonable; stringent protocol followed

The use of a government filter time to review seized materials implicating the attorney-client privilege is not per se unreasonable. The USMJ ordered compliance with a more stringent protocol than approved in other cases. Injunction denied. In re Sealed Search Warrant & Application for a Warrant by Tel. Or Other Reliable Elec. Means, 2021 U.S. App. LEXIS 26063 (11th Cir. Aug. 30, 2021):

This case requires us to consider whether the use of a government filter team to review seized materials that are claimed to be privileged necessarily violates the privilege holder’s rights. Here, the government obtained and executed a search warrant at a suite of offices where the Optima Family Businesses were located. Among the materials seized were items from the office of an in-house attorney. The Optima Family Businesses and their owners, managers and controllers (collectively, the “Intervenors”) assert attorney-client and work-product privilege over at least some of these documents.

They filed a motion under Rule 41(g), Fed. R. Crim. P., to obtain injunctive relief prohibiting the United States’s filter team—which included attorneys and staff who were not involved in the criminal investigation of the Optima Family Companies and the individual owners, managers, and controllers—from reviewing any potentially privileged documents unless either the Intervenors agree or the court, after conducting its own privilege review, orders disclosure.

The district court held a hearing on the Intervenors’ motion and imposed a modified filter protocol but denied the Intervenors’ request to prohibit anyone from the government from reviewing potentially privileged documents unless the Intervenors agree or the court orders disclosure. The Intervenors now appeal that denial. After careful consideration and with the benefit of oral argument, we now affirm the district court’s order denying the Intervenors’ motion to enjoin the use of a filter team. We agree with the district court that the Intervenors have not showed a substantial likelihood of success on their argument that government filter teams per se violate privilege holders’ rights.

. . .

… For three reasons, we conclude that this Protocol suffices under the law.

First, though we have not previously issued any published opinions on point, some of our sister circuits have approved of the use of a walled-off government filter team to review documents for privilege. In United States v. Jarman, 847 F.3d 259 (5th Cir. 2017), for instance, the Fifth Circuit upheld the filter team’s screening for privileged materials. Id. at 266. There, the court stated that the filter team process was “designed to protect [the] privileged information.” Id. The Second, Third, Fourth, Seventh, Eighth, Ninth and Tenth Circuits, in at least some cases, have also either approved of or recognized and declined to criticize the use of government filter teams to screen materials for privilege before items are released to the investigators in the case. See, e.g., S.E.C. v. Rajaratnam, 622 F.3d 159, 183 & n.24 (2d Cir. 2010); Search of Elec. Commc’ns in the Acct. of chakafattah gmail.com at Internet Serv. Provider Google, Inc., 802 F.3d at 530; United States v. Myers, 593 F.3d 338, 341 n.5 (4th Cir. 2010); United States v. Proano, 912 F.3d 431, 437 (7th Cir. 2019); United States v. Howard, 540 F.3d 905, 906 (8th Cir. 2008); United States v. Christensen, 828 F.3d 763, 799 (9th Cir. 2015); United States v. Ary, 518 F.3d 775, 780 (10th Cir. 2008).

Second, the Intervenors cite no cases for the broad remedy they seek: a holding that government agents “should never … review documents that are designated by their possessors as attorney-client or work product privileged” until after a court has ruled on the privilege assertion.” Nor has our research unearthed any.

Third, to the extent that courts have disapproved of particular filter-team protocols, the Modified Filter-Team Protocol suffers from none of the defects those courts found disqualifying. The Intervenors rely primarily on In re Grand Jury Subpoenas 04-124-03 and 04-124-05 (“Winget”), 454 F.3d 511 (6th Cir. 2006), and In re: Search Warrant Issued June 13, 2019 (“Baltimore Law Firm”), 942 F.3d 159 (4th Cir. 2019), to support their contention that the Modified Filter-Team Protocol violated their rights. But both cases are materially different.

Winget arose when the plaintiffs there learned that a third party had received a grand-jury subpoena for documents, some of which allegedly were subject to the plaintiffs’ claims of privilege. 454 F.3d at 512. There, the district court permitted a government-filter-team protocol under which the government’s filter team—not the purported privilege possessors or the court—determined which documents were privileged. See id. at 515. Only if the team found a document definitely or possibly privileged did it submit it to the court for a privilege review. See id. at 515, 518 n.5.

The Sixth Circuit held that this protocol failed to sufficiently protect the plaintiffs’ claims of privilege. First, the court questioned the use of a government filter team in non-search-warrant situations like the one at issue there. Id. at 522-23. But after a search warrant is executed, the court recognized, the government has physical control of potentially privileged documents. Id. at 522. So, the court reasoned, “the use of the [filter] team to sift the wheat from the chaff constitutes an action respectful of, rather than injurious to, the protection of privilege.” Id. at 522-23. And second, the court expressed concern that a government filter team that takes the first pass at the materials for privilege can miss privileged items and mistakenly pass them along to the investigative team. Id. at 523. In other words, a protocol of that sort imposes no check on any of the filter team’s determinations that an item is not privileged. Id.

But neither of these problems exists here. In fact, the records here are already in the government’s possession as the result of the execution of a search warrant, so under Winget, the use of a filter team to review them is “respectful of, rather than injurious to, the protection of privilege.” Id. at 522-23. And unlike in Winget, under the Modified Filter-Team Protocol, the Intervenors identify all allegedly privileged materials in the first instance. So there is no possibility here that privileged documents will mistakenly be provided to the investigative team.

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