United States v. Kitzhaber (In re Subpoena)

Decision Date13 July 2016
Docket NumberNo. 15-35434,15-35434
Citation828 F.3d 1083
PartiesIn re Grand Jury Subpoena, JK-15-029, United States of America, Plaintiff–Appellee, v. John A. Kitzhaber, Intervenor–Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Janet Lee Hoffman (argued) and Jennifer E. Roberts, Janet Hoffman & Associates LLC, Portland, Oregon, for IntervenorAppellant.

Kelly A. Zusman (argued) and Scott Bradford, Assistant United States Attorneys; Billy J. Williams, United States Attorney; United States Attorney's Office, Portland, Oregon; for PlaintiffAppellee.

Before: Raymond C. Fisher, Marsha S. Berzon, and Paul J. Watford, Circuit Judges.

OPINION

BERZON

, Circuit Judge:

This case arises in the midst of an investigation by the federal government into activities of the former Governor of Oregon, John Kitzhaber. A grand jury's subpoena seeks a broad range of information from the State of Oregon, much of which would be available to the general public under Oregon's public records laws. But a wide net is susceptible to snags.

For several years before Kitzhaber left office, copies of his personal emails were archived on Oregon's computer servers. According to Kitzhaber, he was unaware of the archiving of these emails, which include many private details unrelated to his official duties regarding him and his family, as well as private communications with his personal attorneys and with attorneys for the State of Oregon. Because this cache would be turned over to the government under the subpoena, Kitzhaber argues the subpoena is unreasonably broad, as it violates his Fourth Amendment privacy rights and invades his attorney-client privilege. Kitzhaber asserts in particular that the attorney-client privilege protects his communication with attorneys for the State of Oregon regarding issues concerning possible conflicts of interest and ethics violations. The government disclaims any interest in Kitzhaber's communications with his personal attorneys but argues it is otherwise entitled to everything it has requested.

The public's interest in accountability and transparency is particularly strong when it comes to the investigation of elected officials, and grand juries are appropriately accorded a wide degree of latitude. But we agree with Kitzhaber that he had a reasonable expectation of privacy in much of his personal email (although the Fourth Amendment's protection does not extend to any use of a personal email account to conduct public business), and that the subpoena in this case—which is not even minimally tailored to the government's investigatory goals—is unreasonable and invalid. We do not agree, however, that Kitzhaber may assert the attorney-client privilege for his communications, including communications regarding potential conflicts of interest and ethics violations, with the State of Oregon's attorneys. Whatever privilege may protect those communications belongs to the State of Oregon, not to Kitzhaber as an individual officeholder in his personal capacity.

I

John Kitzhaber served as Governor of Oregon from 1995 until 2003, and again from 2011 until 2015. During this second period in office, Kitzhaber declined to use an official email address provided by the State of Oregon. Instead, he established an account with the commercial email service Gmail, which he used for official business. He requested that the Oregon Department of Administrative Services (DAS) archive on the state's servers emails sent to or from this “official” Gmail address, and DAS complied.

In addition to his official Gmail account, Kitzhaber had a personal Gmail account and another personal account hosted at att.net. He checked all of these accounts from the same computer. According to a member of the Governor's senior staff, Kitzhaber commonly used his personal addresses “to communicate with senior staff for both personal and state business.”

In February of 2015, Kitzhaber resigned from office, surrounded by controversy over whether he had used his position to benefit his fiancée, Cylvia Hayes. See Lee van der Voo and Kirk Johnson, Governor Leaves Office in Oregon, Besieged in Crisis , N.Y. Times, Feb. 14, 2015, at A1, http://www.nytimes.com/2015/02/14/us/kitzhaber-resigns-as-governor-of-oregon.html. Shortly before Kitzhaber's resignation, a federal grand jury issued a subpoena to DAS as part of an investigation into the Governor's actions. The subpoena asked DAS to provide “all information, records, and documents” going back to January 1, 2009, “relating to” Kitzhaber, Hayes, and several businesses and other entities. The subpoena also sought “any and all email communications from or to, or regarding” seventeen individuals, including Kitzhaber and Hayes.

After he left office, Kitzhaber intervened in the grand jury proceedings, filing a motion to quash the subpoena in the United States District Court for the District of Oregon. According to Kitzhaber, shortly before resigning he discovered that DAS had been archiving emails to and from his personal email accounts on state servers. Kitzhaber asserted that DAS was not authorized to archive his emails from his personal addresses, which he says contain a great deal of private communication, including privileged communication with his personal attorneys. He challenged the subpoena on the grounds that it was unreasonably broad; a violation of his Fourth Amendment rights; and a violation of attorney-client privilege.

The district court ruled that Kitzhaber's communication with his private attorneys over his personal email addresses was protected by the attorney-client privilege and should not be disclosed to the grand jury. The court directed the government to create a “taint/filter team” to segregate the protected emails from the remaining content generated in response to the subpoena and prevent the protected content from reaching the jury. It ruled against Kitzhaber on every other issue. The court held that third parties to a subpoena, like Kitzhaber here, may not challenge the burden of production required to comply with the subpoena. It also held that any potential Fourth Amendment violation could be raised only in a suppression motion filed if Kitzhaber ends up being indicted and brought to trial. And it held that the attorney-client privilege did not apply to Kitzhaber's communication with government attorneys. The court therefore declined to quash the subpoena. Kitzhaber timely appealed.

II

Kitzhaber argues that the district court should have quashed the subpoena in its entirety. We agree.

The subpoena includes emails on his personal accounts that Kitzhaber reasonably expects to remain private, as they do not concern public business. (Like the district court, we proceed on the assumption that Kitzhaber did not authorize DAS to archive the emails from his personal accounts). The subpoena does not exclude these communications or otherwise limit the documents demanded to those within the scope of the government's legitimate concern in conducting a thorough investigation of Kitzhaber's conduct of official business. As a result, the subpoena is unreasonably overbroad—analogous, that is, to a general warrant, which constitutes an unreasonable search under the Fourth Amendment. See United States v. Bridges , 344 F.3d 1010, 1016 (9th Cir. 2003)

. As such, the subpoena, as drafted, may not be enforced.

A. “The grand jury is, to a degree, an entity independent of the courts, and both the authority and the obligation of the courts to control its processes are limited.” In re Grand Jury Investigation of Hugle , 754 F.2d 863, 864 (9th Cir. 1985)

. But the normal rule of noninterference is “not absolute.” Id. A subpoena is not automatically valid “merely because the Constitution does not prohibit it and the material [it seeks] is not privileged.” United States v. Bergeson , 425 F.3d 1221, 1226 (9th Cir. 2005). Rather, courts may “exercise supervisory power over the grand jury where there is a clear potential for a violation of the rights either of a witness or of a nonwitness, if the violation cannot be corrected at a later stage.” Hugle , 754 F.2d at 864.

Here, there is a clear potential for the violation of Kitzhaber's rights. [A]n order for the production of books and papers may constitute an unreasonable search and seizure within the 4th Amendment.” Hale v. Henkel , 201 U.S. 43, 76, 26 S.Ct. 370, 50 L.Ed. 652 (1906)

, abrogated in part on other grounds by

Murphy v. Waterfront Comm'n of New York Harbor , 378 U.S. 52, 68, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). This can be true “whether under a search warrant or a subpoena duces tecum .” Id.1 When the government crafts subpoenas, it must “make a reasonable effort to request only those documents that are relevant and non-privileged, consistent with the extent of its knowledge about the matter under investigation.” In re Horn , 976 F.2d 1314, 1318 (9th Cir. 1992). A subpoena without such tailoring is “equally indefensible as a search warrant would be if couched in similar terms.” Hale , 201 U.S. at 77, 26 S.Ct. 370. Thus, where a grand jury's subpoena, given its overbreadth, would itself violate the privacy interests protected by the Fourth Amendment, [j]udicial supervision is properly exercised in such cases to prevent the wrong before it occurs.”2

United States v. Calandra , 414 U.S. 338, 346, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).

B. The district court concluded otherwise. It was of the view that it was obliged to enforce the subpoena as long as there was a “reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation,” citing United States v. R. Enter prises, Inc. , 498 U.S. 292, 301, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991)

. Not so.

R. Enterprises

held that where “a subpoena is challenged on relevancy grounds, the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the...

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