828 F.3d 1083 (9th Cir. 2016), 15-35434, Grand Jury Subpoena v. Kitzhaber

Docket Nº:15-35434
Citation:828 F.3d 1083
Opinion Judge:Marsha S. Berzon, Circuit Judge.
Party Name:IN RE GRAND JURY SUBPOENA, JK-15-029, UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN A. KITZHABER, Intervenor-Appellant
Attorney:Janet Lee Hoffman (argued) and Jennifer E. Roberts, Janet Hoffman & Associates LLC, Portland, Oregon, for Intervenor-Appellant. Kelly A. Zusman (argued) and Scott Bradford, Assistant United States Attorneys; Billy J. Williams, United States Attorney; United States Attorney's Office, Portland, Ore...
Judge Panel:Before: Raymond C. Fisher, Marsha S. Berzon, and Paul J. Watford, Circuit Judges.
Case Date:July 13, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

In the midst of a federal investigation into activities of the former Governor of Oregon, John Kitzhaber, a grand jury subpoena seeks a broad range of information from the State of Oregon. For several years before Kitzhaber left office, copies of his personal emails were archived on Oregon’s computer servers. Because this cache would be turned over to the government under the subpoena, Kitzhaber... (see full summary)

 
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828 F.3d 1083 (9th Cir. 2016)

IN RE GRAND JURY SUBPOENA, JK-15-029, UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JOHN A. KITZHABER, Intervenor-Appellant

No. 15-35434

United States Court of Appeals, Ninth Circuit

July 13, 2016

Argued and Submitted, November 2, 2015 Portland, Oregon.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Oregon. D.C. No. 3:15-mc-00129-HZ. Marco A. Hernandez, District Judge, Presiding.

SUMMARY[*]

Grand Jury Subpoena

The panel reversed the district court's order declining to quash a grand jury subpoena seeking a broad range of information from the State of Oregon as part of a federal investigation into activities of former Governor John Kitzhaber, and remanded.

For several years before Kitzhaber left office, copies of his personal emails were archived on Oregon's computer servers. The panel agreed with Kitzhaber, an intervenor, 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. The panel held that Kitzhaber may not 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. The panel explained that whatever privilege may protect those communications belongs to the State of Oregon, not to Kitzhaber as an individual officeholder in his personal capacity.

The panel remanded with instructions to quash the present subpoena in its entirety. The panel declined to address in the first instance issues likely to arise concerning the means of segregating and producing the material requested by a subpoena tailored in accordance with this opinion.

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

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 Plaintiff-Appellee.

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

OPINION

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Marsha S. 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

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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 fiancé e, 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

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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...

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