United States v. Seal (In re Search Warrant Issued June 13, 2019 )

• Decision Date: 31 October 2019
• Docket Number: No. 19-1730,19-1730
• Citation: 942 F.3d 159
• Parties: IN RE: SEARCH WARRANT ISSUED JUNE 13, 2019 United States of America, Plaintiff - Appellee, v. Under Seal, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

942 F.3d 159

IN RE: SEARCH WARRANT ISSUED JUNE 13, 2019United States of America, Plaintiff - Appellee,

v.Under Seal, Defendant - Appellant.

No. 19-1730

United States Court of Appeals, Fourth Circuit.

Argued: September 10, 2019

Decided: October 31, 2019

Amended: October 31, 2019

ARGUED: James Patrick Ulwick, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellant. Derek Edward Hines, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Steven M. Klepper, Louis P. Malick, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellant. Robert K. Hur, United States Attorney, Aaron S.J. Zelinsky, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Before GREGORY, Chief Judge, and KING and RUSHING, Circuit Judges.

Reversed and remanded by published opinion. Judge King wrote the opinion, in which Chief Judge Gregory and Judge Rushing joined. Judge Rushing wrote a separate concurring opinion.

KING, Circuit Judge:

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.

I.

A.

1.

For about three years, "Lawyer A," a partner of the Law Firm, handled the representation of "Client A" in an investigation conducted by federal authorities in Maryland.¹ Client A — who is also a Maryland lawyer — was suspected of assisting drug dealers in illicit activities, including money laundering and obstruction of federal investigations. According to the government, its investigation of Client A was obstructed by Lawyer A, and the relationship between Lawyer A and Client A triggered an application of the crime-fraud exception to the attorney-client privilege and work-product doctrine. In light of Lawyer A's suspected misconduct, the government also initiated an investigation of Lawyer A.

As part of those investigative efforts, an IRS agent applied for a warrant to conduct a search of the Law Firm's Baltimore offices. On June 13, 2019, the magistrate judge approved the search warrant application and issued the warrant as requested. Based on her review of the supporting affidavit of the IRS agent, the judge found probable cause for the search of the Law Firm and the seizures of client-related materials concerning Lawyer A's representation of Client A.

2.

Contemporaneously with issuance of the search warrant, the magistrate judge authorized the Filter Team, which had been proposed to the judge ex parte by the prosecutors in connection with the search warrant application. In so doing, the judge adopted the "Filter Team Practices and Procedures" specified in an attachment to the search warrant application and affidavit (the "Filter Protocol"). See S.J.A. 41-45.² The Filter Protocol defined the membership of the Filter Team and established the process for its review of the materials to be thereafter seized from the Law Firm. Members of the Filter Team included lawyers from the United States Attorney's Office in Maryland's Greenbelt Division (the "Filter Team AUSAs"); a legal assistant and a paralegal who also worked there; agents of the IRS and DEA; and forensic examiners. The Filter Team operated in one of the two offices of Maryland's United States Attorney — the Greenbelt office.

Pursuant to the Filter Protocol, the Filter Team members were not involved in the investigations of Lawyer A and Client A (apart from being Filter Team members). The agents and prosecutors conducting the investigations of Lawyer A and Client A (the "Prosecution Team") were excluded from the Filter Team. In contrast to the Filter Team AUSAs who were assigned to the Greenbelt office, the Prosecution Team lawyers were assigned to the United States Attorney's Baltimore office.

As for the Filter Team's process of reviewing attorney-client materials seized from the Law Firm, the Filter Protocol provided for privilege issues to be handled thusly:

• After seizing materials from the Law Firm, the Filter Team would identify and separate privileged and potentially privileged materials from materials that were not privileged. Under the Filter Protocol, privileged materials included "attorney-client information, attorney work product information, and client confidences that have not been waived," see S.J.A. 43, 45;

• When seized materials were found by the Filter Team to be nonprivileged, the Filter Team AUSAs could forward such materials directly to the Prosecution Team, without the consent of the Law Firm or a court order (the "Privilege Assessment Provision");

• For privileged and potentially privileged materials, the Filter Team would decide whether any such seized materials were "responsive to the search warrant," id. at 44;

• For privileged and potentially privileged materials that were "responsive to the search warrant," id. , the Filter Team AUSAs would place them in one of three categories:

1. Seized materials that were privileged and could not be redacted;

2. Seized materials that were privileged but could be redacted; or

3. Seized materials that were potentially privileged (for example, when the Filter Team identified some possible exception, such as the crime-fraud exception, to a claim of privilege);

• After providing copies to counsel for Lawyer A of the seized materials identified as within categories 2 and 3, the Filter Team AUSAs would seek an agreement with counsel for Lawyer A concerning whether those materials could be forwarded to the Prosecution Team; and

• If the Filter Team AUSAs and counsel for Lawyer A disagreed on the handling of seized materials, the Filter Team AUSAs would submit such "items to the court for [a] determination regarding privilege and/or proposed redactions of the privileged material," id.

The Filter Protocol also authorized the Filter Team to provide the Prosecution Team with seized materials if a Filter Team member "obtain[ed] [a] waiver[ ] of the attorney-client privilege" by directly contacting the Law Firm client holding the privilege. See S.J.A. 42. Under the Protocol, "[i]f a client waive[d] the attorney-client privilege as to files, no further filter review of [those] files ... for attorney-client privileged material [was] required." Id.

3.

Five days after the magistrate judge issued the search warrant, on June 18, 2019, fifteen IRS and DEA agents — who were members of the Filter Team — executed the warrant by conducting a six-hour search of the Law Firm's offices. Those agents seized voluminous materials, including certain "confidential, privileged documents" of the Law Firm concerning, inter alia, Lawyer A's representation of Client A. See S.J.A. 66. For example, the agents electronically copied and seized the contents of Lawyer A's iPhone and computer. The electronically seized materials contained all of Lawyer A's email correspondence, including email correspondence related to Client A and numerous other Law Firm clients.³ More specifically, Lawyer A's seized email inbox contained approximately 37,000 emails, of which 62 were from Client A or contained Client A's surname. And Lawyer A's seized email "sent items" folder contained approximately 15,000 emails, of which 54 had been sent to Client A or contained Client A's surname. Id. at 80.⁴ An "extensive" portion of the seized emails were "from other [Law Firm] attorneys concerning ... other attorneys' clients that have no connection with th[e] investigation[s]" of Lawyer A and Client A. Id. at 66. Notably, some of those Law Firm clients "are being investigated by, or are being prosecuted by, the United States Attorney's Office [for the District of Maryland] for unrelated crimes." Id.⁵

During the execution of the search warrant by the IRS and DEA on June 18, 2019, various Law Firm partners voiced objections, including to the breadth of the search and seizures. Those objections were made directly to the federal agents conducting the search, and were also made to at least two prosecutors, including a member of the Prosecution Team. A Law Firm partner specifically requested that the government's forensic examiners limit their seizures of Lawyer A's emails to those that included Client A's name or other relevant search terms. Those requests were all rejected.⁶

By letter delivered to the United States Attorney on June 21, 2019, the Law Firm asserted that the search and seizures contravened the Constitution, Federal Rules of Criminal Procedure, and United States Attorneys' Manual. Additionally, the Law Firm advised the government that the Firm had a duty "to preserve client confidences and secrets," see S.J.A. 71, and that it was "ethically mandated to urge the return of all items seized by the government," id. at 72. The Law Firm's letter objected to the use of the Filter Team and requested that the government return the seized materials so that the Firm could conduct a privilege review — which would have been the process had the government used subpoenaes duces tecum rather than a search warrant. The Law Firm also requested that the government not examine any of the seized...