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Date: 01-27-2008

Case Style: United States of America v. Comprehensive Drug Testing, Inc.

Case Number: 05-10067

Judge: Diarmuid F. O’Scannlain

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Northern District of California, San Fancisco County

Plaintiff's Attorney:

Erika R. Frick, Assistant United States Attorney, San Francisco, California, argued the cause for defendant-appellant, United States of America; United States Attorney Kevin V. Ryan, Appellate Chief Hannah Horsley, Assistant United States Attorney Barbara J. Valliere, San Francisco, California; and Assistant United States Attorneys Matthew A. Parrella, Ross W. Nadel, Jeffrey D. Nedrow, Carter M. Stewart, San Jose, California, were on the briefs.

Defendant's Attorney:

Elliot R. Peters, Keker & Van Nest, LLP, San Francisco, California, argued the cause for defendants-appellees Comprehensive Drug Testing, Inc. and Major League Baseball Players Association; Ethan A. Balogh, Keker & Van Nest, LLP, San Francisco, California, and David P. Bancroft and Jeffrey C. Hallam, Sideman & Bancroft, LLP, San Francisco, California, were on the brief.


We must decide whether the United States may retain evidence it seized from Major League Baseball's drug testing administrator, and enforce an additional subpoena, as part of an ongoing grand jury investigation into illegal steroid use by professional athletes.


These three consolidated cases arise from the federal investigation of the Bay Area Lab Cooperative ("Balco") and its alleged distribution of illegal steroids to enhance the performance of professional baseball athletes. The investigation began in August 2002 and, over the following several years, produced evidence - including grand jury testimony - establishing probable cause to believe that at least 10 major league baseball players received illegal steroids from Balco.

Today we decide the government's appeals from the separate adverse orders of three different district courts: (1) an order by Judge Florence-Marie Cooper in the Central District of California, denying reconsideration of her earlier order requiring the government to return property seized from Comprehensive Drug Testing, Inc. in Long Beach, California ("CDT"),1 (2) an order by Judge James Mahan in the District of Nevada, requiring the government to return property seized from Quest Diagnostics, Inc. in Las Vegas, Nevada ("Quest"),2 and (3) an order by Judge Susan Illston in the Northern District of California, quashing the government's May 6, 2004, subpoenas to CDT and Quest that related to the grand jury sitting in San Francisco, California.


As part of its investigation into Balco, the government in November 2003 served a grand jury subpoena on Major League Baseball ("MLB"),3 seeking drug testing information for 11 players4 with connections to Balco. One month later, MLB responded that it had no such information.

The government then reasoned that because CDT5 and Quest6 had tested urine samples from MLB players during 2003, those entities - rather than MLB - had to possess the samples and testing records in question. Therefore, the government issued subpoenas both to CDT and to Quest, seeking drug testing information for all MLB players. The subpoenas were returnable on February 5, 2004, but the government extended that date to March 4, 2004, after CDT and Quest promised not to destroy or to alter any of the evidence requested. Despite protracted negotiations, CDT and Quest resisted producing any of the subpoenaed materials, explaining that they would fight production of even a single drug test all the way to the Supreme Court. Following further negotiations, the government, believing that a narrower subpoena might be effective, issued new subpoenas on March 3, 2004, seeking documents related only to eleven7 players with Balco connections. These new subpoenas were returnable on April 8, 2004. Two days before the new return date, the Major League Baseball Players' Association - the union representing athletes who play for Major League Baseball8 - informed the government that it intended to file a motion to quash the subpoenas. The following day, as promised, CDT and the Players Association filed such a motion in the Northern District of California before United States District Judge Jeffrey White.


After learning of the planned motion to quash, the government applied on April 7, 2004, for warrants to search CDT's Long Beach office and Quest's Las Vegas laboratory. The government expected to find testing evidence at both locations and knew that the information at CDT would be needed to obtain all relevant records from Quest, because Quest stored each testing record by code, not name, and CDT possessed the information identifying the code(s) that corresponded to each player in its testing program. Upon a showing of probable cause,9 Magistrate Judge Jeffrey Johnson in the Central District of California issued a search warrant for the CDT office,10 and Magistrate Judge Lawrence Leavitt in the District of Nevada issued a search warrant for the Quest laboratory.11 Affidavits submitted to support the warrants informed both magistrates that the information sought was already the subject of grand jury subpoenas and that a motion to quash was expected.12 Contrary to the arguments of the Players Association and CDT, the government did not premise its April search warrant affidavits on a claim that the evidence was in danger of being destroyed.13

The April 7 warrants authorized the seizure of drug testing records and specimens for ten named Balco-connected players, as well as "[a]ll manuals, pamphlets, booklets, contracts, agreements and any other materials detailing or explaining" CDT's or Quest's "administration of Major League Baseball's drug testing program."14 The warrants also authorized the search of computer equipment, computer storage devices, and 11Federal Rule of Criminal Procedure 41(b) authorizes the government to pursue search warrants in different districts. The rule gives a magistrate judge the authority "to issue a warrant to search for and seize a person or property located within the district," "to issue a warrant for a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed," or "in an investigation of domestic terrorism or international terrorism . . . [to] issue a warrant for a person or property within or outside that district." Fed. R. Crim. P. 41(b). - where an on site search would be impracticable - seizure of either a copy of all data or the computer equipment itself. "[L]aw enforcement personnel trained in searching and seizing computer data" (designated "computer personnel") were responsible for choosing the appropriate course of action to capture the electronic data sought. If seizure of all data or equipment was necessary, "appropriately trained personnel" would review the data, retaining the evidence authorized by the warrant and designating the remainder for return. On the morning of April 8, 2004, Special Agent Jeff Novitzky (the lead case agent) and eleven other federal agents - including Computer Investigative Specialist Agent Joseph Abboud - executed the search warrant for CDT's Long Beach office. Although CDT personnel were initially cooperative, one of CDT's directors - after speaking with counsel - informed Agent Novitzky that CDT would not assist federal officers in locating the evidence they were authorized to seize and that the agents should "do what they needed to do." When informed that agents might be forced to seize all computer equipment for up to sixty days, the director again contacted counsel, exclaiming that such a seizure would "shut[ ] the business down."

Throughout the morning and early afternoon, Agent Novitzky spoke several times with CDT's attorney, David Bancroft. Bancroft asked Agent Novitzky not to seize anything while he attempted to work out a beneficial solution with the United States Attorney's Office in San Francisco.

Later, Bancroft told the agent that CDT had only one hardcopy document eligible for seizure. Around noon, both Agent Novitzky and Assistant United States Attorney Jeff Nedrow spoke with Bancroft and CDT's directors via conference call.

Bancroft emphasized that any help CDT provided should not be construed to constitute consent and then informed Nedrow and Agent Novitzky that CDT had two computers on which agents would find information relevant to the search warrant.

During this conference call, Agent Novitzky learned that agents had discovered a hard-copy document with names and identifying numbers for all MLB players, including some of the ten named Balco players. Agent Novitzky faxed the document, which was not the "only document eligible for seizure" to which Bancroft had alluded, to Nedrow for preparation of another search warrant to seize specimen samples from Quest based on the identifying numbers. One of CDT's directors became visibly upset when she noticed the document being faxed. She left the premises, but when she returned, she opened a locked drawer and presented agents with a document that contained drug test results for the ten named Balco players - the document previously described as the only seizable hard-copy document on site.15

At 2:35 p.m., a CDT director finally identified a computer directory containing all of the computer files for CDT's sports drug testing programs. This directory, labeled "Tracey," contained numerous subdirectories and hundreds of files. Seeing this, Agent Abboud recommended copying the entire directory for off-site analysis, because of the time and intrusiveness involved in searching the voluminous directory on site.

The warrant had anticipated that such removal might be necessary, and provided:

If the computer equipment and storage devices cannot be searched on-site in a reasonable amount of time, then the computer personnel will determine whether it is practical to copy the data during the execution of the search in a reasonable amount of time without jeopardizing the ability to preserve the data.

The agents copied the directory and removed the copy for later review at government offices.16 The search of the CDT facility concluded shortly after 5 p.m., but before he left the premises, Agent Novitzky reviewed with CDT directors the evidence seized during the search. The documents seized included a 25-page master list of all MLB players tested during the 2003 season and a 34- page list of positive drug test results for eight of the ten named Balco players, intermingled with positive results for 26 other players.17 Upon returning to his office in San Jose, California, Agent Novitzky briefly reviewed the contents of the Tracey directory, identifying five subdirectories related to MLB. Within these directories, Agent Novitzky identified files authorized by magistrate judges for seizure, including the master file of positive drug test results.

During the time in which Agent Novitzky and others were searching CDT on April 8, 2004, another group of federal agents had executed simultaneously a separate search warrant at Quest's laboratory in the District of Nevada. However, these agents were unable to locate the specimens that the warrant authorized them to seize, because the search warrant in the District of Nevada listed the players by name, and the Quest specimens were identified only by number. Quest employees informed the searching agents in the District of Nevada that the records associating the players with their identifying numbers could be found in files stored by 16The warrant also provided for the circumstances in which "computer personnel determine it is not practical to perform an on-site search or make an on-site copy of the data within a reasonable amount of time," and then allowed "the computer equipment and storage devices [to] be seized and transported to an appropriate law enforcement laboratory for review." The agents did not make use of this procedure, however, because Agent Abboud determined that copying the data was possible.

CDT. Indeed, these records soon were discovered by agents at CDT and faxed to the agents at Quest.18 With this information, the agents in the District of Nevada applied for a third search warrant to seize the relevant items identified by number as well as by name. Judge Leavitt authorized this third warrant at 6 p.m. on April 8, 2004, and agents seized from Quest the then-identifiable Balco players' specimens later that same night.


On April 26, 2004, the Players Association filed motions under Fed. R. Crim. P. 41(g) (hereinafter "Rule 41(g)")19 seeking return of the property seized.20

Motion To Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

On August 19, 2004, Judge Mahan ruled from the bench. He granted the Rule 41(g) motion brought by the Players Association in the District of Nevada and ordered the government to return all specimens seized from Quest and all notes and memoranda compiled by agents who reviewed the evidence, other than those pertaining to the ten Balco players named in the original search warrant.22 He made findings - without conducting an evidentiary hearing - that "[t]he government callously disregarded the affected players' constitutional rights" and that the government unreasonably refused "to follow the procedures set forth in United States v. Tamura, 694 F.2d 591 (9th Cir. 1982)," with regard to the intermingled records seized in the Central District of California. Almost six weeks later, and again without conducting an evidentiary hearing, Judge Cooper rejected the government's suggestion that the documents were seizable under the warrant exception that applies to plain-view evidence of contraband,23 and granted the Players Association's Rule 41(g) motion in the Central District of California. The order, which also cited the government's failure to follow Tamura's procedures, mandated return to CDT of any evidence seized that was not connected to the ten players named in the warrant. Judge Cooper denied the government's motion for reconsideration of this order on February 9, 2005.

These orders are the subjects of two of the appeals consolidated here.24


The third appeal concerns grand jury subpoenas issued to Quest and CDT on May 6, 2004, which were to be returned by June 10, 2004. These subpoenas reached all specimens and records of positive steroid drug tests for more than 100 MLB players and were not confined to records pertaining to the ten Balco players named in the earlier subpoenas.25 The government also sought search warrants for this larger swath of evidence on the ground that the April 8 seizures did not provide all information needed for the investigation.26

Quest complied with the May 6 subpoena, providing the government with hundreds of pages of documents, but the government agreed to defer CDT's compliance pending resolution of the search warrant litigation. On August 31, 2004, however, the government revoked the indefinite deferral and instructed CDT to comply with the subpoena by September 14, 2004. The Players Association filed a motion to quash the subpoenas on September 13, 2004.


Before we review the orders granting the Rule 41(g) motions in the Central District of California and the District of Nevada, we must decide two jurisdictional issues: whether the Players Association has standing to challenge the search and seizure of evidence from Quest and whether the government timely appealed Judge Cooper's order to return the materials seized from CDT in the Central District of California.27

A The government contends that the Players Association lacks standing to file the Rule 41(g) motion, because it lacked access, control, and ownership over the records and specimens seized from Quest. Furthermore, it argues that the Players Association may not base its interest in the property (the urine specimens and test results) on the privacy interests of the individual players.28

[1] An association has standing to sue on behalf of its members when they would otherwise have independent standing to sue, the interests sought to be protected are germane to the organization's purpose, and the claim asserted does not require the participation of individual members in the lawsuit. Pennell v. City of San Jose, 485 U.S. 1, 7 n.3 (1988); see also Hunt v. Wash. Apple Adver. Comm'n, 432 U.S. 333, 343 (1977).

[2] We are satisfied that the Players Association satisfies each prong of this test. First, the Players Association represents all MLB players, each one of whom could certainly sue in his own right to seek return of his own drug testing records. Second, the interests sought to be protected - the players' privacy interests in their drug testing records - are related to the organization's sole purpose: to represent the interests of MLB players. Third, the Players Association sought only the return of the players' drug testing information and specimens; for this type of prospective relief, the individual players need not be parties to the action. See Warth v. Seldin, 422 U.S. 490, 515 (1975) (holding that an association lacked standing where it sought damages rather than "a declaration, injunction, or some other form of prospective relief").

[3] We therefore conclude that the Players Association has standing to assert the Fourth Amendment rights of its members sufficient to file Rule 41(g) motions seeking return of seized property in which their members hold privacy interests.


[4] The Players Association and CDT contend that the government failed to appeal in a timely manner Judge Cooper's order for the return of property. In order to be timely when the United States, its officer, or its agency is a party, a notice of appeal must be filed "within 60 days after the judgment or order appealed from [was] entered." Fed. R. App. P. 4(a)(1)(B).

Judge Cooper's order granting the motion for a return of property was filed on October 1, 2004. On November 19, 2004, 17 days after receiving notice of the order, the government filed a "Motion for Reconsideration and Modification of Court's October 1, 2004 Order Granting Return of Property," asking the district court to modify the factual descriptions of the government's conduct. Judge Cooper reviewed this motion on the merits under Central District of California Local Rule 7-18 (governing "Motion[s] for Reconsideration").29 Concluding that "the Government identifie[d] no material facts that the Court failed to consider," she denied the motion on February 9, 2005. On March 9, 2005, the government filed a notice of appeal, challenging both the original Rule 41(g) order and the denial of the motion for reconsideration. [5] We have jurisdiction to review the denial of the motion for reconsideration, because the notice of appeal was filed within 60 days of that order. See Fed. R. App. P. 4(a)(1)(B).

However, because the notice of appeal was filed more than five months after the order granting the Rule 41(g) motion, we can review that underlying order only if the motion for reconsideration tolled the 60-day period to file an appeal. [6] Federal Rule of Appellate Procedure 4(a) sets forth specific rules for calculating the time to file an appeal, and permits tolling for certain motions for reconsideration made under the Federal Rules. See Fed. R. App. P. 4(a)(4)(iv), (vi).

A motion for reconsideration may be eligible for tolling even if it was not filed or considered under the Federal Rules, as long as the motion could have been filed as a motion "to alter or amend the judgment under Rule 59" or a motion "for relief under Rule 60 if the motion is filed no later than 10 days after the judgment is entered." See Fed. R. App. P. 4(a)(4)(iv), (vi); Shapiro v. Paradise Valley Unified Sch. Dist., 374 F.3d 857, 863 (9th Cir. 2004) (holding that tolling was appropriate under Fed. R. App. P. 4(a), because a motion for partial reconsideration that "[did] not state under which rule the motion was brought" could be construed under Rule 59(e)); see also United States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992) ("A motion, however labelled [sic], served within ten days of the entry of an order that could have been brought under Rule 59(e) tolls the time for filing a notice of appeal.").30

The Players Association and CDT argue that the government's motion cannot be treated as a motion for reconsideration for tolling purposes, because it was merely "styled as one for reconsideration," and only "asked the court to water down its findings" without claiming that "the Court failed to evaluate the merits." We disagree. The government's motion asked Judge Cooper to "reconsider and modify several aspects of [her] order which inaccurately characterize[d] the government's actions," while expressly clarifying that it was "not asking for a substantive reconsideration of the Court's ultimate return order." The motion proposed several specific deletions of language in the opinion. These requests constitute a motion for reconsideration and may be treated under the Federal Rules governing such motions. See Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001) ("[A] ‘motion for reconsideration' is treated as a motion to alter or amend judgment under Federal Rule of Civil Procedure Rule 59(e) if it is filed within ten days of entry of judgment . . . . Otherwise, it is treated as a Rule 60(b) motion for relief from a judgment or order." (citing Nutricology, 982 F.2d at 397)).

[7] In this case, whether the motion could have been filed under Rule 59(e) or could have been filed under Rule 60(b) makes no difference. Either way, the government's motion fails to satisfy the time requirements for tolling under Fed. R. App. P. 4(a). To be eligible for tolling, the motion had to have been filed by October 11, 2005 - ten days after the order granting the Rule 41(g) motion. See Fed. R. App. P. 4(a)(4). The motion was filed forty-nine days after the order, exceeding the time period by thirty-nine days.

The government seeks an alternative avenue to obtain tolling by arguing that it did not receive notice of the order until November 2, 2004, and therefore that the time limit should not be calculated from the date of the entry of judgment. We agree that delays in notice may offer a basis for filing after the normal deadline, but the Federal Rules expressly state that parties must request an extension of time to file an appeal in such circumstances. See Fed. R. App. P. 4(a)(6) (permitting a district court to reopen the time to file an appeal where a party did not receive notice);31 see also Fed. R. App. P. 4(a)(5) (allowing a district court to extend the time to file an appeal upon a showing of excusable neglect or good cause).32 The government never sought an extension of its time to file a notice of appeal. Instead, in a footnote to its motion for reconsideration, the government made the strange request for "leave to file this motion for reconsideration" at a point "outside of the normal time frame for the filing such motions."

Yet the motion was timely under the local rule on motions for reconsideration, see C. D. Cal. Local Rule 7-18, as well as under the applicable federal rule, see Fed. R. Crim. P. 60(b). Neither the Players Association nor the district court responded to the government's odd request; they simply focused on the merits of the motion for reconsideration. Although we are not certain why the government requested special cognizance of the motion, we imagine that it may have feared that the district court otherwise would dismiss the motion as untimely under Rule 59(e). In any case, the government's request did not constitute a motion for an extension of time to file an appeal, because the narrow and precise request asked the court to review the motion for reconsideration without any mention of a future filing, and never invoked any local or federal rule allowing time to extend the time to file an appeal.33

The government seeks to evade the conclusion that its notice of appeal was too late by arguing that the Players Association waived the right to raise a timeliness objection by first raising such claim in its petition for rehearing. Basing its argument on the Supreme Court's decision in Eberhart v. United States, 546 U.S. 12 (2005), and on our decision in United States v. Sadler, 480 F.3d 932 (9th Cir. 2007), the government argues that the relevant tolling provisions of Fed. R. App. P. 4(a) are nonjurisdictional and that the Players Association forfeited any argument that they were not satisfied.

In Eberhart, the Supreme Court addressed the question of what time limitations are jurisdictional. Acknowledging that its prior decision in United States v. Robinson, 361 U.S. 220 (1960), "ha[d] created some confusion because of its observation that ‘courts have uniformly held that the taking of an appeal within the prescribed time is mandatory and jurisdictional,' " the Court distinguished "nonjurisdictional claimprocessing rules" from rules that "deprive federal courts of subject-matter jurisdiction." 546 U.S. at 16. The Court explained that only the former could be forfeited. See id. at 19 (holding that the "Court of Appeals should . . . have proceeded to the merits" of a Fed. R. Crim. P. 33 motion based on a court-imposed rule, because "where the Government failed to raise a defense of untimeliness until after the District Court had reached the merits, it forfeited that defense").

[8] Whether a federal rule establishing a time limitation imposes a jurisdictional rule depends on whether the rule derives from a statute. See Kontrick v. Ryan, 540 U.S. 443, 452 (2004) (holding that "statutory provisions . . . contain[- ing] built-in time constraints" create jurisdictional limits but that jurisdiction is not affected by "Court prescribed ‘rules of practice and procedure' " (citation omitted)); Sadler, 480 F.3d at 937 ("Rules provisions governing timeliness that do not implement congressionally mandated ‘built-in time constraints' are therefore properly considered nonjurisdictional limitations, subject to forfeiture." (quoting Kontrick, 540 U.S. at 453).

In Sadler, we applied this distinction to Fed. R. App. P. 4. We concluded that "the timeliness dictates of Rule 4(b) are forfeitable, because Rule 4(b) is a nonjurisdictional claimprocessing rule." 480 F.3d at 940 (emphasis omitted). We contrasted the mandates of Fed. R. App. P. 4(a): "Congress has specifically limited our jurisdiction to hear civil appeals at 28 U.S.C. § 2107(a), which codifies the same time constraints on the filing of civil appeals (but only civil appeals) that exist in Rule 4(a)." Id. at 937 (footnote omitted).

[9] The government seeks to benefit from the distinction between jurisdictional and forfeitable claims under Fed. R. App. P. 4 by arguing that the Rule 41(g) motion should be treated under the criminal rule, Fed. R. App. P. 4(b), because the motion sought a return of property used in a criminal investigation.

41(g) motion is "treated as [a] civil equitable proceeding[ ]." Ramsden v. United States, 2 F.3d 322, 324 (9th Cir. 1993). The proper rule for considering civil appeals from the disposition of a Rule 41(g) motion is thus Fed. R. App. P. 4(a).

Our dicta in Sadler states that the timing requirements of Fed. R. App. P. 4(a) are jurisdictional and that claims under that rule are not forfeited. See 480 F.3d at 937. The Supreme Court recently addressed this issue. In Bowles v. Russell, 127 S.Ct. 2360 (2007), the Court ruled that Fed. R. App. P. 4(a)(6), which allows a court to grant a 14-day extension to file an appeal, established a jurisdictional requirement. Id. at 2366. Explaining that "Congress specifically limited the amount of time by which district courts can extend the noticeof- appeal period in § 2107(c), that limitation is more than a simple ‘claim-processing rule' " and therefore the petitioner could not rely on it "to excuse his lack of compliance with the statute's time limitations." Id.

[10] Bowles does not specifically discuss Fed. R. App. P. 4(a)(4), the tolling provision relevant here. The government argues that "Rule 4(a) does not incorporate a statutory time limit in its provision of tolling for Rule 59(e) or Rule 60 motions" and therefore that any failure to comply with the rule should be immunized against belated attack. However, although Fed. R. App. P. 4(a)(4) does not contain language from 28 U.S.C. § 2107, which lacks a tolling provision, the Supreme Court's decision in Bowles suggests that the same characterization applies: "Today we make clear that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement." Id.

[11] And even if Bowles did not settle the matter with respect to Fed. R. App. P. 4(a)(4),35 we could not consider the 35An argument can be made on this score, as the advisory committee's note to Fed. R. App. P. 4(a)(4) reveals that this provision was created by the Court and amended in light of developing caselaw. While the advisory underlying order granting the Rule 41(g) motion. In order to accept the government's argument, we would have to grant the jurisdictional benefit of tolling while denying the tolling rule's jurisdictional significance. We cannot defeat logic or text in this manner. If Fed. R. App. P. 4(a)(4) is jurisdictional, the government's motion does not qualify for tolling because it was filed outside the time frame specified in that rule. See Fed. R. App. P. 4(a)(4)(iv), (vi) (permitting tolling for such motions only if they are filed within 10 days of entry of judgment).

Bowles, Slip Op. at 8. Under either interpretation of Fed. R. App. P. 4(a)(4), the government's notice of appeal was untimely as to Judge Cooper's underlying order granting the Rule 41(g) motion and must be dismissed for lack of jurisdiction.


Having thus disposed of the two preliminary matters of standing and jurisdiction, we turn to the merits of Judge Cooper's order denying the motion for reconsideration in the Central District of California. We review such orders for an abuse of discretion. Smith v. Pac. Prop. & Dev. Corp., 358 F.3d 1097, 1100 (9th Cir. 2004) ("We review the denial of a motion for reconsideration for abuse of discretion." (citation omitted)); see also United States v. Washington, 98 F.3d 1159, 1163 (9th Cir. 1996) ("This court reviews a district court's denial of a Rule 60(b) motion for an abuse of discretion.").

If a district court premises such denial upon a legal determination, the legal issue must be reviewed de novo. Smith, 358 F.3d at 1100 (citations omitted) ("Whether such a denial rests on an inaccurate view of the law and is therefore an abuse of discretion requires us to review the underlying legal determination de novo."); see also Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam) ("The district court's interpretation of the underlying legal principles, however, is subject to de novo review and a district court abuses its discretion when it makes an error of law.").

The government confined its motion for reconsideration in this case to factual matters: "While the government respectfully disagrees with the Court's conclusion that movants are entitled to a return of property as a matter of law, the govern- ment emphasizes that it does not herein request reconsideration of the Court's core order requiring the return of the items seized . . . ." Instead, the motion asked the court only to "reconsider and modify several aspects of this order which inaccurately characterize the government's conduct in this case." Judge Cooper rejected these proposed modifications. She assured the government that she "did not fail to consider the explicit language of the warrant." She characterized her conclusion that "the agent[s] did not have a lawful right of access to the computer records" as a legal determination based on Tamura, 694 F.2d 591, not a factual one - thereby placing it outside the scope of the government's motion, which by its terms was confined to matters of fact. Confirming that she had taken into account the "lengthy history of stalling and delay by [the Players Association and CDT] in connection with the grand jury subpoenas served prior to the government's execution of the search warrant," Judge Cooper nevertheless reiterated her view that the "simultaneous use of warrants and subpoenas was inappropriate given all the circumstances." Finding "no other material facts the Court allegedly failed to consider," she stated that "mere disagreement with the Court's interpretation of the evidence and its opinions about what does and does not constitute acceptable conduct . . . does not justify reconsideration" and denied the motion.

[12] The question then becomes: what issues fall within the scope of our appellate review? We recognize that "[a] district court may abuse its discretion if it does not apply the correct law," Washington, 98 F.3d at 1163, and that the district court's analysis and application of Tamura in its original order may well have been in error. See infra Section IV.B. However, Judge Cooper's denial of the motion for reconsideration did not "rest[ ] on an inaccurate view of the law." Washington, 98 F.3d at 1163. Although Judge Cooper referenced Tamura and the legal conclusions in her underlying order, she did not premise her denial of the government's motion for reconsideration upon them. She stated clearly that her denial was based upon her review of the record and the factual arguments presented in the motion. While we might not have reached the same findings of fact, "[o]ur review is limited and deferential." Sw. Voter Registration Educ. Project, 344 F.3d at 918. We are satisfied that Judge Cooper duly assessed all relevant facts cited in the motion. We cannot discern in her refusal to change the language of the order an abuse of discretion and thus must affirm the denial of the government's motion for reconsideration.39


We turn next to Judge Mahan's order granting the Players Association's Rule 41(g) motion to return property seized from Quest in the District of Nevada.

It is possible that the legal analysis in the order granting Rule 41(g) motion may conflict with our authoritative interpretation of Tamura, as explained in Section IV of this opinion with regard to the appeal from the District of Nevada. But we are powerless to reconcile any such discrepancies, for the government's notice of appeal grants us jurisdiction only to review the denial of the motion for reconsideration.


[13] Before considering the merits of that order, we must first satisfy ourselves that the district court had the necessary equitable jurisdiction to consider the motion.40 A district court may exercise equitable jurisdiction to hear such a motion only after analyzing the four factors set out in Ramsden, 2 F.3d 322. Specifically, the court must consider 1) whether the Government displayed a callous disregard for the constitutional rights of the movant; 2) whether the movant has an individual interest in and need for the property he wants returned; 3) whether the movant would be irreparably injured by denying return of the property; and 4) whether the movant has an adequate remedy at law for the redress of his grievance.

Id. at 325. Without explication, Judge Mahan stated in his order that each of the four factors weighed in favor of equitable jurisdiction. Because the government now concedes that the parties have no adequate remedy at law, we only need to discuss the first three Ramsden factors.

In its memorandum supporting the Rule 41(g) motion in the District of Nevada, the Players Association argued that the seizure of urine specimens and test results constituted "callous disregard" of the MLB players' privacy interests:

Given the highly sensitive and confidential nature of drug testing samples and records and the information contained therein, and given the exacting measures undertaken by the parties to the [testing agreement] to prevent any disclosure of the players' test results to anyone, including MLB, the MLBPA, and the players themselves, any seizure of these materials, absent extraordinary justification, constitutes a "callous disregard" for the players' privacy interests.

Were we to accept this reasoning, any seizure of confidential records would reveal callous disregard for privacy rights, even if such seizure were expressly authorized by a lawful search warrant. Not only did the government establish probable cause, but the agents executed the search warrant with due respect for the interests of the MLB players and Quest, the third party searched. The government seized items clearly delineated by the warrant and accepted the assistance of Quest personnel to avoid taking unrelated items, thus displaying attentiveness both to the warrant's scope and avoiding unnecessary interference with Quest's business operations. Quest cooperated in the search and declined to join the Players Association's subsequent Rule 41(g) motion. We conclude that the first prong of the Ramsden analysis weighs against invocation of the district court's equitable jurisdiction over the Rule 41(g) motions.


As to the second of the four Ramsden factors (the movants' individual interests in the evidence seized), the Players Association argues that its interests in the property mirror those of its members. We agree that its members possess strong pri vacy interests in both their drug test results and the actual specimens. See Roe v. Sherry, 91 F.3d 1270, 1274 (9th Cir. 1996) (recognizing an individual's "strong interest in protecting the confidentiality of [one's] HIV status"). Because the Players Association exists to represent such interests, Judge Mahan properly found that this factor weighed in favor of equitable jurisdiction.


Judge Mahan also found satisfied the third Ramsden factor (likelihood of irreparable injury if the evidence were not returned). As the Players Association notes, the public release of positive drug testing evidence could irreparably damage the careers of the affected players, even if the positive results were not actually caused by illegal steroid use. Based on this danger, we agree that the third factor also weighs in favor of equitable jurisdiction.


[14] Although we conclude that the district court erred in finding callous disregard of Fourth Amendment rights, the three other equitable jurisdiction factors weigh in favor of hearing the motions by the Players Association. See Ramsden, 2 F.3d at 326 (holding that where three of the four factors favored an exercise of equitable jurisdiction, the court had power to hear a Rule 41(g) motion). As such, we cannot say that Judge Mahan's initial choice to hear the motion constituted an abuse of discretion.

B We turn now to the merits of Judge Mahan's substantive ruling requiring the return of property seized in the District of Nevada that did not relate solely to the ten players named in the April 7 search warrants.


[15] With respect to property taken during the execution of search warrants, Rule 41(g) provides that a person "aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return." When such a motion is granted, the property in question must be returned to the moving party, but a court "may impose reasonable conditions to protect access to the property and its use in later proceedings." Id. Although the rule itself does not set a standard for determining when property should be returned to a moving party, an advisory committee's note explains that "reasonableness under all of the circumstances must be the test." Fed. R. Crim. P. 41(g), advisory committee's note.42 The Players Association argues that the seizure of property from Quest in the District of Nevada was unreasonable. The Players Association offers no argument that the search of Quest exceeded the terms of the search warrant or was executed in an unconstitutional manner. Instead, the Players Association argues that the search warrant lacked a legal foundation because the government's affidavits used intermingled files seized at CDT to name individuals other than the ten players previously identified. The Players Association contends that these files were illegally seized and that "the government . . . [is forbidden] from disseminating or using the fruits of an illegal search." Under the doctrine of the "fruit of the poisonous tree," evidence may not be used if " ‘granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' " Wong Sun v. United States, 371 U.S. 471, 488 (1963) (citation omitted).

The district court agreed with this fruit-of-the-poisonoustree reasoning, expressly premising its order to return property seized in the District of Nevada on the illegality of the seizures in the Central District of California: Under the particular circumstances of this case, it was unreasonable for the Government to refuse to follow the procedures set forth in United States v. Tamura, 694 F.2d 591 (9th Cir. 1982), upon learning that drug-testing records for the ten athletes named in the original April 8 warrants executed at Quest and at Comprehensive Drug Testing, Inc. ("CDT") were intermingled with records for other athletes not named in those warrants.


[16] We review the district court's legal analysis de novo. Mendoza-Ortiz, 262 F.3d at 885. Like Judge Mahan, we look to the seizure of intermingled data in the Central District of California in order to determine whether that information provided a valid foundation for the warrants in the District of Nevada.43 See United States v. Bishop, 264 F.3d 919, 924 (9th Cir. 2001) ("Once the district court determined that the search warrant included illegally obtained information, it properly purged the affidavit of the offending facts and examined whether the remaining facts still afforded a substantial basis for concluding that the search warrant was supported by probable cause.").

This court has addressed previously whether the government may seize units containing information authorized for seizure intermingled with information not described in the search warrant. In United States v. Beusch, 596 F.2d 871 (9th Cir. 1979), we dealt with a motion to suppress evidence consisting of hard-copy ledgers containing items covered by the search warrant intermingled with items not covered by the search warrant. Id. at 876-77. We concluded that no Fourth Amendment violation occurred when agents seized "single files and single ledgers, i.e., single items which, though theoretically separable, in fact constitute one volume or file folder." Id. at 877. We constrained our ruling by stating that "the reasons we have given for allowing [such] seizure may not apply to sets of ledgers or files, but because that is not the case here, we find it unnecessary to discuss it further." Id. (emphasis added).

[17] Three years later, in Tamura, 694 F.2d 591, we considered whether the government could seize a set of hard-copy files including target data as well as information not specified in the search warrant. In that case, officers executed a search warrant for three specified categories of records stored at a Los Angeles office. Id. at 594. Agents seized - without any limiting effort - files that were not specified in the search warrant. Id. at 595. We condemned such "wholesale seizure for later detailed examination of records not described in a warrant." Id. (emphasis omitted). Holding that the Fourth Amendment barred the conversion of a specific warrant into a general one, we described two methods by which the government could avoid such constitutional violations.

First, if the government anticipated that on-site segregation of target documents would not be feasible in a reasonable amount of time, it can seek a preordained warrant protocol allowing the seizure of such intermingled documents. This approach would ensure proper judicial oversight of any seizures.

If the need for transporting the documents is known to the officers prior to the search, they may apply for specific authorization for large-scale removal of material, which should be granted by the magistrate issuing the warrant only where on-site sorting is infeasible and no other practical alternative exists.

See United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir. 1982). The essential safeguard required is that wholesale removal must be monitored by the judgment of a neutral, detached magistrate.

Tamura, 694 F.2d at 596. Specific authorization to make such seizures depends on detailed information in the government's search warrant affidavits, which should describe "the relevant technological issues," Managing Discovery, supra note 13, at 21, and the feasibility of parsing the anticipated storage media. With such information, a magistrate can set forth guidelines that ensure the government does not seize intermingled data without judicial oversight. If a warrant includes such protocol, and the government abides by it, post-search review is not necessary.44

Second, if the government obtained a search warrant without a preordained protocol for removing intermingled target and non-target data, but encountered an unanticipated need to seize units containing intermingled data, agents could seize that unit and seal it pending post-search review. Only if authorized by the "judgment of a neutral, detached magistrate" could it keep the seized items. Like the use of a presearch protocol, this second method of post-search authorization would ensure judicial oversight in cases where on-site segregation of intermingled data cannot feasibly occur.

[18] In the comparatively rare instances where documents are so intermingled that they cannot feasibly be sorted on site, we suggest that the Government and law enforcement officials generally can avoid violating fourth amendment rights by sealing and holding the documents pending approval by a magistrate of a further search, in accordance with the procedures set forth in the American Law Institute's Model Code of Pre-Arraignment Procedure.45

Tamura, 694 F.2d at 595-96 (footnote omitted). Recently, we applied Tamura to uphold seizures of intermingled documents in the computer context. In United States v. Adjani, 452 F.3d 1140 (9th Cir. 2006), investigating agents obtained a search warrant to seize evidence of the defendant Adjani's extortion activities. Id. at 1142. The search warrant contained a detailed protocol for the seizure of intermingled evidence. Id. at 1149 ("The Adjani warrant ‘describe[d] in great[ ] detail the items one commonly expects to find on premises used for the criminal activities in question . . . .' " (alterations in original)). In executing the warrant, agents seized Adjani's computer as well as the computer of a woman living with him, who was not identified as a suspect in the warrant. Id. The computers were subsequently searched at an FBI computer lab, and evidence they contained was used to charge both Adjani and his housemate. In a motion to suppress the evidence, the two defendants argued that the woman's computer was not seizable under the search warrant, and if it were, that the search warrant was overbroad. We rejected both claims, citing the difficulty of segregating electronic data:

We understand the heightened specificity concerns in the computer context, given the vast amount of data they can store. As the defendants urge, the warrant arguably might have provided for a "less invasive search . . . ." Avoiding that kind of specificity and limitation was not unreasonable under the circumstances here, however. To require such a pinpointed computer search, restricting the search to an email program or to specific search terms, would likely have failed to cast a sufficiently wide net to capture the evidence sought. Cf. [United States v.] Ross, 456 U.S. [798,] 821 [1982] ("When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the UNITED STATES v. COMPREHENSIVE DRUG TESTING 1117 case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.").

Id. at 1149-50 (parallel citation omitted). Reiterating what we set forth in Tamura, we approvingly noted that the warrant incorporated a specific protocol:

The supporting affidavit attached to the warrant set forth a detailed computer search protocol, including instructions as to when the computers should be searched on-site rather than taken off-site and procedures for screening the data to determine what data could be searched and seized under the terms of the warrant. See also U.S. Dep't of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations 43, 69 (July 2002) (detailing what FBI agents should include in warrants when they contemplate the need to search computers). Such specificity increases our confidence that the magistrate judge was well aware of what he was authorizing and that the agents knew the bounds of their authority in executing the search. Cf. [United States v.] Hay, 231 F.3d [630,] 636 [(9th Cir. 2000)] (considering favorably an affidavit providing "that searches and seizures of evidence from computers requires agents to seize all parts of a computer system to be processed later by a qualified computer expert.").

Id. at 1149 n.7. "The contours of [the Fourth Amendment's] protections in the context of computer searches pose difficult questions," we explained. Id. at 1152. "Computers are simultaneously file cabinets (with millions of files) and locked desk drawers; they can be repositories of innocent and deeply personal information, but also of evidence of crimes. . . . As society grows ever more reliant on computers . . . courts will be called upon to analyze novel legal issues and develop new rules within our well established Fourth Amendment jurisprudence." Id. Attuned to the needs of law enforcement as well as privacy, we upheld the validity of the search warrant and rejected the argument that items of evidence fell "outside the scope of the warrant because they implicated [a person not named in the warrant] in the crime and supported a charge of conspiracy to commit extortion [against her]." Id. at 1151. In 2006, we confirmed the validity of this analysis in United States v. Hill, 459 F.3d 966 (9th Cir.), where we addressed a motion to suppress evidence. The defendant argued that the warrant was overbroad because it allowed the seizure of computer and storage media related to child pornography without requiring the government to conduct an onsite search and without providing a protocol. Id. at 973-78.

Citing Tamura and Adjani, we explained that on-site review was not always required. Id. at 975-76. We emphasized the "serious risk that the police might damage the storage medium or compromise the integrity of the evidence by attempting to access the data at the scene" and the disruption caused by attempts to segregate complex electronic data onsite: [T]he process of searching the files at the scene can take a long time. To be certain that the medium in question does not contain any seizable material, the officers would have to examine every one of what may be thousands of files on a disk - a process that could take many hours and perhaps days. Taking that much time to conduct the search would not only impose a significant and unjustified burden on police resources, it would also make the search more intrusive. . . . If the search took hours or days, the intrusion would continue for that entire period, compromising the Fourth Amendment value of mak ing police searches as brief and non-intrusive as possible. Id. at 974-75. In light of these concerns, we concluded that it was "reasonable under the Fourth Amendment for the police to take all of [the defendant's] computer storage media from his home (they did not find his computer) so they could conduct their search offsite in a police laboratory, rather than carrying out the search onsite and taking only whatever evidence of [targeted material] they might find." Id. at 968. "[T]he warrant was not fatally defective in failing to require an onsite search and isolation of child pornography before removing storage media wholesale." Id. at 975.

[19] We then addressed whether the warrant was invalid because it lacked a specific protocol for seizures of electronic data. Although we made clear that a specific protocol was not mandatory, we stated that a "warrant[ ] authorizing blanket removal of all computer storage media for later examination," must be premised upon an "affidavit giving a reasonable explanation . . . why a wholesale seizure is necessary." Id. at 976 (citing Tamura, 694 F.2d at 595). "A warrant describing a category of items is not invalid if a more specific description is impossible," id. at 973, as long as the affidavit explains why "the officers could not reasonably describe the objects of their search with more specificity," id. at 976.

The agents in Hill offered neither a detailed description of the items to be seized nor any explanation of why a specific description was impossible. "Accordingly, we h[e]ld that the warrant here was overbroad in authorizing a blanket seizure in the absence of an explanatory supporting affidavit, which would have documented the informed endorsement of the neutral magistrate." Id. at 976-77 (citing Tamura, 694 F.2d 596). At the same time, we held that "the search here was supported by probable cause and, notwithstanding the shortcomings of the search warrant affidavit, the manner of its execution d[id] not mandate suppression of the fruits of that search." Id. at 979 (emphasis added).

3 [20] We now apply these precedents to determine whether the seizures at CDT were unlawful. The problems of intrusiveness that we recognized in Hill are all the more apparent here because the search was conducted on the premises of a third party business. In this case, the government obtained advance authorization to seize intermingled documents based upon a search warrant protocol that had been carefully outlined and supported. The government's affidavits were premised on the advice of computer specialists, who anticipated that certain intermingled evidence might be difficult to separate on-site:

Upon searching the premises, law enforcement personnel trained in searching and seizing computer data (the "computer personnel") will make an initial review of any computer equipment and storage devices to determine whether these items can be searched on-site in a reasonable amount of time and without jeopardizing the ability to preserve the data.

. . .

If the computer personnel determine that it is not practical to perform an on-site search or make an onsite copy of the data within a reasonable amount of time, then the computer equipment and storage devices will be seized and transported to an appropriate law enforcement laboratory for review. As we explained in Hill, the affidavits did not require prescience but they must contain a candid recitation of the available information.

Without such individualized justification being presented to the magistrate, we cannot be sure that the judge was aware of the officers' intent and the technological limitations meriting the indiscriminate seizure - and thus was intelligently able to exercise the court's oversight function. An explanatory statement in the affidavit also assures us that the officers could not reasonably describe the objects of their search with more specificity.

459 F.3d at 976. In this case, unlike in Hill, the government submitted detailed affidavits describing the anticipated difficulties of sorting computer data on-site. The affidavits proposed a protocol to guide and to limit the seizures of intermingled evidence, which Magistrate Judge Johnson approved.

Furthermore, the record reveals that the government complied with the protocol in the warrant. Agent Abboud, a computer analyst, determined that on-site review would not be feasible in a reasonable amount of time. The agents then copied several intermingled documents, including the Tracey directory. They did not seize the actual computer, although the search warrant authorized full seizure of the hardware if computer analysts determined that neither on-site searching nor copying were feasible. The government thereby enabled CDT to continue its business operations.

Although the Players Association contends that the government behaved unreasonably by copying the entire Tracey directory, an analysis of the difficulty of segregating intermingled electronic data reveals the opposite. The Federal Judicial Center recently explained:

[S]ome computer-based transactions do not result in a conventional document, but instead are represented in integrated databases. Even less-complex ESI [electronically stored information] may be incomprehensible and unusable when separated from the system that created it. For example, a spreadsheet produced in portable document format (PDF) may be useless because embedded information, such as computational formulas, cannot be seen or discerned.

Finally, deleting an electronic document does not get rid of it, as shredding a paper document would. An electronic document may be recovered from the hard drive, to the extent it has not been overwritten . . . . These differences between ESI and conventional information have implications for discovery. For example, the dynamic nature of ESI makes it vital that a data producer institute "litigation holds" to preserve information that may be discoverable, often even before the lawsuit is filed. Moreover, the volume and multiple sources of ESI may lead to disputes about the scope of discovery and may make review to identify and segregate privileged information more difficult . . . .

Managing Discovery, supra note 13, at 3-4.46 At the risk of losing data, the government ensured that CDT could continue its business activities, thus evidencing the reasonableness and restraint conspicuously absent in the "wholesale seizure" conducted by the agents in Tamura.47

Although the seizure of intermingled evidence was permitted under the warrant protocol, the Players Association argues that the government violated the search warrant's protocol by allowing Agent Novitzky to open and to view the contents of the Tracey directory, rather than leaving Agent Abboud to search alone. Under this view, only Agent Abboud was permitted to open and to view CDT computer data on-site. However, the plain language of the search warrant did not exclude the assistance of other law enforcement officers - especially for tasks involving non-digital work (such as seeking cooperation from persons on site). The warrant only required that computer personnel be the ones to determine whether on-site segregation of target data is feasible. The sort of assistance provided by Agent Novitzky, a non-specialized law enforcement officer under the guidance of Agent Abboud, was permissible under the search warrant and reasonable under the Fourth Amendment.

The dissent criticizes the government's decision to "copy the entire directory," pursuant to Agent Abboud's recommendation, rather than to "copy[ ] only the subdirectories that pertained to Major League Baseball" and suggests that the government should have trusted CDT to point out the relevant files. Dissent at 1143. The dissent explains that this approach would have allowed the government to select the relevant files on-site: "Dr. Jean Joseph of CDT later stated in an affidavit that the directory was easily searched by key word and would have provided the test information about the ten players in a short period of time." Id.

[21] We disagree. "The government should not be required to trust the suspect's self-labeling when executing a warrant." Adjani, 452 F.3d at 1150. Agents had no duty to rely on CDT personnel to point out the files seizable under the warrant. Like most searched parties, CDT had an incentive to avoid giving over documents of which the government might be unaware and to read the search warrant as narrowly as possible.

Moreover, the government had no reason to confine its search to "key words" such as the names of the baseball players. "Computer files are easy to disguise or rename, and were we to limit the warrant to such a specific search protocol, much evidence could escape discovery simply because of [the defendants'] labeling of the files." Id. Such a limited search could easily have overlooked documents crucial to the investigation, such as the specimens at Quest, which were identified only by number. See supra pp. 1086-90.

[22] We do not discern a violation of the Fourth Amendment's requirements simply because the agents determined, upon the review and recommendation of a computer specialist, that certain intermingled files could not be feasibly sorted on-site.48 As we explained in Tamura, and reiterated in Adjani and Hill, the seizure of electronic evidence can entail complex sifting efforts. By obtaining from a neutral magistrate permission to seize intermingled documents under a specific protocol, the government respected privacy interests while pursuing the law enforcement. The agents' ultimate decision to remove relevant data for off-site review stemmed not from disregard of privacy rights, but from sensitivity to the ongoing disruption caused by the search to CDT - an innocent third party in the underlying investigation.

4 [23] Our determination that the search and seizures at CDT were valid provides a necessary component of our legal analysis of Judge Mahan's order granting the Rule 41(g) motion in the District of Nevada. Judge Mahan premised his order on the legal conclusion that the government unlawfully seized intermingled data from CDT and could not use that data to support an expanded search warrant in the District of Nevada. Our de novo legal analysis shows that Judge Mahan misinterpreted Tamura. A lawful search does not produce poisonous fruit. Because the CDT search was lawful, the information seized in that search provided a legitimate basis for expanded warrants in the District of Nevada. As we explained in Adjani: "There is no rule . . . that evidence turned up while officers are rightfully searching a location under a properly issued warrant must be excluded simply because the evidence found may support charges for a related crime (or against a suspect) not expressly contemplated in the warrant." 452 F.3d 1151; cf. Beusch, 596 F.2d at 877 ("[A]s long as an item appears, at the time of the search, to contain evidence reasonably related to the purposes of the search, there is no reason - absent some other Fourth Amendment violation - to suppress it." (emphasis added)); Tamura, 694 F.2d at 597 (noting that although the agents unambiguously had flouted the limits of the search warrant "we cannot say, although we find it a close case, that the officers so abused the warrant's authority that the otherwise valid warrant was transformed into a general one, thereby requiring all fruits to be suppressed").

Furthermore, an order to return property under Rule 41(g) is inappropriate where "the government's need for the property as evidence continues." United States v. Fitzen, 80 F.3d 387, 388 (9th Cir. 1996) (internal quotation marks omitted); United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993) (same). "If the United States has a need for the property in an investigation or prosecution, its retention of the property generally is reasonable." Fed. R. Crim. P. 41(g), advisory committee's note. It is when the government no longer needs the property as evidence in an investigation that a presumption in favor of return arises. Fitzen, 80 F.3d at 388. [24] A return of property should follow only a particularly egregious violation: "The issue is whether the Government's conduct was sufficiently reprehensible in this case to warrant this sanction." Ramsden, 2 F.3d at 327. In Ramsden, we refused to impose this extreme sanction on police who had time to obtain a warrant but made no effort to do so and "simply chose not to comply with [their] obligations under the Fourth Amendment." Id. at 325, 327. The government's behavior in this case was reasonable and fell far short of the egregious and unchecked intrusions that might justify a return of property under Rule 41(g).49

[25] The government's seizures were neither unreasonable nor exceeded the four corners of the warrants. Our technologically advancing world combines in novel forms the kind of data that in a previous age might have been segregated. Parties are not immunized from law enforcement simply because they choose to store data in complex or integrated formats. We conclude that the district court abused its discretion by granting the Rule 41(g) motion based upon its contrary, and erroneous, view of the law.50

V We next consider the government's appeal of Judge Illston's order quashing the May 6 subpoenas, which sought from CDT and Quest the drug testing records and specimens for all MLB players who tested positive for steroids.51 Under Fed. R. Crim. P. 17(c)(2), a "court may quash . . . [a] subpoena if compliance would be unreasonable or oppressive." The district court found that the May 2004 subpoenas constituted harassment and were unreasonable.52

To support its finding, the district court pointed to United States v. American Honda Motor Co., 273 F. Supp. 810 (N.D. Ill. 1967). In American Honda, the government issued subpoenas that were "substantially identical" to one another but in different locations. Id. at 819. As a result, Honda was faced with producing the same documents repeatedly, and the court found this to be harassment. Id. at 819-20. American Honda, however, does not preclude the government from pursuing the same information through the contemporaneous issuance of subpoenas and applications for search warrants. We addressed the issuance of contemporaneous search warrants and subpoenas in In re Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d at 854. There we upheld the validity of the subpoenas against the challenge that "the subpoenas were served at the same time as the search warrants and the federal agents attempted to ‘enforce' the subpoenas through immediate seizure of the documents." Id. at 854. Noting that the challenge to the subpoenas received no support in precedent, we clarified the differences between subpoenas and search warrants:

Subpoenas are not search warrants. They involve different levels of intrusion on a person's privacy. A search warrant allows the officer to enter the person's premises, and to examine for himself the person's belongings. The officer, pursuant to the warrant, determines what is seized.

Id. By comparison:

Service of a forthwith subpoena does not authorize an entry into a private residence. Furthermore, the person served determines whether he will surrender the items identified in the subpoena or challenge the validity of the subpoena prior to compliance.

Id. We concluded that "[t]hese differences are not eliminated by the fact that the search warrants and subpoenas were delivered at the same time" and observed that the complaining party had "failed to show that the papers that are described in the subpoenas are outside the scope of a legitimate investigation by the grand jury." Id. at 854-55. In addition, we specifically emphasized the fact that the defendant was given almost a month to comply with the subpoenas. Id. at 854. [26] Therefore, the district court erred in finding the issuance of subpoenas and the contemporaneous execution of search warrants to be unreasonable. The Players Association has not argued that the evidence sought by the subpoenas is "outside the scope of a legitimate investigation by the grand jury." Id. at 855. The subpoenas were not returnable on the same day that the search warrants were executed. As in In re Grand Jury Subpoenas, the return dates on the subpoenas were over a month from the date on which the warrants were executed. The district court declared the May 6 subpoenas an "unreasonable insurance" policy, but it failed to recognize the different purposes and requirements of the warrant as compared to the subpoena and the legitimate concern that production of relevant evidence to the grand jury would be unduly delayed. See id. at 854. It was error to conflate the two distinct tools. Insurance it may have been; but, under the Fourth Amendment, unreasonable it was not.

The district court also deemed the government's actions unreasonable because it found that the agents sought search warrants in three separate districts in an attempt to avoid a ruling on the motion to quash the existing subpoenas of January and March 2004. We note that granting the motion to quash would not have prevented the government from seeking the search warrants, particularly given the existence of probable cause. Unlike a subpoena, a search warrant may be obtained only upon a showing of probable cause - a burden the government sometimes considers necessary to establish in order to obtain certain production of evidence.53 In contrast, a grand jury subpoena may issue simply because an Assistant United States Attorney believes the evidence may assist the grand jury in furthering the progress of an ongoing investigation which may never establish probable cause to charge anyone. If a subpoena based on the lesser standard of evidence does not withstand review, it does not follow that a search warrant premised on a far higher evidentiary showing could not be authorized. As the Fourth Circuit has noted, "the fact that a grand jury subpoena existed . . . at the time of the search obviously had no effect upon whether probable cause existed to search . . . for documents which were properly included within the warrant's scope." United States v. Photogrammetric Data Servs., Inc., 259 F.3d 229, 238 (4th Cir. 2001), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36 (2004).

As such, the district court rested its order on legally insufficient grounds, and abused its discretion in granting the motion to quash. See United States v. Iverson, 162 F.3d 1015, 1026 (9th Cir. 1998).

VI Finally, we address the Non-Party Journalist's Motion To Unseal, filed on November 23, 2005 by Joshua A. Gerstein. Gerstein seeks access to "the dockets for these appeals and the cases below, the district court opinions and/or orders that are the subject of these appeals, and all briefs filed with this Court."54 We have jurisdiction over these documents, because the district courts' records transferred to us upon appeal. See Fed. R. App. P. 11.

Although not a party, Gerstein enjoys standing to file the motion based upon his constitutional interest in the proceedings: Under the first amendment, the press and the public have a presumed right of access to court proceedings and documents. . . . This presumed right can be overcome only by an overriding right or interest "based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."

Oregonian Publ'g Co. v. District Court, 920 F.2d 1462, 1465 (9th Cir. 1990) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1985)).55 The Supreme Court has noted the particular interest of media members in "publish[- ing] information concerning the operation of government." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978). To decide whether Gerstein's interest justifies unsealing portions of the records, the court also must consider the privacy interests of the litigants, for "the right to inspect and copy judicial records is not absolute." Id. In the appeals at bar, the records contain extremely sensitive information, especially the drug testing records. If revealed, this information could adversely affect the reputations of many competitive baseball players. Therefore, the motion to unseal requires a careful balancing of the interests at stake. See id. (noting that access to judicial records may be limited to protect the privacy interests of the litigants, such as to avoid disclosure of "sources of business information that might harm a litigant's competitive standing").

[27] Although we have jurisdiction to conduct a merits analysis of the motion to unseal, the district courts - having greater familiarity with the records56 - are in a better position to balance the privacy interests and to determine which materials are protected grand jury materials. See Fed. R. Crim. P. 55Gerstein premises his motion on 9th Cir. R. 27-13(c). That rule states: "During the pendency of an appeal, any party may file a motion with this court requesting that matters filed under seal either in the district court or in this court be unsealed. Any motion shall be served on all parties." Id. (emphasis added). Although Joshua Gerstein is not a "party" under this rule, his standing derives from his constitutional interest and does not depend upon the applicability of 9th Cir. R. 27-13(c).


To summarize the resolution of these consolidated appeals: 1) We have no jurisdiction to address the legal foundation for the grant of the Rule 41(g) motion in the Central District of California, although we recognize that our authoritative interpretation of Tamura conflicts with the vision of Tamura upon which that order was based. The government cannot obtain redress for any alleged errors or impropriety in that order, where it failed to object in a timely manner. The government's appeal of the grant of the Rule 41(g) motion is DISMISSED for lack of jurisdiction; the order of the Central District of California denying the government's motion for reconsideration is AFFIRMED.

2) The government's seizures at the Quest facility in Las Vegas were reasonable under the Fourth Amendment. The order of the District of Nevada granting the Rule 41(g) motion is REVERSED.

3) The record, illuminated by caselaw, reveals that the subpoenas to CDT and Quest, which covered the same evidence as the contemporaneous search warrants, were not unreasonable and did not constitute harassment. The order of the Northern District of California quashing the May 6 subpoenas is REVERSED.

Outcome: Reversed

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None

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