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Date: 09-08-2021
Case Style:
United States of America v. Mordechai Korf, et al.
Case Number: 20-14223
Judge: Before MARTIN, ROSENBAUM and LUCK, Circuit Judges.
PER CURIAM
Court: IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Plaintiff's Attorney: Not Listed
Defendant's Attorney:
Description:
Atlanta, Georgia - Money laundering, conspiracy to money launder, and wire fraud lawyer represented defendant with considering whether the use of a government filter team to review seized materials that are claimed to be privileged necessarily violates the privilege holder’s rights claim.
The Northern District of Ohio was conducting a criminal investigation into
money laundering, conspiracy to money launder, and wire fraud. As it followed its
leads, it decided it needed to search a suite of offices in Miami, Florida. So the
Federal Bureau of Investigation (“FBI”) applied for a search warrant in the
Southern District of Florida.
A. The Search Warrant and Filter Team Protocol
On July 31, 2020, a magistrate judge in the Southern District of Florida
issued thatsearch warrant to be executed at the Miami offices of some of the entities
that comprise the Optima Family Companies. The offices that were the subject of
the warrant were located in a business suite.
The warrant identified the items to be seized, including records of and
concerning Ukrainian nationals Ihor Kolomoisky and Gennadiy Bogolyubov and
American citizens Mordechai Korf, Uriel Laber, and Chaim Schochet. Korf, Laber,
and Schochet allegedly own, control, or manage the more than thirty entities that
fall under the name “Optima” and have offices in the Miami suite that was the
subject of the warrant.
Among the documents sought concerning the five individuals were “all
documents for Ihor Kolomoisky, Gennadiy Bogolyubov, Mordechai Korf, Uriel
Laber, and Chaim Schochet,” from “2008 to the present,” including “[r]ecords of
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receipt of income,” “[r]ecords of all accounts and transactions at financial
institutions,” “[r]ecords of loans and financing transactions,” and “all
communications between [these persons] and any employee or agent of [any of the
entities, persons, or properties of the Optima Family Companies and Subsidiaries
and other entities and properties identified in Attachment B.3 to the warrant1
].”
The warrant also authorized seizure of “all emails sent to or from any of the abovereferenced Optima-family companies, [and entities, persons, or properties] outlined
in Attachment B.3.” Besides the seizure of paper records, the warrant authorized
seizure, imaging, or copying of all computers or other electronic storage media that
might contain the evidence described in the warrant.
If the government identified seized communications that were to or from an
attorney during the seizure, the warrant outlined a protocol that would be followed
concerning the handling of those materials. That protocol required the following:
Filter for Privileged Materials: If the government
identifies seized communications to/from an attorney, the
1 The Optima Family Companies and Subsidiaries identified in Attachment B.3 to the
warrant included Optima International, LLC, also known and operated as Optima International of
Miami; Optima Ventures, LLC; Optima Management Group LLC; Optima Acquisitions, LLC;
Optima Specialty Steel; Kentucky Electric Steel; Corey Steel Company; Niagara LaSalle
Corporation; Michigan Seamless Tube, LLC; Optima Group; Georgian American Alloys, Inc.; CC
Metals and Alloys, LLC; Felman Production, LLC; Felman Trading, Inc.; Felman Trading
Americas, Inc.; Georgian American Alloys Sarl; Georgian Manganese, LLC; Georgian American
Alloys Management, LLC; Vartisikhe 2005, LLC; Optima Fixed Income, LLC; Optima
Hospitality, LLC; Optima 777 LLC; Optima 925 LLC; Optima 925 II LLC; Optima Harvard
Facility LLC; Optima 1300 LLC; Optima 1375 LLC; Optima 1375 II LLC; Optima 55 Public
Square LLC; Optima 7171 LLC; Optima 500 LLC; Optima Stemmons LLC; Optima CBD
Investments LLC; CBD 500 LLC. Attachment B.3 also identified a number of United States
properties, third-party companies, foreign companies, and additional ownership entities.
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investigative team will discontinue review until a filter
team of government attorneys and agents is established.
The filter team will have no previous or future
involvement in the investigation of this matter. The filter
team will review all seized communications and segregate
communications to/from attorneys, which may or may not
be subject to attorney-client privilege. At no time will the
filter team advise the investigative team of the substance
of any of the communications to/from attorneys. The filter
team then will provide all communications that do not
involve an attorney to the investigative team and the
investigative team may resume its review. If the filter
team decides that any of the communications to/from
attorneys are not actually privileged (e.g., the
communication includes a third party or the crime-fraud
exception applies), the filter team must obtain a court
order before providing these attorney communications to
the investigative team.
(the “Original Filter-Team Protocol”).
Federal law enforcement agents executed the search warrant on August 4,
2020. As part of that process, agents seized various documents and equipment,
including internal servers containing electronic documents and correspondence. Inhouse lawyers and paralegals worked (or had worked) in the business suite for the
Optima Family Companies and other affiliated individuals, and for Korf, Laber, and
Schochet. And the seized documents contained some items that were allegedly
privileged.
B. Motion to Intervene and Motion for Injunctive Relief
Following the seizure, Korf, Laber, Schochet and various Optima Family
Companies and Subsidiaries (whom we have previously described as the
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Intervenors) filed a motion to intervene in the search-warrant proceedings in the
United States District Court for the Southern District of Florida. The motion advised
that the electronic data the government had seized when it executed the warrant
contained privileged documents. Contemporaneously with the motion to intervene,
the parties filed a document entitled Motion for Preliminary Injunction to Prohibit
Law Enforcement Review of Seized Materials Until an Appropriate Procedure for
Review of Privileged Items is Established (“Motion for Injunctive Relief”).
Asserting that the execution of the search warrant was the functional
equivalent of a law-office search, the Motion for Injunctive Relief primarily
challenged the use of the filter team to review privileged documents. The
Intervenors objected to the protocol’s limited provision of judicial review for
potentially privileged documents since review was available only if a
communication was clearly sent “to/from attorneys.” In the Intervenors’ view, this
exception for judicial review was inadequate because (1) the substance of the
privileged information would initially be exposed to filter attorneys before judicial
review, and (2) the scope of the documents subject to judicial review was
underinclusive. The Intervenors contended that the protocol did not account for the
existence of documents subject to the work-product doctrine, nor did it account for
the existence of communications between non-lawyers reasonably necessary for the
transmission of attorney-client communication.
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The Intervenors also expressed particular concern over the government’s
review of the privileged documents because in May of 2019, a bank filed suit in
Delaware against Korf, Laber, Schochet, and various Optima Family Companies,
alleging fraudulent activity.
2 See Joint Stock Co Comm. Bank PrivatBank v. Igor
Valeryevich Kolomoisky, et al., Del. Ch. C.A. No. 2019-0377-JRS (May 21, 2019).
According to the Intervenors, the transactions and occurrences in the Delaware case
overlapped with and were “substantively identical to the factual predicate for the
grand jury investigation [in the Northern District of Ohio]” associated with the
search warrant here.
3
Based on this overlap, the Intervenors claimed a “clear risk”
existed that “the government will be able to view a roadmap to the privilegeholders[’] defenses.” To prevent these alleged harms, the Intervenors sought to
perform their own privilege review of the documents and, more generally, they
sought an injunction to prohibit law enforcement from reviewing the seized
materials until a more protective protocol was put into place.
2The PrivatBank lawsuit alleges Racketeer Influenced and Corrupt Organization (“RICO”)
violations that arise out of “a series of brazen fraudulent schemes orchestrated by Ukranian
oligarchs and . . . Kolomoisky and . . . Bogolyubov . . . and their agents . . . to acquire hundreds of
millions of dollars-worth of U.S. assets through the laundering and misappropriation of corporate
loan proceeds issued by PrivatBank.” The Intervenors note that Korf, Laber, Schochet, and the
Optima Family Companies have been defending against the lawsuit since it was filed on May 21,
2019.
3 The Intervenors also claimed that the Delaware case overlapped with civil forfeiture
claims filed in the Southern District of Florida. Those claims sought forfeiture of the properties
listed in Attachment B.3 of the search warrant, which were owned by many of the Intervenors.
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In mid-August 2020, the magistrate judge granted the motion to intervene and
ordered the parties to meet and confer to see if they could narrow the issues
addressed in the Motion for Injunctive Relief. In the meantime, with the agreement
of the Intervenors, the government continued processing the seized materials, which
meant it could arrange to have the materials copied and scanned, but it could not
review their contents. Within forty-eight hours of processing any particular record,
the court required, the government was to provide a copy of that record to counsel
for the Intervenors.
In the government’s response to the Motion for Injunctive Relief, the
government expressed deep concern over the Intervenors’ proposal that they be
trusted with the task of reviewing for privilege on their own. According to the
government, that type of approach would cause its investigation to cease in its tracks.
The government also pushed back on the Intervenors’ assertion that the search
was the equivalent of a law-office search. It emphasized that within the multi-office
complex, only a single office was used by a single in-house lawyer, and although
three other lawyers had previously served as in-house counsel over the past decade,
they no longer had offices there. Besides that, the government noted, it had seized
only three boxes of materials from the in-house lawyer’s office, and those boxes had
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been segregated and marked.4
Ultimately, the government asked that the district
court deny the Motion for Injunctive Relief or, in the alternative, limit the scope of
the Intervenors’ proposed review of the documents seized. It further requested that
its own filter team be afforded an opportunity to review all the documents seized.
In late August 2020, the parties attempted to resolve the issues relating to the
document review. During the course of these efforts, the government provided an
inventory of the items seized. Ultimately, though, the parties were not able to agree
on a modified approach.
C. Resolution of Motion for Injunctive Relief
Because the parties were unable to resolve the dispute, the magistrate judge
heard arguments by the parties in mid-September. A few days later, the magistrate
judge entered an order granting in part and denying in part the Motion for Injunctive
Relief.
First, the magistrate judge rejected the Intervenors’ argument that the use of
government filter teams to conduct privilege reviews is per se legally flawed.
4 In its opposition to the Motion for Injunctive Relief, the government discussed how agents
“carefully watched for potentially privileged materials” on the day the search warrant was
executed. And when they came across information that might be privileged, they stopped
searching and separately designated “filter agents” (i.e., non-investigative agents) to review and
segregate the materials. Additionally, only filter agents searched the in-house lawyer’s office,
from where the three boxes of materials were seized. As we have noted, those materials were
segregated, and the filter team informed the FBI’s document processors that they were to be treated
as potentially privileged. Of the three offices occupied by unrelated lawyers, only one had relevant
material, which was collected in a single box.
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Nevertheless, the magistrate judge voiced reservations about the Original FilterTeam Protocol and concluded it did not provide sufficient protection. He found the
case differed from the ordinary search of a business since the Intervenors anticipated
asserting the attorney-client or work-product privileges over numerous
communications relating to matters at issue in the Delaware RICO litigation and the
two civil forfeiture actions brought in the Southern District of Florida. And he
expressed concern that if the documents were inadvertently disclosed to the
investigation and prosecution team, the government could become privy to
privileged materials concerning the Delaware litigation. For these reasons, the
magistrate judge concluded that the Intervenors had showed a likelihood of success
on the merits with respect to the Original Filter-Team Protocol as applied to the
seized items. To address the perceived problem, the magistrate judge decided that
allowing the Intervenors to conduct the initial privilege review would protect both
the Intervenors and the government from the inadvertent disclosure of privileged
materials to the investigation and prosecution team.
Second, the magistrate judge determined that the Intervenors showed a danger
of irreparable harm with respect to the Original Filter-Team Protocol, since it
required the filter team to segregate only communications that were “to/from
attorneys.” Because of the potentially underinclusive way of identifying privileged
communications, the magistrate judge reasoned, the Original Filter-Team Protocol
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presented a danger that some items protected by the attorney-client or work-product
privileges might be inadvertently disclosed to the investigative team.
Third, when the magistrate judge analyzed the balance of the harms, he found
them to favor enjoining the Original Filter-Team Protocol.
Finally, although the magistrate judge concluded that the parties had identified
important competing public interests, he ruled that the public interest would be best
served by applying a modified filter-team protocol, which he then described. Under
the new protocol, the Intervenors were to conduct an “initial privilege review of all
seized items [and] provide a privilege log to the government’s filter team.” Then
the government’s filter team, which the magistrate judge required to be composed
of attorneys and staff from outside the investigating office (the United States
Attorney’s Office for the Northern District of Ohio’s Cleveland branch office),
would have the opportunity to challenge any privilege designation on that log.
Although the filter team would be “permitted to review any item on the privilege log
in order to formulate a challenge[,]” the investigation and prosecution team would
be prohibited from receiving any items on the privilege log “unless agreed to by the
parties or the Court/special master ha[d] overruled the privilege.”
The more specific details of the modified filter-team protocol the magistrate
judge imposed are set forth below:
a. The government shall process the items and provide
them to the movants, on a rolling basis, so that the movants
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may perform the initial privilege review. Within forty-five
(45) days of receipt of these items, the movants shall
release all non-privileged items to the government’s
investigative/prosecution team and provide a privilege log
to the government’s filter team for all items for which they
assert a privilege.
b. The government’s filter team shall be comprised of
attorneys and staff from outside the United States
Attorney’s Office for the Northern District of Ohio’s
Cleveland branch office. The filter team shall not share a
first level supervisor with anyone on the
investigative/prosecution team. Any supervisor involved
in the filter team review shall be walled off from the
underlying investigation.
c. The government’s filter team is permitted to review any
items listed on the movants’ privilege log and may
challenge any of the movants’ privilege designations.
d. The government’s filter team and the movants’ counsel
shall confer and attempt to reach a resolution as to those
items challenged by the government’s filter team.
e. If the parties are unable to reach a resolution, the parties
shall file a joint notice with the Court. Either the Court or
a special master shall rule on the parties’ privilege
disputes.
f. The filter team will provide to the investigative team
only those items for which the parties agree or for which
the privilege has been overruled.
(the “Modified Filter-Team Protocol”).
D. Objection to the Order and Appeal to the District Court Judge
With the district court, the Intervenors filed an appeal from and objections to
the magistrate judge’s order and revised protocol. The Intervenors suggested the
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court should review materials first or use a special master to evaluate claims of
privilege. They sought for the district court to vacate the portion of the Modified
Filter-Team Protocol that authorized a filter team composed of government
employees to review documents identified as privileged.
The district court set a hearing on the matter and after hearing from the parties,
entered an order overruling the Intervenors’ objections and affirming the magistrate
judge’s revised protocol. Among other conclusions, the district court reasoned that
improper disclosure of privileged documents to the prosecution team was not a
concern since “[n]ot only do [the Intervenors] have the opportunity to review the
documents before the filter team, but any documents identified by the [Intervenors]
in their privilege log may not be released to the prosecution team until the parties
agree to do so, or the Court or special master has ruled on the privilege objections.”
In this way, the district court found the Modified Filter-Team Protocol incorporated
“several layers of safeguards that prevent[ed] anyone other than the filter team and
[the Intervenors] from reviewing the potentially privileged documents.” The district
court also expressed concern that requiring the district-court judge, magistrate judge,
or special master to routinely review lawfully seized documents would be too
burdensome. Overall, the district court determined that the Modified Filter-Team
Protocol had been carefully crafted to afford protection of the attorney-client and
work-product privileges.
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This appeal ensued.
II.
A. We have jurisdiction over this appeal
We begin by considering our jurisdiction. We review de novo whether we
have jurisdiction to decide this interlocutory appeal, before we can address the merits
of the case. Doe No. 1 v. United States, 749 F.3d 999, 1003 (11th Cir. 2014).
The government contends that we lack jurisdiction because of the procedural
posture of this case. In support of this contention, the government notes that the
Intervenors invoked Rule 41(g) of the Federal Rules of Criminal Procedure—which
governs motions for return of property—as a basis for seeking to bar government
employees from reviewing lawfully seized materials. The government relies on
DiBella v. United States, 369 U.S. 121, 82 S. Ct. 654 (1962), to argue that the
Intervenors’ case does not involve the “narrow circumstances” under which the
denial of a Rule 41(g) motion is immediately appealable. As a result, the
government asserts, we do not have jurisdiction over the Intervenors’ appeal.
Generally, “courts of appeals ‘have jurisdiction of appeals from all final
decisions of the district courts of the United States[.]’” Doe No. 1, 749 F.3d at 1004
(quoting 28 U.S.C. § 1291) (alteration adopted). In DiBella, the Supreme Court
considered whether orders on two preindictment motions to suppress the use of
evidence in a forthcoming criminal trial (evidence that was allegedly procured
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through an unreasonable search and seizure) were exceptions to the final-judgment
rule and immediately appealable as a final order. 369 U.S. at 121-23. It decided
they were not.
To determine whether the district court’s orders were immediately appealable
as a final judgment, the DiBella court said the orders must be “independent” from
the judgment. 369 U.S. at 126. In other words, they must be “fairly severable from
the context of a larger litigious process.” Id. at 127 (citation and quotation marks
omitted). “Only if the motion is solely for return of property and is in no way tied
to a criminal prosecution in esse [(in actual existence)] against the movant can the
proceedings be regarded as independent,” and an immediate appeal taken therefrom.
See id. at 131–32. This is known as the DiBella test. The Supreme Court held the
pre-indictment suppression motions failed that test because motions to suppress will
“necessarily determine the conduct of the trial and may vitally affect the result” such
that they are intertwined with the entire case. Id. at 127 (quotation marks omitted).
DiBella also considered two other principles that reinforced its determination.
First, it concluded that suppression orders were not of the type “where the damage
of error unreviewed before the judgment is definitive and complete.” Id. at 124. Of
course, that is so because if the district court erred in denying the motion to suppress,
any damage could be fixed on appeal by excluding the documents at issue and
remanding for a new trial or dismissal. Second, noting the “Sixth Amendment
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guarantees [of] a speedy trial,” the Court expressed concerns about “delays and
disruptions” that might interfere with “the effective and fair administration of the
criminal law,” if pre-indictment suppression motions could be immediately
appealed.5 Id. at 126; see also id. at 129 (“The fortuity of a pre-indictment motion
may make of appeal an instrument of harassment, jeopardizing by delay the
availability of other essential evidence.”). With these considerations in mind, the
Court ruled that “the mere circumstance of a pre-indictment motion does not
transmute the ensuing evidentiary ruling into an independent proceeding begetting
finality even for purposes of appealability.” Id. at 131.
Because the Intervenors moved the district court for the return of their
property under Rule 41(g), we must apply the DiBella test to determine whether we
have jurisdiction over their appeal.6
See, e.g., Harbor Healthcare Sys., L.P. v.
United States, 5 F.4th 593, slip op. at 6–7 (5th Cir. 2021); In re Search of Elec.
Commc’ns in the Acct. of chakafattah gmail.com at Internet Serv. Provider Google,
Inc., 802 F.3d 516, 530 (3d Cir. 2015); In re Sealed Case, 716 F.3d 603, 605–09
(D.C. Cir. 2013); In re Grand Jury, 635 F.3d 101, 103 (3d Cir. 2011). We believe
5 Both the cases before the Court in DiBella involved defendants who had been arrested
but not yet indicted when they filed their suppression motions. 368 U.S. at 122-23.
6 The parties dispute whether the Intervenors actually invoked Rule 41, but we believe this
is the proper way to come before the court to seek an injunction regarding the government’s use
of a filter team to review seized documents. Cf. Richey v. Smith, 515 F.2d 1239, 1243 (5th Cir.
1975) (explaining that motions for the return of property are governed by equitable principles,
whether viewed as based on Rule 41(g) or on a federal court’s general equitable jurisdiction).
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the Intervenors’ claims are sufficiently independent from any forthcoming criminal
judgment to pass the DiBella test here.
The Intervenors clearly seek only the return of their property. They sought to
prohibit the government from reviewing seized materials until a protocol protective
of the attorney-client privilege was ordered. To protect the privileged materials, they
primarily asked for the court to order the return of the seized documents to prevent
law enforcement from reviewing the materials and suggested, in the alternative, that
an independent party could act as the filter. They do not seek to invalidate the
seizure—indeed, the government currently remains in possession of the materials
seized. See Oral Argument Recording at 2:36–44 (July 1, 2021) (“To be clear as we
sit here today hearing the case, the materials are safe. They are in the possession of
the government.”). Nor do they seek to suppress the seized materials or ask for any
other relief. This is sufficient to conclude the motion was solely for the return of
property. See Richey, 515 F.2d at 1242–44 & n.5 (noting that by abandoning the
motion to suppress the “DiBella test would seem to be satisfied,” and that “prayers
for injunctive relief to prevent examining, analyzing, scheduling, or copying of the
documents [are] an integral part of the . . . motion for return of property”).
Neither was the Intervenors’ motion in any way tied to an ongoing criminal
prosecution. See DiBella, 369 U.S. at 131–32. DiBella suggested there was a
criminal prosecution “in esse,” or in existence, “[w]hen at the time of the ruling there
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is outstanding a complaint, or a detention or release on bail following arrest, or an
arraignment, information, or indictment.” Id. (emphasis added). There is currently
no complaint, arrest, detention, or indictment in this case. Therefore, “according to
the literal language of DiBella,” there is no criminal prosecution in esse. United
States v. Glassman, 533 F.2d 262, 262–63 (5th Cir. 1976).
But the inquiry doesn’t stop there. In In re Grand Jury Proceedings(“Berry”),
730 F.2d 716 (11th Cir. 1984) (per curiam), where this Court previously applied
DiBella to a motion characterized as seeking the return of property, we said that a
“pending criminal investigation, even in the absence of a formal charge,” may be
enough to show that the motion is tied to a criminal prosecution. Id. at 717. Berry
explained that determining whether a motion meets the “no way tied to an ongoing
criminal prosecution” rule from DiBella may be relatively straightforward from the
procedural standpoint of the case. But Berry directed us to consider not only the
existence of a pending criminal investigation, but also to look to the purpose of the
motion for the return of property. See id. at 717–18. If it “is obvious from a reading
of the motion that appellants are attacking the validity of the search and seizure under
the fourth amendment,” then it is “clear that the motion is tied to the ongoing
criminal investigation and to issues that may be litigated in any subsequent criminal
proceedings arising out of the seizure.” Id. at 718; see also Glassman, 533 F.2d at
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262–63 (“Only if this motion was a collateral attempt to retrieve property and not an
effort to suppress evidence in related criminal proceedings is it appealable.”).
The Intervenors are subjects of an ongoing criminal investigation. But under
Berry, an ongoing criminal investigation isn’t—by itself—dispositive. See Berry,
730 F.2d at 717 (“A pending criminal investigation, even in the absence of a formal
charge, may be sufficient to show that the motion is tied to an existing criminal
prosecution.” (emphasis added)). And for the same reasons we have already
described, the Intervenors’ Rule 41(g) motion in no way attacked the validity of the
search and seizure of the materials.
The Intervenors sought equitable relief in the form of an injunction in a civil
case to prohibit the government from reviewing seized materials until a protocol
protective of the attorney-client privilege was ordered. They argued they could
prove the four elements required to obtain an injunction in a civil case. And they
sought return of the seized documents to protect privileged materials by preventing
law enforcement from reviewing the materials, asking in the alternative for an
independent party to act as the filter. Both the magistrate judge and the district court
treated the motion as a civil preliminary injunction to protect privileged documents.
So it is clear that the purpose of the Intervenors’ motion is not to attack the validity
of the search and seizure under the Fourth Amendment and is therefore not tied to
any criminal prosecution. Cf. Berry, 730 F.2d at 717–18.
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Appellate jurisdiction here also satisfies the concerns underlying the need for
appellate review of interlocutory orders as explained in DiBella. See 369 U.S. at
124–29. The damage from any error in the district court would be “definitive and
complete,” if interlocutory review is not available, and would outweigh any
“disruption caused by the immediate appeal.” Id. “The whole point of privilege is
privacy.” Harbor Healthcare, 5 F.4th 593, slip op. at 10. So the Intervenors’
interests in preventing the government’s wrongful review of their privileged
materials lie in safeguarding their privacy. See id. Once the government improperly
reviews privileged materials, the damage to the Intervenors’ interests is “definitive
and complete.” DiBella, 369 U.S. at 124.
Contrary to the government’s suggestion, suppression is not an adequate
remedy for any violations. We cannot know whether criminal charges will be
brought against the Intervenors. Yet suppression protects against only “the
procedural harm arising from the introduction [at a criminal trial] of unlawfully
seized evidence.” Harbor Healthcare, 5 F.4th 593, slip op. at 12. If the Intervenors
are not charged, they will not have suppression available to them as a potential
remedy. See id. And even if they are charged and may seek suppression,
suppression does not redress the government’s intrusion into the Intervenors’
personal and privileged affairs. See id.
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In contrast, Rule 41(g) can. It offers the remedy of returning to the Intervenors
any improperly seized documents protected by privilege before the government has
reviewed them. See Fed. R. Crim. P. 41(g); see also Harbor Healthcare, 5 F.4th
593, slip op. at 12. Unlike suppression, that is a remedy that can redress any potential
injury by ensuring it does not occur in the first place. And if a district court
incorrectly denies Rule 41(g) relief when it is required, immediate review is
necessary to preserve that same remedy of return of the documents before the
government reviews them. Review later would be incapable of vindicating the
Intervenors’ privacy interests. See Richey, 515 F.2d at 1243 n.6 (“[A]ppellate review
might be appropriate where to deny the right to appeal at a specific time would in
effect deny the right to appeal at all on the specific issue.”).
Interlocutory review also comports with DiBella’s concern that the motion for
injunctive relief at issue here is severable and distinct from any other proceedings.
See DiBella, 369 U.S. at 126–27. Indeed, the Intervenors’ motion, which seeks only
to address the review protocol as it relates to allegedly privileged documents and to
obtain return of privileged documents, “is a discrete action, not tied to any other civil
or criminal proceedings, [so granting] review would not frustrate the policy against
piecemeal review in federal cases.” Richey, 515 F.2d at 1243 n.6.
As for DiBella’s concern for delaying criminal proceedings, that can be
minimized by expediting review of motions of this type. The merits of a motion
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seeking only injunctive relief in the form of a preferred protocol for the
government’s review of allegedly privileged materials and the return of those items
that the protocol determines are protected are not complex. A review protocol for
privileged documents either does or does not sufficiently protect the interests of the
person or entity that owns the allegedly privileged documents. And we are hopeful
that our analysis below on the merits, see infra at Section II.B., will make that
straightforward issue even simpler. In short, the specific motion before us here
meets the DiBella test.
7
B. The district court did not abuse its discretion in issuing the Modified
Filter-Team Protocol and denying the Intervenors’ motion to the extent
it sought to preclude any government review of documents before the
Intervenors agreed or the court ordered disclosure
7 The government relies on other cases to further its jurisdiction argument, but each is
distinguishable. First, it points to Sealed Case, 716 F.3d 603, and Grand Jury, 635 F.3d 101, to
argue that as in those cases, the purpose of the Intervenor’s motion was “to place an additional
layer of screening between the government and the seized materials, inevitably causing delays and
restrictions that could shape the course of the criminal investigation and the content of the case”
the government will eventually present. But both of those cases involved challenges to the validity
of the search warrant, so under Berry, they would be tied to an ongoing criminal prosecution. The
D.C. Circuit’s and the Third Circuit’s holdings that they did not have jurisdiction do not apply
here.
The government also makes a fleeting reference to Mohawk Industries, Inc. v. Carpenter,
558 U.S. 100 (2009), in which the Supreme Court noted that rulings on privilege are typically not
immediately appealable. That case, though, did not involve a claim that the government was
invading privilege for the purpose of possibly taking action against the privilege holders. Not only
that, but Mohawk involved a claimant who was a party to the suit and could appeal a final
judgment. The Mohawk Court did not address appeals like this one, by privilege claimants who
are intervenors in a proceeding ancillary to a criminal investigation. See Doe No. 1, 749 F.3d at
1007.
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The Intervenors assert that the district court abused its discretion in denying
their motion for a preliminary injunction to prohibit any federal prosecutors or their
agents—including the filter team—from reviewing documents the Intervenors
identify as privileged unless the Intervenors agree or the court permits government
review after first conducting its own privilege review. We disagree.
To obtain a preliminary injunction, the movant must clearly establish four
showings: (1) it has “a substantial likelihood of success on the merits;” (2) it will
suffer “irreparable injury” in the absence of the injunction sought; (3) any threatened
harm to the movant that might be inflicted because of the proposed injunction will
outweigh any damage to the opposing party; and (4) the injunction sought “would
not be adverse to the public interest.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th
Cir. 2000) (en banc) (per curiam). We have said that a preliminary injunction is an
“extraordinary and drastic remedy.” Id.
On appeal, we review the denial of a preliminary injunction for abuse of
discretion. Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016).
A district court abuses its discretion if “its factual findings are clearly erroneous, . .
. it follows improper procedures, . . . it applies the incorrect legal standard, or . . . it
applies the law in an unreasonable or incorrect manner.” Id. at 1247. Under this
standard, a district court may make any of a range of permissible choices. Id.
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We have recognized that appellate review of a preliminary-injunction decision
is “exceedingly narrow” because of the expedited nature of the proceedings. Wreal,
840 F.3d at 1248. This means our review is deferential. Id. We have commented
that appellants face a “tough road” in establishing the four prerequisites to obtain a
preliminary injunction. And on appeal, they “must also overcome the steep hurdles
of showing that the district court clearly abused its discretion in its consideration
of each of the four prerequisites.” Id. The “failure to meet even one [factor] dooms
[an] appeal.” Id.
While we have described a showing of irreparable injury as “the sine qua non
of injunctive relief,” Siegel, 234 F.3d at 1176, here, we need proceed no further than
consideration of the Intervenors’ likelihood of success on the merits. We conclude
the district court did not abuse its discretion in determining that the Intervenors did
not show a substantial likelihood of success on their position that government filter
teams are per se violative of their rights. Nor did it abuse its discretion in effectively
concluding that the Intervenors did not show a substantial likelihood of success on
their argument that the Modified Filter-Team Protocol violates their rights. Indeed,
because of the great weight of authority that supports the district court’s conclusions
here, our holding on this front is not even close.
We begin by recognizing that the attorney-client and work-product privileges
play a vital “role in assuring the proper functioning of the criminal justice system”
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and provide a means for a lawyer to prepare her client’s case. See United States v.
Nobles, 422 U.S. 225, 238 (1975). They are deeply important and must be respected.
Nevertheless, they are not inviolate. We have recognized exceptions that allow for
their breach. For example, when the crime-fraud exception applies, it effectively
invalidates the privileges.8 See In re Grand Jury Investigation, 842 F.2d 1223 (11th
Cir. 1987). But to be sure, any filter protocol must appropriately take into account
the importance of these privileges.
With that in mind, we turn to the Modified Filter-Team Protocol.
Significantly, the Modified Filter-Team Protocol allows the Intervenors to conduct
the initial privilege review. It also requires the Intervenors’ permission or court
order for any purportedly privileged documents to be released to the investigation
team. This means that the filter team cannot inadvertently provide the investigation
team with any privileged materials. For three reasons, we conclude that this Protocol
suffices under the law.
First, though we have not previously issued any published opinions on point,
some of our sister circuits have approved of the use of a walled-off government filter
team to review documents for privilege. In United States v. Jarman, 847 F.3d 259
8 The crime-fraud exception applies if (1) the client was involved in or was planning
criminal conduct when he sought advice of counsel, or that he committed a crime after he received
the benefit of legal counsel; and (2) “the attorney’s assistance was obtained in furtherance of the
criminal . . . activity or was closely related to it.” In re Grand Jury Investigation, 842 F.2d at 1226.
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(5th Cir. 2017), for instance, the Fifth Circuit upheld the filter team’s screening for
privileged materials. Id. at 266. There, the court stated that the filter team process
was “designed to protect [the] privileged information.” Id. The Second, Third,
Fourth, Seventh, Eighth, Ninth and Tenth Circuits, in at least some cases, have also
either approved of or recognized and declined to criticize the use of government
filter teams to screen materials for privilege before items are released to the
investigators in the case. See, e.g., S.E.C. v. Rajaratnam, 622 F.3d 159, 183 & n.24
(2d Cir. 2010); Search of Elec. Commc’ns in the Acct. of chakafattah gmail.com at
Internet Serv. Provider Google, Inc., 802 F.3d at 530; United States v. Myers, 593
F.3d 338, 341 n.5 (4th Cir. 2010); United States v. Proano, 912 F.3d 431, 437 (7th
Cir. 2019); United States v. Howard, 540 F.3d 905, 906 (8th Cir. 2008); United
States v. Christensen, 828 F.3d 763, 799 (9th Cir. 2015); United States v. Ary, 518
F.3d 775, 780 (10th Cir. 2008).
Second, the Intervenors cite no cases for the broad remedy they seek: a
holding that government agents “should never . . . review documents that are
designated by their possessors as attorney-client or work product privileged” until
after a court has ruled on the privilege assertion.” Nor has our research unearthed
any.
Third, to the extent that courts have disapproved of particular filter-team
protocols, the Modified Filter-Team Protocol suffers from none of the defects those
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courts found disqualifying. The Intervenors rely primarily on In re Grand Jury
Subpoenas 04-124-03 and 04-124-05 (“Winget”), 454 F.3d 511 (6th Cir. 2006), and
In re: Search Warrant Issued June 13, 2019 (“Baltimore Law Firm”), 942 F.3d 159
(4th Cir. 2019), to support their contention that the Modified Filter-Team Protocol
violated their rights. But both cases are materially different.
Winget arose when the plaintiffs there learned that a third party had received
a grand-jury subpoena for documents, some of which allegedly were subject to the
plaintiffs’ claims of privilege. 454 F.3d at 512. There, the district court permitted a
government-filter-team protocol under which the government’s filter team—not the
purported privilege possessors or the court—determined which documents were
privileged. See id. at 515. Only if the team found a document definitely or possibly
privileged did it submit it to the court for a privilege review. See id. at 515, 518 n.5.
The Sixth Circuit held that this protocol failed to sufficiently protect the
plaintiffs’ claims of privilege. First, the court questioned the use of a government
filter team in non-search-warrant situations like the one at issue there. Id. at 522–
23. But after a search warrant is executed, the court recognized, the government has
physical control of potentially privileged documents. Id. at 522. So, the court
reasoned, “the use of the [filter] team to sift the wheat from the chaff constitutes an
action respectful of, rather than injurious to, the protection of privilege.” Id. at 522–
23. And second, the court expressed concern that a government filter team that takes
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the first pass at the materials for privilege can miss privileged items and mistakenly
pass them along to the investigative team. Id. at 523. In other words, a protocol of
that sort imposes no check on any of the filter team’s determinations that an item is
not privileged. Id.
But neither of these problems exists here. In fact, the records here are already
in the government’s possession as the result of the execution of a search warrant, so
under Winget, the use of a filter team to review them is “respectful of, rather than
injurious to, the protection of privilege.” Id. at 522–23. And unlike in Winget, under
the Modified Filter-Team Protocol, the Intervenors identify all allegedly privileged
materials in the first instance. So there is no possibility here that privileged
documents will mistakenly be provided to the investigative team.
Baltimore Law Firm is also different from the Intervenors’ case in important
ways. There, the government seized documents in accordance with a search warrant.
Baltimore Law Firm, 942 F.3d at 164. The search warrant was for a lawyer’s records
as they concerned one specific client. Id. at 166. In seizing that lawyer’s materials,
the government took all the lawyer’s email correspondence, including his
correspondence with clients other than the one whose materials were authorized to
be seized. Id. at 166–67. In fact, of the 37,000 emails seized from the lawyer’s
inbox, only 62 were from the designated client or contained that client’s surname.
Id. at 167. Similarly, only 54 of the 15,000 emails seized from the lawyer’s “sent
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items” folder had been sent to the designated client or contained that client’s
surname. Id. The vast majority of the rest of the correspondence was from other
attorneys and concerned other attorneys’ clients who had no connection at all with
the investigation that led to the search warrant. Id. But notably, some of those other
clients were being investigated by or prosecuted by the same United States
Attorney’s Office for unrelated crimes. Id.
At the time the magistrate judge issued the search warrant, the magistrate
judge also authorized a government filter-team protocol. Id. at 165. Like under the
Winget protocol, the Baltimore Law Firm protocol allowed the government filter
team to determine initially whether items were potentially privileged or not. Id. at
166. And when the filter team found materials not to be privileged, it could forward
them directly to the investigative team. Id. As for items the filter team deemed
privileged or potentially privileged, the filter team could provide those materials to
the investigative team only if the parties agreed or the court concluded after review
that the items could be turned over. Id. at 166.
The Fourth Circuit held that the filter-team protocol that the magistrate judge
approved was legally flawed.9
Id. at 176. As relevant here, it objected first to the
9 The district court modified the protocol to require the filter team to forward any materials
it deemed nonprivileged to the plaintiff or the court for approval before providing them to the
investigative team. Baltimore Law Firm, 942 F.3d at 170. A concurring opinion in Baltimore Law
Firm suggests that the majority decision did not address or otherwise call into question the
modified filter protocol, which was more similar to the protocol at issue here. See id. at 169–70,
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protocol’s assignment of judicial functions to the executive branch. Id. In particular,
the court noted that the resolution of a privilege dispute is a judicial function. Id.
So the protocol should not have authorized the government filter team to determine
in the first instance whether materials were privileged. Id. at 176–77. The court also
concluded that the magistrate judge should not have authorized the filter-team
protocol ex parte and before the magistrate judge knew what had been seized. Id. at
178. Noting that the great majority of emails seized appeared not to be relevant to
the client who was the subject of the government’s investigation, the court opined
that that information should have affected the protocol that was put into place. Id.
Not only that, the court explained, but the magistrate judge should have waited to
determine the protocol in an adversarial proceeding where the privilege holder could
be heard. Id. at 178–79.
As with Winget, none of the concerns the Fourth Circuit identified in
Baltimore Law Firm apply here. Though the magistrate judge originally approved
the Original Filter-Team Protocol ex parte, before the investigative team could
review any documents, the court held an adversarial hearing and, after considering
the Intervenors’ concerns, put the Modified Filter-Team Protocol into place. Also
unlike in Baltimore Law Firm, this case involves no claims that the majority of
183–84. And the concurring opinion noted that the majority opinion did not suggest the modified
protocol “impermissibly usurp[ed] a judicial function.” Id. at 184 (Rushing, J., concurring).
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seized materials were both privileged and irrelevant to the subject of the
investigation. And finally, the Modified Filter-Team Protocol did not assign judicial
functions to the executive branch. Rather, and as we have noted, under the Modified
Filter-Team Protocol, the Intervenors have the first opportunity to identify
potentially privileged materials. And before any of those items may be provided to
the investigative team, either the Intervenors or the court must approve. Put simply,
the Modified Filter-Team Protocol complies with the recommendations both the
Sixth and Fourth Circuits have made concerning the use of filter teams.10
So once again, we return to the observation that the Modified Filter-Team
Protocol appears to us to comply with even the most exacting requirements other
courts that have considered such protocols have deemed appropriate. In short, the
Intervenors have not clearly established a substantial likelihood of success on the
merits.
Outcome: For the reasons we have explained, we affirm the district court’s order.
AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: