Martin G. Weinberg is a Director of NACDL, co-chair of the NACDL Lawyer's Assistance Strike Force and a partner in the law firm of Oteri, Weinberg & Lawson in Boston. He was trial counsel in the recent successful defense in United States v. Magluta and Falcon in Miami, Florida and is co-counsel for Attorney William Moran in the upcoming "Cali Cartel trial" in November in Miami.
Kimberly Homan is a partner in the firm of Sheketoff & Homan, Boston. She was co-counsel in Moran & Gold v. United
States and in United States v. Patriarca. She limits her practice to criminal law, appellate and pre-trial motions.
On September 9, 1994, five law offices, four in Miami and one in Washington, D.C., were searched pursuant to warrants issued by United States Magistrate-Judges upon application of the United States Department of Justice. Seized from the law offices were thousands of pages of documents, including client files containing materials clearly protected under both the attorney-client and work product privileges, and the entire hard drives of the computer operating systems of the law firms. The computer materials contained the secrets and confidences of a wide variety of clients, most of whom had retained the attorneys to provide legal services that were completely unrelated to the investigation which generated the searches.
This article is addressed to the question of what to do when you receive a call from a friend or a colleague seeking your assistance because federal agents have invaded his or her offices with a search warrant and are proceeding to examine client files and seize documents. Much of the material discussed here is based upon our experience in litigating the propriety of the government's search of and seizures from the client files and computers of the law offices of Moran & Gold, P.A., in Miami and, particularly, the government's position that it could properly arrogate to itself the determination whether seized materials were or were not privileged.
The recent promulgation by the Department of Justice of a Policy Statement regarding internal procedures to be followed in seeking a warrant to search the law offices of "an attorney who is the subject of an investigation, and who is or may be engaged in the practice of law on behalf of clients,"1 signals an institutional determination that searches of client files located in the offices of their attorney -- once regarded as an extraordinary incursion -- have now become a sufficiently commonplace prosecutorial impulse that written guidance in its exercise was thought necessary.
While the Policy Statement adverts to the potential effects which the execution of a law office search warrant may have upon the attorney-client relationship, it does not mandate procedures which will minimize either recourse to a law office search warrant or the attendant intrusion upon the attorney-client privilege if such a search warrant is authorized. Instead, it requires only advance consultation with the Department of Justice Criminal Division. In other contexts in which tension has existed between the concerns of the criminal defense bar and the interests of the Justice Department, the promulgation of guidelines has had an ameliorating effect in areas of deep concern to the defense bar. It is our hope that the issuance of these guidelines and the mandated advance consultation with the Criminal Division will result in the issuance of fewer law office search warrants and that additional guidelines will be promulgated which will provide greater substantive and procedural protections for the attorney-client and work product privileges.
The Moran & Gold Law Office Search
On September 9, 1994, approximately 15 U.S. Customs and Drug Enforcement Administration (DEA) agents entered the law offices of Moran & Gold, armed with a search warrant which authorized the agents to search for, and seize:
documents, files and other items including computer hard drives, computer floppy disks and computer diskettes for the names and companies specified in attachment "F" to the application to this warrant, all of which constitute evidence, fruits and/or instrumentalities of various violations of federal law, including, without limitation, Title 18, U.S. Code, Sections 2, 371, 1001, 1071, 1503, 1505, 1510, 1512, 1622, 1952, 1956, and 1957 and Title 21, U.S. Code Sections 846 and 963.
The description of the materials to be seized set forth in Attachment "F" encompassed virtually every sort of document or record which would generally be found within a law office. More extraordinarily, it contained a list of 116 names of individuals and entities, which included not only past and present clients of the firm but also a large number of individuals and entities as to whom the government had no reason to believe there would be documents or records found on the premises of the law firm, other than its post hoc explanation that, as William Moran had represented several alleged members of a huge narcotics conspiracy, including its leaders, it was reasonable to posit that documents to be found at the law firm might relate to anyone whom the government thought to be a member of the enterprise or to any entity through which it was thought to have conducted its business.
Armed with this warrant -- the only document which William Moran and his associate Lawrence Kerr were allowed to see -- the agents proceeded to conduct a ten-hour search, approximately 150 agent hours, during the course of which they examined every client file in the offices -- not just those that bore the name of an individual listed on Attachment F -- and every piece of paper therein. Neither Moran nor Kerr were permitted to examine Attachment F during the course of the search, which they sought to do for purposes of directing the agents to those materials which were seizeable under the warrant in order to forestall the all-out rummaging of client files which was underway.2
What they were given, rather than any information which might assist them in guiding the agents' search and protecting the privileges and privacy interests of clients not implicated under the warrant, was a letter addressed "To Whom It May Concern" which began with the chilling words "[f]ederal agents are now engaged in a court-authorized search of your office. . . ." The searching agents, having made their own unguided determination to review every file and every document in the office, ultimately carted off thousands of pages of documents as well as every piece of computer hardware and software in the office, which contained every memo, letter, or other document generated by the firm on its computers for the prior six years.
Federal agents armed with a second warrant also searched files and materials stored by the law firm at an archival storage facility. They made extensive seizures which fell so unambiguously outside the scope of the warrant that the government very soon thereafter returned copious materials to the law firm.
At this point, only the most prompt intervention will prevent the manifest violations of the attorney-client and work product privileges inherent in any governmental review of privileged documents. Unless you are lucky enough to be presented with one of those rare cases in which review by a Special Master or a judicial officer has been incorporated into the search process by the government itself or by the issuing judge, the government is likely to take the position that it is perfectly appropriate for its own personnel, i.e., its own "taint team," to review client files or other materials to decide what is privileged and what is not. And, moreover, it will begin to do so immediately.
The first order of business, then, is to contact the Justice Department officials or other prosecutors responsible for the search and the subsequent processing of the seized materials. Immediate contact should be made by telephone, in which, at a minimum, the attorney-client and work product privileges, and the clients' Sixth Amendment rights to the effective representation of counsel should be forcefully asserted, along with a demand that the government cease any review of client information or client-related computer data, including even preliminary Bates-stamping procedures, seal the documents, and deliver them to the district court for the district in which the search was authorized and conducted.
During the initial contact, you should stress the rights of third parties, i.e.,, present and former clients, who are wholly unrelated to the investigation. This is a crucial consideration because the government will likely contend that the rights of the attorney can be adequately safeguarded by use of such procedures as "Chinese Walls." Even assuming that "Chinese Walls" are ever wholly effective in preventing the prosecution team from attaining knowledge of the content of privileged materials, they provide no protection whatsoever for clients whose reasonable expectation of privacy is that no executive branch officer will ever examine their files.
The government's response to such an overture will likely be -- as it was in the case of the Moran & Gold search -- outright rejection of any suggested course which might impede its review of the seized materials. The telephone conversation should be followed immediately by a letter sent via facsimile to the appropriate prosecutor, outlining the reasons why in-house privilege review does not adequately safeguard, and indeed, violates, the attorney-client and work product privileges and the privacy rights of the law firm's clients, as well as the work product privilege of the attorney, and setting forth the course of action to which you seek the government's voluntary acquiescence. This should include, at a minimum, a request that the government cease its internal review and await judicial oversight or performance of the privilege review.
What follows, as an example which can be modified to suit different circumstances, is the text of a letter which was sent to the government Monday, September 12, 1994, following the search at Moran & Gold on Friday, September 9, 1994:3
I represent the law firm of Moran & Gold, P.A. I assert, on behalf of the law firm (comprised of William Moran and Lawrence Kerr) and their past and present clients, the attorney-client and work product privileges and the Sixth Amendment constitutional guarantee to effective representation of counsel and request that you immediately terminate any review of client files or computer materials that contain client files and that you return the entirety of such materials to the law firm. Alternatively, and without waiving my initial assertion, I request that you transmit the entirety of the Moran & Gold client files and computer hard-drives and disks to a United States Magistrate or a Master selected by a judicial officer for the purpose of transferring the search of attorney-client documents from the Executive to the Judicial Branch of government.
I have been informed that it is the intent of the Department of Justice to retain and review the entirety of the seized computerized data, including materials that facially pertain to clients not identified in Exhibit "F" as part of the search process. Without waiving any rights possessed by the law firm or any client identified in Attachment "F", I strongly urge you to respect the confidentiality of the past and present clients who are not identified in the attachment to the warrant and whose private legal materials are contained on the computer hardware and software which are currently in your possession and submit the computerized materials to a neutral and detached Magistrate or Master for review.
Finally, I would request the expeditious return of computer and office equipment as well as the return of various business records that are essential to the continuing function of the Moran & Gold law firm.
In the case of the Moran & Gold search, the government remained adamant, despite this letter, that it not only could, but would, continue to review the seized documents and that it was entitled to scroll through the entirety of the firm's computerized data, including client information, to locate the information it sought. The following letter was, therefore, sent via facsimile on September 14, 1994:
The purpose of this letter is to supplement my prior communication dated September 12, 1994, regarding the search of the law offices of Moran & Gold in Miami, Florida on September 9, 1994, the subsequent search at Pierce Leahy Archives and the extensive seizure of documents, legal files, and computer hardware and software. First, I continue to object to the scope of the warrant, the manner of its execution, and the continued retention and review of the computerized materials and the documents that were seized from the law firm, or from its archives. I particularly object to the retention, review and copying of those materials that were seized from either location but were not explicitly within the parameters of Attachment F.
You have informed me today that the government retains, intends to review, but has not yet reviewed, the computer materials that were seized from the law firm. You have also informed me that the government was reviewing, copying and Bates-stamping the papers and documents that were seized from both the law firm and the archives.
I request that the government reconsider its current position that it has the authority to review the entirety of the computerized data without the participation of defense counsel and/or a United States Magistrate or Judge, or a Master. As I have informed you, contained within the computer hard drives and disks are the files of past and present clients of the law firm of Moran & Gold. Additionally, contained within the files are work product to which the work product privileges of Mr. Moran and Mr. Kerr attach.
Each computer file has independent and severable privacy interests. I request that before any agent, prosecutor, or employee of the Department of Justice reviews the computer disks, that a separate demonstration of probable cause, if it exists, be made to a judicial officer as to the government's basis to believe that the files of clients not identified in Attachment F contain documents or evidence material to and within the scope of the objects of the search warrant. I request that this proffer of probable cause be done independently as to each and every file the government intends to review. Absent an agreement to this procedure, I would request that the government agree to defer any review of the computerized material until such review is authorized by a judicial officer after an adversarial hearing. I am preparing and will file no later than Monday, September 19, 1994, an equitable complaint for return of property, for temporary restraining order, and for injunctive relief which will, in part, request the return of the computer hardware and software and/or the enjoining of the government's review of the computerized data under the procedures presently contemplated.
You have informed me that the government does not intend to begin this review until September 19 and I would seek your agreement to defer it until after a court can review the complaint that I intend to file on behalf of Moran &
Gold. . . .
If your initial contacts with the government evince intransigence on its part, you should begin, as expeditiously as possible, to prepare an equitable action for filing, while you continue your efforts to reach some acceptable accord with the government. At the same time, clients whose files, or documents relating to whom, have been seized should be promptly notified and, if appropriate, encouraged to intervene in the equitable action when it is filed. Obviously, the more quickly the government intends to proceed in its review, the more quickly must judicial intervention be sought. At the same time as the equitable action is filed, you should invoke whatever procedures are prescribed in the district for obtaining a temporary restraining order hearing on an emergency basis.
The Complaint for Equitable Relief
Although Fed. R. Crim. P. 41(e) speaks in terms of a motion for return of property,4 the action should be commenced as a civil complaint in equity when there are no criminal proceedings then pending against the moving party.5 Because courts have generally discussed such equitable actions by reference to Rule 41(e), this article on occasion uses "Rule 41(e) action," or the like, as a shorthand for the complaint in equity invoking the "anomalous" jurisdiction of the district court, which is the proper procedure for seeking to obtain prompt judicial review and intervention where no indictment has yet been returned.6 If a motion procedure is utilized in cases in which no criminal action is pending, it will likely be dismissed. While the relief to be sought will, of course, need to be tailored to the circumstances of your particular case, you should request that the court:
(1) exercise its jurisdiction over the subject matter of the complaint;
(2) order that the plaintiffs be provided with copies of any of the documents pertaining to the search with which they have not already been provided, for example, the affidavit submitted in support of the application for the search warrant;7
(3) order that the government immediately cease any and all inspection and copying of the seized materials pending the resolution of the merits of the action;
(4) order that the materials seized during the search be immediately returned to the plaintiffs, or, alternately,
(5) enter a temporary restraining order, followed by a temporary and then a permanent injunction, ordering that the government (a) immediately cease its review of the seized materials, (b) place them under seal, and (c) immediately transfer possession of the seized materials, as well as any and all copies of them which may have been made, to the Magistrate who issued the search warrant or to a Special Master appointed by the court for a determination of which materials are encompassed within the attorney-client and/or work product privileges.
It is the first of these requests -- that the court assume jurisdiction over the matter -- which presents the most formidable obstacle to relief. Courts have cautioned ad nauseam that district courts should exercise their equitable jurisdiction, sometimes referred to as their "anomalous jurisdiction,"8 sparingly and only in exceptional cases.9 Where such actions are not tied to a pending criminal case, courts have uniformly required that the complaint demonstrate the plaintiff's entitlement to relief based upon the standard prerequisites for the assertion of equitable jurisdiction -- irreparable injury and the absence of an adequate remedy at law.10 In addition, most courts require that the complaint demonstrate that the government's conduct displayed a "callous disregard" for the plaintiff's rights.11 While a memorandum of law addressed to the plaintiff's entitlement to relief can, and should, be filed with the complaint, it is imperative that the complaint itself demonstrate on its face the existence of the essential jurisdictional prerequisites.
In addition to Fourth Amendment defects in the warrant and in the manner in which the searches and seizures were conducted in your particular case, the government's disregard of the attorney-client and/or work product privileges during and after the searches and seizures in question provides a substantial basis for showing "callous disregard." To this end, you may wish to set forth in the complaint the post-seizure efforts you made to acquaint the government with the privilege issues at stake and to seek its voluntary agreement to procedures which would safeguard the attorney-client and/or work product privileges from governmental intrusion. You should also consider appending, as exhibits to the complaint, copies of your post-seizure correspondence with the government to underscore for the court the seriousness of the privilege issues, the reasonableness of your requests, and the contrasting unreasonableness of the government.
Although courts have rather uniformly declined to imbue the law office search context with any especial Fourth Amendment significance, many courts have recognized that "special care" must be taken during and after a law office search to avoid unnecessary intrusion upon privileged attorney-client communications.12 While the "special care" requirement may not create a different standard by which the lawfulness of law office searches is to be gauged, it should demand, at a minimum, that the government incorporate in its search warrant application, or that the issuing Magistrate order procedures to govern the search and review methodology which will ensure the least possible intrusion into protected areas. For example, in In re Grand Jury Proceedings Dated December 10, 1987, 13 the Court described the procedures employed during the execution of a law office search warrant as "a model of government sensitivity to the special privacy interests that are implicated when a law firm's files must be searched":
From the time the warrants were requested, the officers took considerable care in minimizing the intrusion into the privacy of the . . . law firm. The government intentionally timed the search for a time of day when it would least disrupt the law firm's court activities. The government also suggested to the issuing court that it impose any special restrictions on the execution of the warrants it deemed appropriate in light of the fact that the files in a law office would be searched.
The execution of the warrants, likewise, shows considerable concern for the privacy interests of the law firm and its clients. At the main office, the agents delayed the search while law firm attorneys negotiated with the United States Attorney as to the best way to meet the government's need for these documents. An agreement was reached that the officers would not conduct a search of the files. Instead, law firm personnel searched the files and identified the relevant documents. These documents were sealed and turned over to the district court.
At the satellite office, the officers seized the files bearing the names of the persons identified in the warrant, without reviewing the contents. These documents were sealed and delivered to the district court.14
In National City Trading Corp v. United States,15 the court commented, in conjunction with its discussion regarding the necessity to protect against unwarranted intrusion into privileged attorney-client communications in the execution of law office search warrants, that
being aware of the "grave dangers" inherent in executing a warrant authorizing a search and seizure of papers. . .we note with approval the care taken by the government in the search involved here. That care was evidenced not only by Agent Mackey's memorandum of instructions and by the directions of the Assistant United States Attorney, but also by the fact that the agents did not search [the attorney's] office until he was present, they did not examine closed files, and they sealed the "legal" file seized. Such self-regulatory care is conduct highly becoming to the government; some would suggest that these police made rules go to the heart of the Fourth
Amendment. . . .16
Similarly, in In re Impounded Case (Law Firm),17 "in recognition of the special concern for privacy interests in this case in which a search and seizure of certain documents may intrude upon confidential relationships existing between attorneys in the subject firm and the firm's clients,"18 the issuing Magistrate imposed a number of limiting conditions on the search and seizure, including instructions as to how the files were to be scrutinized, ordering that only files bearing certain particularly described identifying markings on their exterior could be seized, and, most critically, ordering that the government make no inspection of the seized files pending further order of the court after notice to the law firm and further proceedings.19
The court concluded:
[W]e hold that the district court erred in finding the warrant overbroad. In so holding, we are cognizant of the concern that some of the items seized might contain privileged information. We are satisfied that the attorney-client privilege is sufficiently protected by the procedure established by the Magistrate requiring that the government obtain leave of court before examining any seized items. Furthermore, we believe that this procedure will provide assurance that disclosure will be limited to those materials sought by the government (emphasis added).20
In DeMassa v. Nunez,21 the law office search was, on the order of the issuing Magistrate, supervised by a Special Master appointed for that purpose. The Special Master, and not the agents, inspected the client files and determined which were subject to seizure and which were not; where he was uncertain, he sealed the file for further review by the Magistrate.22 Moreover, the attorney was provided with a copy of the paragraph of the affidavit particularly describing the items subject to seizure and was present during this review and able to interpose objections before the files were turned over to the government.23
At the other end of the spectrum lies Klitzman, Klitzman & Gallagher v. Krut:24
No one can deny that the government's action in this case completely disregarded any concept of the attorney-client privilege. The materials the postal inspectors searched for and seized pursuant to the warrants constituted the existing records of an entire law practice. The government made no attempt to limit the seizure to files of clients who may have alleged that their medical bills were overstated or to materials involving the medical personnel allegedly involved in the fraudulent scheme under investigation. Rather, this government rampage potentially or actually invaded the privacy of every client of the Klitzman firm. The government well knew, prior to the search, that the client files contained privileged communications, yet the government took not one step to minimize the extent of the search or to prevent the invasion of the client's privacy guaranteed by the attorney-client privilege.
However devoid of professionalism the irresponsible actions of the postal inspectors were - and we find this lack of professionalism to be profound - we are even more distressed by the actions of the United States Attorney from the District of New Jersey. That office affixed its imprimatur of approval to a rampant trampling of the attorney-client privilege and, equally important, the work product doctrine (emphasis added).25
Based upon this "rampant trampling," the Klitzman court ordered that all files be returned to the law firm and set forth procedures through which the government might seek to obtain documents properly subject to seizure, suggesting the appointment of a Special Master to review in camera any materials to the production of which the law firm objected.26
The recent Department of Justice Policy Statement regarding law office searches refers only to the necessity for "procedures . . . designed to ensure that privileged materials are not improperly viewed, seized or retained during the course of the search."27 It does not, however, prescribe or recommend any procedures in particular, other than that the search be conducted by a "privilege team" which is not to disclose any information to the "prosecution team" until the attorney in charge of the privilege team gives his okay. Whatever protection this mandate of the Policy Statement provides for the attorney, it does nothing to safeguard -- indeed, it barely recognizes -- the interests of the clients.
Given the ample precedent stressing the need for caution and restraint in law office searches, and describing recommended procedures to prevent unwarranted intrusions upon the attorney-client privilege, search and review procedures which do not display the requisite sensitivity to the demands of the attorney-client and/or work product privileges can rightly be condemned as displaying a "callous disregard" for the crucial protections embodied in these privileges.
Need for Return of Seized Materials and Irreparable Injury
While an interest in, and need for the return of, the seized materials is a threshold requirement for the availability of pre-indictment equitable relief, it will not generally suffice to allege merely the substantial and adverse effect that deprivation of the seized documents, software, and computer operating systems would inevitably have upon the firm's ability to serve the interests of its clients and to continue to function as an operating law firm. Such averments may demonstrate "need" for the documents,28 but the inability of the firm and its attorneys to work has not generally been regarded as irreparable injury, because the prompt return of copies of the seized documents and computerized data will largely alleviate this form of injury.
The return of copies will not, however, avert the irreparable injury inherent in the government's unilateral and intentional abrogation of the attorney-client and work product privileges through in-house privilege review. The privilege is no less violated because the review is conducted by a "taint team" rather than the "prosecution team." The privilege protects its holder from any governmental intrusion, absent a judicial determination that an exception to the attorney-client privilege permits scrutiny of the documents. It is herein that the irreparable injury and, concomitantly, the lack of an adequate remedy at law, lies in the context of the law office search and seizures of privileged materials.
It will be important to stress to the court the principles underlying the attorney-client privilege and the extent to which any executive branch review undermines these principles. "It is axiomatic that the attorney-client privilege confers upon the client an expectation of privacy in his or her confidential communications with the attorney."29 Not only may an attorney assert the privilege on behalf of his client, he is ethically obligated to do so.30 The attorney-client privilege is not only "the oldest of the privileges for confidential communications known to the common law,"31 but it is also one which plays a crucial role in the administration of justice. The attorney-client privilege embodies the recognition that our system of justice -- both civil and criminal -- cannot function unless clients feel free to confide in their attorneys all the information essential to effective representation by counsel of the client's cause.32 The purpose of the privilege is:
to encourage full and frank communication between attorneys and their clients and thereby promote broader public interest in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyers' being fully informed by the client.33
Moreover, the attorney-client privilege is an inextricable component of the Sixth Amendment right to the effective assistance of counsel and is protected from governmental invasion not only by the doctrines underlying the privilege but also by the Sixth Amendment itself.34
Under the Sixth Amendment, a criminal defendant is entitled to effective assistance of counsel. Unless a client can frankly and openly communicate with his lawyer and his lawyer can prepare a defense with some degree of privacy, the lawyer cannot render effective legal assistance. . . . These protections -- the attorney-client privilege, the obligation of confidentiality, the work product doctrine, and the right to counsel -- are designed to achieve and maintain conditions that are considered essential to the proper functioning of the attorney-client relationship. In turn, these protections preserve the attorney's role in the administration of justice. The prospect of the law office search as a legitimate tool of law enforcement poses a severe threat to these doctrines and, more importantly, to the underlying values they promote (emphasis in original).35
A similar threat is posed by governmental intrusion into attorney work product:
Although the work product doctrine most frequently is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital. The interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case.36
Just as the legal system cannot function properly if clients do not feel free to confide necessary information in their attorneys, the attorney cannot provide adequate representation if he does not feel safe in committing to paper his interview notes, thoughts, ideas, plans and strategies relative to the client's case.
In performing his various duties . . . it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests.37
Moreover, not only will the attorney's ability to provide constitutionally adequate representation be fatally compromised if he must forego the most basic tools of preparation -- for example, note-taking -- rather than risk their falling into the hands of the government, but also, and perhaps most critically, if a client knows (or believes) that any notes the attorney makes of information imparted by him may be subject to governmental seizure, even years later, for reasons which have no relationship to him or to his case, he may be understandably loath to confide in his attorney. Accordingly,
[p]erhaps the most serious consequence of the law office search stems from the "chilling effect" it is likely to exert on client communications and attorney trial preparation. The client probably will be less inclined to discuss his legal problems fully and freely with counsel if he is aware that the police, by obtaining a warrant to search his attorney's office, might examine any of his own or his lawyer's communications or thoughts committed to writing. Moreover, the effect scarcely would be restricted to those attorneys whose offices have been or are likely to be targets of searches since "[i]n the area of searches and seizures, fears are almost as important as realities."38
An attorney seeking relief under Rule 41(e), therefore, "needs" the return of the seized materials not only so that he can continue to practice law, but also so he may fulfill his critically important ethical obligation to protect the confidences and secrets of his clients. The injury which will be suffered both by attorney and client if the government's invasion of the attorney-client and/or work product privilege is left unchecked will, indeed, be irreparable.
Lack of Adequate Remedy at Law
The lack of an adequate remedy at law is a corollary of the irreparable injury requirement. Simply put, there is no adequate remedy at law if irreparable injury will occur while the plaintiff awaits legal redress. Such is certainly the case where the government is invading, or is about to invade, the attorney-client and/or work product privilege.
The government's standard response in such cases is to argue that the opportunity to litigate a motion to suppress in the criminal proceeding when and if your attorney/client is indicted will provide an adequate remedy at law. True as this might be in some cases where only Fourth Amendment issues are at stake, potential future suppression after the prosecutorial forces of the government have reviewed private and privileged materials is not an adequate remedy. The question is not just whether such information may be used in evidence but whether any agent of the government may even look at it. Moreover, clients whose files have been seized may never have another opportunity to seek the court's protection of their interests.
Should you meet with governmental insistence that the Fourth Amendment issues can be litigated in a motion to suppress filed after indictment, and should the court appear sympathetic to this idea, you may want to consider, after you have an order exercising the court's jurisdiction over the merits of the complaint, offering to hold the litigation of Fourth Amendment issues in abeyance while the court focuses on the privilege issues, unless the Fourth Amendment violations are particularly egregious and the probability of success on the merits high or unless circumstances unique to your case require immediate resolution of the Fourth Amendment issues.
Neutral Judicial Review
The district court's power to order that the government cease forthwith its inspection, examination, review, and copying of the seized materials, and immediately place all such materials, along with any copies or lists or schedules of such materials already made, under seal pending further order of the court is an inherent component of its equitable jurisdiction under Rule 41(e):
We consider the prayers for injunctive relief to prevent examining, analyzing, scheduling, or copying of the documents as an integral part of the plaintiff's motion for return of property. We have indicated previously that a plaintiff in a civil action for return of property has a sufficient proprietary interest in copies of documents which have been seized to demand their return as well as the return of the originals. . . . It follows that one entitled to the return of original documents is entitled to their return prior to and not after examination or reproduction by government agents (emphasis added).39
The critically important interests protected by the attorney-client and work product privileges can be preserved only if the seized materials are examined by a neutral judicial officer, or by a Special Master appointed for this purpose, to determine which materials are or are not encompassed within the privileges. Such a safeguard is essential, as a number of courts have recognized.40
The government will no doubt contend that its separation of "taint team" from "prosecution team" provides adequate protection for the privileges. However, once such review is performed -- whether by "taint team" or "prosecution team" -- the protections afforded by the privilege are irretrievably lost. That privileged information may not be passed on to the prosecution team does nothing to preserve -- or even acknowledge -- the interests of the firm's clients in safeguarding the confidentiality of their communications from intrusion by any government agent. It is a matter of complete indifference to the clients whether their files are read by a "taint team" or by a "prosecution team" -- they have a right to expect no review absent judicial order. Moreover, in the context of wholesale seizures of privileged materials, "taint teams" and "Chinese Walls" are chimerical, at best.
[T]his court notes that reliance on the implementation of a Chinese Wall, especially in the context of a criminal prosecution, is highly questionable, and should be discouraged. The appearance of Justice must be served, as well as the interests of Justice. It is a great leap of faith to expect that members of the general public would believe any such Chinese Wall would be impenetrable; this notwithstanding our own trust in the honor of an AUSA. Furthermore, in a case such as this, the Chinese Wall attorney to perform the search required the physical assistance of agents, laborers, truckmen and others not bound by the ethical considerations which affect a lawyer. Those on the Mongol side of the Wall may well access the same information from other sources, and have difficulty convincing a defendant or the public that the information did not pass over or through the Wall.41
In the Moran & Gold case, Judge Hoeveler ordered the appointment of a Special Master and prescribed procedures through which contested documents would be identified and the privilege issues litigated.
The Department of Justice Policy Statement fails to mandate that a judicial officer or Special Master review the seized materials, requiring instead only advance discussion regarding "[w]hether all documents will be submitted to a judicial officer or Special Master or only those which a privilege team has determined to be arguably privileged or arguably subject to an exception to the privilege" (emphasis added).42 These guidelines, however, fail to provide guidance as to how this critical question should be determined.
Given the interests at stake, it has long been established that it is the province of the judiciary -- and not of the government -- to review documents or other materials to determine whether their contents are embraced within the attorney-client and/or work product privilege and, if so, whether the privilege has been waived or otherwise vitiated.43 Such inquiry requires that a judicial officer (or a Special Master designated by the judicial officer), through a process which will provide the plaintiff with an opportunity to demonstrate to the court the privileged nature of the materials, determine (a) whether the materials are encompassed within one or both of these privileges, and (b) whether the government has adequately proffered proof of an exception to the privileges.44 The plaintiff must be provided an opportunity to demonstrate to the court the inapplicability of the crime-fraud exception.45 Moreover, such review must be conducted on a document by document basis, and not simply client by client, as "it is generally the context, rather than the content, of a communication that allows invocation of the attorney-client privilege."46
In addition, if the government contends that the crime-fraud exception vitiates the attorney-client privilege, the attorney-client and work product privileges must be analyzed separately. Because the work product privilege belongs to both the attorney and the client, the applicability of an exception to the attorney-client privilege does not necessarily also defeat the attorney's work product privilege if the attorney was unaware that the client had used his services to advance a criminal scheme.47
Several issues will arise pertaining to the appointment of a Special Master to conduct the privilege review, which is the course which the court may well choose if the seizures are at all voluminous. The first question which will present itself is the question of who the Special Master should be. You should expressly request that the person appointed be someone knowledgeable in the field of the criminal law. The second question is who should pay for the Special Master. Since the government should have established a procedure for neutral privilege review in the first instance rather than insisting upon its own prerogatives, you should argue that this expense should rightly fall upon the government.
In the Moran case, Judge Hoeveler ordered the government to pay for the Special Master's time and expenses. This order was, however, entered in the criminal case after Moran was indicted. The issue of which party should bear these costs at the pre-indictment stage remains an open question.
The most critical question will, however, be the procedures through which the review will be conducted. For example, in the Moran & Gold search case, the government ultimately agreed to the appointment of a Special Master but requested that independent Department of Justice attorneys be permitted to "assist" him in his review, asserting that the voluminousness of the seizures was such that the process of Special Master review would be too expensive and too time-consuming without its "help." Should you be confronted with such a request in your case, you should emphatically decline the government's offer.
The review process may perhaps go faster and cost less if government attorneys "assist" the Special Master, but interests far more important than expediency and cost-effectiveness are at stake. If government attorneys are permitted to "assist" the Special Master in his initial or final review of the documents and computer data seized to determine issues of privilege, then the very purpose underlying the appointment of a Special Master -- to ensure that confidential, private and/or privileged materials are scrutinized only by a neutral third party and are not turned over to the government until a neutral judicial officer has resolved the sensitive and complex issues surrounding the attorney-client privilege -- will be substantially undermined.
You should also ask that the court, in its order appointing a Special Master, place restrictions upon ex parte submissions by the government, for example, by mandating that (1) ex parte submissions be permitted only if the government demonstrates, as to a particular document or communication, that compelling circumstances so require, and (2) that the ultimate questions of whether the documents and/or data seized are protected from disclosure to the government by the attorney-client privilege are determined through adversary proceedings in which the plaintiff has an opportunity to be heard. "Ex parte communications generally are disfavored because they conflict with a fundamental precept of our system of justice: a 'fair hearing' requires 'a reasonable opportunity to know the claims of the opposing party and to meet them.'"48
While the Supreme Court concluded in United States v. Zolin49 that the government could make ex parte its threshold submissions as to the first step of the Zolin procedure -- the "showing of a factual basis adequate to support a good faith belief by a reasonable person . . . that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies,"50 this stage of the process is inapplicable where it has already been determined, by agreement of the parties or by court order at the request of the plaintiff, that the privilege review will be conducted by a judicial officer or a Special Master. The issue in this context focuses on the next stage of the process - once the materials have been reviewed in camera, through what procedure should the question whether the materials are protected from disclosure by the attorney-client privilege be determined?
The Court in Haines v. Liggett Group, Inc.,51 directly confronted this issue. The court first noted the critical distinction between the in camera inspection procedures contemplated by the threshold Zolin procedure and the ultimate determination of whether the attorney-client privilege should remain intact:
[T]he objectives of the two proceedings are completely different. One merely seeks in camera examination of documents by the court; this is a comparatively nondispositive way station. The other seeks to break the seal of a highly protected privilege.52
The court concluded that the very different interests at stake at the different stages of the process demand very different proceedings:
For in camera inspection it would be sufficient for the district court, in its discretion, to consider only the presentation made by the party challenging the privilege. The court may decide on this submission alone whether a factual basis is presented to support a good faith belief by a reasonable person that the materials may reveal evidence of a crime or fraud.
Deciding whether the crime-fraud exception applies is another matter. If the party seeking to apply the exception has made its initial showing, then a more formal procedure is required than that entitling the plaintiff to in camera review. The importance of the privilege . . . as well as fundamental concepts of due process require that the party defending the privilege be given the opportunity to be heard, by evidence and argument, at the hearing seeking an exception to the privilege. We are concerned that the privilege be given adequate protection, and this can be assured only when the district court undertakes a thorough consideration of the issue, with the assistance of counsel on both sides of the dispute (emphasis added).53
An adequate opportunity to be heard must, of course, include an opportunity to respond to the contentions of the party seeking to vitiate the privilege.
While Haines prescribed an adversary proceeding in all cases, it expressly noted that its discussion was confined to the appropriate procedures to be followed in ascertaining the applicability of the crime-fraud exception in civil cases and intimated no view as to whether the same procedures should be followed in a grand jury context.54 The only additional consideration which would arise when there is an ongoing grand jury investigation is the government's interest in the secrecy of the grand jury process or in an ongoing investigation. However, the order of reference to the Special Master can easily take account of any such concerns by permitting the government to apply to the Special Master for protection of submitted material only if such protection is necessary to safeguard the secrecy of an ongoing investigation. If an indictment has been returned, such grand jury secrecy concerns should be accorded far less deference.
The Supreme Court noted in Zolin that
[a] blanket rule allowing in camera review as a tool for determining the applicability of the crime-fraud exception . . . would place the policy of protecting open and legitimate disclosure between attorneys and clients at undue risk. There is also reason to be concerned about the possible due process implications of routine use of in camera proceedings.55
While Zolin was concerned with the in camera inspection stage and not the ultimate dispute resolution stage, the concerns expressed in Zolin -- which are essentially the same concerns addressed in Haines -- are equally applicable to the latter stage of the process of neutral privilege review, the stage at which the applicability of the crime-fraud exception is determined.
To expedite and focus the review by the judicial officer or Special Master, it will be necessary for your client to review copies of the seized materials -- both documentary and computerized -- and prepare a log of all materials as to which the attorney-client and/or work product privilege is asserted. The log should identify the documents and materials at issue with sufficient particularity that not only will the Magistrate or Master be able to identify them easily but also the government will be adequately informed of the nature of the disputed materials (but not of their content) in order to permit it to litigate the issues before the Magistrate or Master. A necessary corollary of this preliminary step is that the government must be ordered to provide copies of all material seized, including the information contained on computer diskettes or hard drives, so that a fully informed review may be undertaken.56 The offer of such a log will enhance the likelihood that neutral review will be ordered by the court, as it will substantially diminish the time which such review will consume. It will also obviate the need for "assistance" from government attorneys.
There is, however, one potential danger inherent in this process, which emerged in the Moran case. The Department of Justice in that case asserted its intention to turn over the privilege log itself to the prosecution team for possible use at trial as substantive evidence of guilt. You should, therefore, seek to have the court incorporate in its order a prohibition of any such use by the government. The preparation of such a log is "compelled" within the meaning of Simmons v. United States57 because it is essential to the protection of the plaintiff's rights under the Fourth Amendment and to the preservation of the attorney-client and work product privileges. The preparation of such a log may not be regarded as a "voluntary" act because the plaintiff had the "option" of acceding to in-house review by the government. The Rule 41(e) plaintiff may not be penalized because, in order to protect his own rights and privileges and those of his clients, he must describe the seized documents which he claims are protected from governmental intrusion for the purposes of litigating the issues.
If computers or computerized information have been seized,58 you should request that the government conduct its search of any computer generated and stored data for responsive documents only through the use of information retrieval software utilizing a list of search terms subject to the approval of the judicial officer or Special Master. This search should be conducted in the presence of the Special Master, and the government should be ordered not to scroll through or examine in any way the computer generated or stored documents retrieved through this process until the Special Master has determined any and all responsiveness and privilege issues. This is essentially what Judge Hoeveler ordered in the Moran case.
Should the district court refuse to exercise its jurisdiction over the equitable complaint or should it deny the relief sought, its order is immediately appealable "if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant."59 If your attorney/client is indicted during the pendency of the Rule 41(e) action, or while the case is pending on appeal, the appellate court will in all probability reject the appeal for lack of jurisdiction.60 Therefore, you should consider joining as parties plaintiff not only other members of the firm but also clients whose documents have been seized so that an appeal may still lie on behalf of the firm's other attorneys or its clients who are not the subject of criminal investigation and/or prosecution. This will not assure appellate jurisdiction, but you will be able to argue in support of such jurisdiction that there remain parties who have interests in the seized materials which cannot be protected through litigation in the criminal proceeding.
Unfortunately, while the language in DiBella v. United States quoted above would appear to require that an actual criminal prosecution have been commenced by arrest, indictment, or information before the appellate court will be ousted of jurisdiction, several circuits have concluded that an ongoing grand jury investigation of which the Rule 41(e) plaintiff is a target suffices to constitute a prosecution "in esse."61
Other circuits adhere to a bright-line arrest or indictment test.62 If your case arises in one of those circuits in which an ongoing grand jury investigation precludes an appeal of the denial of equitable relief, you may wish to consider filing an appeal in any event, if an appropriate case presents itself, as, given the conflict between the circuits, the issue of the proper interpretation of the DiBella in esse requirement would present a sound basis for seeking Supreme Court review on a petition for writ of certiorari.
Attorneys must at least consider, in light of the government's reliance on search warrants, whether or not the confidences of their clients are better preserved by the return of files to clients following the completion of litigation. Attorneys may also wish to develop routines and practices to carefully compartmentalize client files so that the government will not have any objective predicate from which to argue that it was necessary to search all files in order to determine whether mislabeled files contained documents that were within the scope of the warrant.
The power to determine whether or not to seek evidence through subpoena rather than search warrant is in the hands of the government. Hopefully, vigorous advocacy on behalf of aggrieved attorneys and an increased awareness within the Department of Justice regarding the adverse effects of law office searches may result in fewer such searches and instead a greater reliance on the more discriminating subpoena procedure for the acquisition of the materials to which the government seeks access.
1. United States Attorneys Manual, 9-2.161(b), added affective October 11, 1995. Law office searches in which the attorney is not a subject or target of the investigation continue to be governed by the Privacy Protection Act of 1980, 42 U.S.C. 2000aa-11 and 28 C.F.R. 59.1, et seq. These provisions are considerably more protective of the attorney-client privilege.
2. A Department of Justice attorney was stationed in the public waiting area of the office during the search, but she played little or no role in overseeing the conduct of the searching officers or their wholesale incursion upon privileged materials.
3. The warrant was issued on September 5, 1994. Conducting the search on a Friday left the government with unfettered access to the seized materials over the weekend, during which time the Bates-stamping of the seized documents was begun.
4. Fed R. Crim. P. 41(e) provides:
(e) Motion for Return of Property. A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12.
5. See, e.g., Richey v. Smith, 515 F.2d 1239, 1242 n.5, 1245 (5th Cir. 1975); Matter of Search of 4801 Fyler Ave., 879 F.2d 385, 387 (8th Cir. 1989), cert. denied sub nom. Kiesel Co, Inc. v. Householder, 494 U.S. 1026 (1990); In re Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d 847, 855 (9th Cir. 1991); White Fabricating Co. v. United States, 903 F.2d 404, 408 (6th Cir. 1990); Lord v. Kelley, 223 F. Supp. 684, 688 (D. Mass. 1963), appeal dismissed, 334 F.2d 742 (1st Cir. 1964), cert. denied, 379 U.S. 961 (1965).
The authors are aware of cases in which district courts have rejected pre-indictment Rule 41(e) pleadings styled as motions, so unless you are certain that the district in which you must file will permit a pre-indictment Rule 41(e) action to be filed as a motion, you should prepare your papers with all the requisite formality of a civil complaint and, if possible, obtain the government's agreement to accept service.
6. In the Moran & Gold case, the complaint was, with the government's assent, filed under seal, and all further proceedings were under seal.
7. For an overview of the law pertaining to disclosure of search warrant affidavits, see In re Search of the Eyecare Physicians of America, 910 F. Supp. 414 (N.D. Ill. 1996).
8. Some courts have found this "anomalous jurisdiction" to be predicated upon the district court's inherent power to police the actions of officers of the court. See, e.g., Linn v. Chivatero, 714 F.2d 1278, 1281 (5th Cir. 1983); Hunsucker v. Phinney, 497 F.2d 29, 32, 34 (5th Cir. 1974), cert. denied, 420 U.S. 927 (1975). This "well-established supervisory authority over officers of the court" encompasses the activities not only of the prosecutors but also of the searching agents. Matter of $67,470, 901 F.2d 1540, 1544 (11th Cir. 1990). See, e.g., United States v. Castro, 883 F.2d 1018, 1020 (11th Cir. 1989) ("this independent anomalous jurisdiction extends to federal law enforcement officers who have failed to observe the standards for law enforcement established by federal rules governing searches and seizures").
9. See, e.g., Ramsden v. United States, 2 F.3d 322, 324-25 (9th Cir. 1993), cert. denied, 114 S. Ct. 1624 (1994); Matter of $67,470, 901 F.2d at 1544; Linn v. Chivatero, 714 F.2d at 1281; Hunsucker v. Phinney, 497 F.2d at 32, 34.
10. See, e.g., G.M. Leasing Corp. v. United States, 429 U.S. 338, 359 (1977); Pieper v. United States, 604 F.2d 1131, 1133 (8th Cir. 1979); Richey v. Smith, 515 F.2d at 1243; Ramsden v. United States, 2 F.3d at 325; Matter of 5455 South Yosemite, Englewood, Colo., 897 F.2d 1549, 1556 (10th Cir. 1990); Matter of $64,470, 901 F.2d at 1544-45; Floyd v. United States, 860 F.2d at 999, 1003 (10th Cir. 1988).
11. See, e.g., Ramsden v. United States, 2 F.3d at 325; Richey v. Smith, 515 F.2d at 1243; Linn v. Chivatero, 714 F.2d at 1281; Matter of $67,470, 901 F.2d at 1545; Matter of Search of 4801 Fyler Ave., 879 F.2d at 387; Black Hills Institute v. Department of Justice, 967 F.2d 1237, 1239 (8th Cir. 1992). The Tenth Circuit is the only circuit which has expressly rejected the "callous disregard" requirement; it suffices in the Tenth Circuit to demonstrate that the challenged seizure was illegal. See, e.g., Floyd v. United States, 860 F.2d at 1003; Matter of Search of Kitty's East, 905 F.2d 1367, 1371 (10th Cir. 1990).
12. See, e.g., National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir. 1980); In re Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d 847, 856 (9th Cir. 1991); United States v. Mittelman, 999 F.2d 440, 445 (9th Cir. 1993).
13. 926 F.2d 847 (9th Cir. 1991).
14. Id. at 858.
15. 635 F.2d 1020 (2d Cir. 1980).
16. Id. at 1026.
17. 840 F.2d 196 (3d Cir. 1988).
18. Id. at 199.
19. Id. at 198-99.
20. Id. at 202. See also In re Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d at 857 (noting that the description of the documents to be seized contained in the warrant was sufficiently precise that the searching agents needed do nothing more than look at the name on the file to determine whether it was subject to seizure).
21. 747 F.2d 1283 (9th Cir. 1984), on rehearing, 770 F.2d 1505 (9th Cir. 1985).
22. In United States v. Tamura, 694 F.2d 591 (9th Cir. 1982), the Ninth Circuit suggested procedures to be followed where seizable and nonseizable documents are intermingled, which include sealing the materials for later inspection by a neutral and detached magistrate. Id. at 596 & n.3.
23. DeMassa v. Nunez, 747 F.2d at 1285.
24. 744 F.2d 955 (3d Cir. 1984).
25. Id. at 961.
26. Id. at 962.
27. United States Attorneys Manual, 9-2.161(b).
28. See, e.g., Ramsden v. United States, 2 F.3d at 325.
29. DeMassa v. Nunez, 770 F.2d 1505, 1506 (9th Cir. 1985).
30. See, e.g., Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d at 960-61 ("the canons of ethics make the attorney's common law obligation to maintain the secrecy of his communications with his client a professional mandate"); In re Impounded Case (Law Firm), 879 F.2d 1211, 1213 (3d Cir. 1989) (attorney-client privilege "may . . . and, indeed, generally must, be asserted for the client by the attorney unless the client directs otherwise").
31. United States v. Zolin, 491 U.S. 554, 562 (1989), quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
32. "A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. . . . The observance of the ethical obligation of the lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance." ABA Code of Professional Responsibility, EC 4-1.
33. Upjohn Co. v. United States, 449 U.S. at 389. See, e.g., United States v. Zolin, 491 U.S. at 562; Fisher v. United States, 425 U.S. 391, 403 (1976).
34. See, e.g., United States v. Noriega, 917 F.2d 1543, 1551 n.10 (11th Cir.), cert. denied sub nom. Cable News Network, Inc. v. Noriega, 498 U.S. 976 (1990); United States v. Blasco, 702 F.2d 1315, 1329 (11th Cir.), cert. denied, 464 U.S. 914 (1983).
35. L.H. Bloom, Jr., The Law Office Search: An Emerging Problem and Some Suggested Solutions, 69 Geo. L. J. 1, 16-17 (1980) [hereinafter "The Law Office Search"].
36. United States v. Nobles, 422 U.S. 225, 238 (1975).
37. Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). See, e.g., United States v. Nobles, 422 U.S. at 237-38.
38. The Law Office Search, supra n.35, at 20, quoting Hearings on the Citizens Privacy Protection Act Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 95th Cong., 2d Sess. 35 (1978) (statement of Philip B. Heymann, Assistant Attorney General, Criminal Division).
39. Richey v. Smith, 515 F.2d 1239, 1242 n.5 (5th Cir. 1975) (district court entered TRO immediately upon filing of Rule 41(e) motion enjoining agents of the government from examining, analyzing, scheduling or copying seized records and subsequently ordered all records transferred to the court pending determination of complaint).
40. See, e.g., In re Impounded Case (Law Firm), 879 F.2d at 1212 (because of recognized concerns for privacy interests, terms of warrant provided that files were not to be inspected by government without leave of court after notice to attorneys); National City Trading Corp. v. United States, 635 F.2d at 1026 (legal file seized from attorney's office voluntarily sealed by government without inspection); DeMassa v. Nunez, 747 F.2d at 1285 (search supervised and documents reviewed by Special Master prior to disclosure to government). See also Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d at 962 (suggesting use of Special Master to review documents in camera).
41.In re Search Warrant for Law Offices, 153 F.R.D. 55, 59 (S.D.N.Y. 1994).
42. United States Attorneys Manual, 9-2.161(b).
43. See, e.g., United States v. Zolin, supra;
44. See, e.g., United States v. Zolin, supra; In re Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1225 (11th Cir. 1987).
45. See, e.g., United States v. Zolin, supra; Haines v. Liggett Group, 975 F.2d 81, 96-97 (3d Cir. 1992).
46. In re Federal Grand Jury Proceedings, 89-10 (MIA), 938 F.2d 1578, 1582 (11th Cir. 1991). See, e.g., In re Richard Roe, Inc., 68 F.3d 38 (2d Cir. 1995).
47. See, e.g., In re Grand Jury Proceedings, 33 F.3d 342 (4th Cir. 1994); In re Grand Jury Proceedings, 43 F.3d 966 (5th Cir. 1994).
48. In re Paradyne Corp, 803 F.2d 604, 612 (11th Cir. 1986).
49. 491 U.S. 554 (1989).
50. Id. at 572.
51. 975 F.2d 81 (3d Cir. 1992).
52. Id. at 96.
53. Id. at 96-97.
54. Id. at 97 n.8.
55. United States v. Zolin, 491 U.S. at 571.
56. The Justice Department Policy Statement leaves it entirely to the local Assistant United States Attorney whether copies of the seized materials will be provided to the attorney from whose offices they were taken.
57. 390 U.S. 377 (1968). See also United States v. Cretacci, 62 F.3d 307, 311 (9th Cir. 1995), cert. denied, ___U.S.___, 1996 WL 80044 (U.S. June 17, 1996).
58. See Federal Guidelines for Searching and Seizing Computers (July, 1994), published by the Department of Justice Criminal Division Office of Professional Training and Development.
59. DiBella v. United States, 369 U.S. 121, 131-32 (1962). See also G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977).
60. See, e.g., United States v. Search Warrant for 405 N. Wabash, Suite 3109, 736 F.2d 1174, 1175-76 (7th Cir. 1984).
61. See, e.g., Angel-Torres v. United States, 712 F.2d 717, 719 (1st Cir. 1983) (criminal proceeding not "in esse" until criminal process "shifts from an investigatory to an accusatory stage;" had grand jury been empaneled at the time the Rule 41(e) motion was decided, the process would have moved into an accusatory stage, and the order would, therefore, be at least presumptively unappealable); In re Grand Jury Proceedings, 831 F.2d 222, 224 (11th Cir. 1987) (Rule 41(e) denial not appealable where grand jury investigation in progress).
62. See, e.g., Matter of 6455 South Yosemite, Englewood, Colo., 897 F.2d 1549, 1555 (10th Cir. 1990) (DiBella in esse requirement requires arrest or indictment); Sovereign News Co. v. United States, 690 F.2d 569, 571 (6th Cir. 1982) (Rule 41(e) is final, appealable order where no charges have been filed), cert. denied, 464 U.S. 814 (1983); In re Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d 847, 855 (9th Cir. 1991) ("[t]his court has jurisdiction over the denial of such a motion when there are no criminal charges pending against the movant").
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