Completely Sealed Case: Grand Jury Subpoena V. ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE GRAND JURY SUBPOENA, No. 15-35434
JK-15-029,
D.C. No.
3:15-mc-00129-HZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
OPINION
v.
JOHN A. KITZHABER,
Intervenor-Appellant.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted November 2, 2015
Portland, Oregon
Filed July 13, 2016
Before: Raymond C. Fisher, Marsha S. Berzon,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Berzon
2 IN RE GRAND JURY SUBPOENA
SUMMARY*
Grand Jury Subpoena
The panel reversed the district court’s order declining to
quash a grand jury subpoena seeking a broad range of
information from the State of Oregon as part of a federal
investigation into activities of former Governor John
Kitzhaber, and remanded.
For several years before Kitzhaber left office, copies of
his personal emails were archived on Oregon’s computer
servers. The panel agreed with Kitzhaber, an intervenor, that
he had a reasonable expectation of privacy in much of his
personal email (although the Fourth Amendment’s protection
does not extend to any use of a personal email account to
conduct public business), and that the subpoena in this case
— which is not even minimally tailored to the government’s
investigatory goals – is unreasonable and invalid. The panel
held that Kitzhaber may not assert the attorney-client
privilege for his communications, including communications
regarding potential conflicts of interest and ethics violations,
with the State of Oregon’s attorneys. The panel explained
that whatever privilege may protect those communications
belongs to the State of Oregon, not to Kitzhaber as an
individual officeholder in his personal capacity.
The panel remanded with instructions to quash the present
subpoena in its entirety. The panel declined to address in the
first instance issues likely to arise concerning the means of
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
IN RE GRAND JURY SUBPOENA 3
segregating and producing the material requested by a
subpoena tailored in accordance with this opinion.
COUNSEL
Janet Lee Hoffman (argued) and Jennifer E. Roberts, Janet
Hoffman & Associates LLC, Portland, Oregon, for
Intervenor-Appellant.
Kelly A. Zusman (argued) and Scott Bradford, Assistant
United States Attorneys; Billy J. Williams, United States
Attorney; United States Attorney’s Office, Portland, Oregon;
for Plaintiff-Appellee.
OPINION
BERZON, Circuit Judge:
This case arises in the midst of an investigation by the
federal government into activities of the former Governor of
Oregon, John Kitzhaber. A grand jury’s subpoena seeks a
broad range of information from the State of Oregon, much
of which would be available to the general public under
Oregon’s public records laws. But a wide net is susceptible
to snags.
For several years before Kitzhaber left office, copies of
his personal emails were archived on Oregon’s computer
servers. According to Kitzhaber, he was unaware of the
archiving of these emails, which include many private details
unrelated to his official duties regarding him and his family,
as well as private communications with his personal attorneys
4 IN RE GRAND JURY SUBPOENA
and with attorneys for the State of Oregon. Because this
cache would be turned over to the government under the
subpoena, Kitzhaber argues the subpoena is unreasonably
broad, as it violates his Fourth Amendment privacy rights and
invades his attorney-client privilege. Kitzhaber asserts in
particular that the attorney-client privilege protects his
communication with attorneys for the State of Oregon
regarding issues concerning possible conflicts of interest and
ethics violations. The government disclaims any interest in
Kitzhaber’s communications with his personal attorneys but
argues it is otherwise entitled to everything it has requested.
The public’s interest in accountability and transparency
is particularly strong when it comes to the investigation of
elected officials, and grand juries are appropriately accorded
a wide degree of latitude. But we agree with Kitzhaber that
he had a reasonable expectation of privacy in much of his
personal email (although the Fourth Amendment’s protection
does not extend to any use of a personal email account to
conduct public business), and that the subpoena in this case
— which is not even minimally tailored to the government’s
investigatory goals — is unreasonable and invalid. We do
not agree, however, that Kitzhaber may assert the attorney-
client privilege for his communications, including
communications regarding potential conflicts of interest and
ethics violations, with the State of Oregon’s attorneys.
Whatever privilege may protect those communications
belongs to the State of Oregon, not to Kitzhaber as an
individual officeholder in his personal capacity.
I
John Kitzhaber served as Governor of Oregon from 1995
until 2003, and again from 2011 until 2015. During this
IN RE GRAND JURY SUBPOENA 5
second period in office, Kitzhaber declined to use an official
email address provided by the State of Oregon. Instead, he
established an account with the commercial email service
Gmail, which he used for official business. He requested that
the Oregon Department of Administrative Services (DAS)
archive on the state’s servers emails sent to or from this
“official” Gmail address, and DAS complied.
In addition to his official Gmail account, Kitzhaber had a
personal Gmail account and another personal account hosted
at att.net. He checked all of these accounts from the same
computer. According to a member of the Governor’s senior
staff, Kitzhaber commonly used his personal addresses “to
communicate with senior staff for both personal and state
business.”
In February of 2015, Kitzhaber resigned from office,
surrounded by controversy over whether he had used his
position to benefit his fiancée, Cylvia Hayes. See Lee van der
Voo and Kirk Johnson, Governor Leaves Office in Oregon,
Besieged in Crisis, N.Y. Times, Feb. 14, 2015, at A1,
http://www.nytimes.com/2015/02/14/us/kitzhaber-resigns-as-
governor-of-oregon.html. Shortly before Kitzhaber’s
resignation, a federal grand jury issued a subpoena to DAS as
part of an investigation into the Governor’s actions. The
subpoena asked DAS to provide “all information, records,
and documents” going back to January 1, 2009, “relating to”
Kitzhaber, Hayes, and several businesses and other entities.
The subpoena also sought “any and all email communications
from or to, or regarding” seventeen individuals, including
Kitzhaber and Hayes.
After he left office, Kitzhaber intervened in the grand jury
proceedings, filing a motion to quash the subpoena in the
6 IN RE GRAND JURY SUBPOENA
United States District Court for the District of Oregon.
According to Kitzhaber, shortly before resigning he
discovered that DAS had been archiving emails to and from
his personal email accounts on state servers. Kitzhaber
asserted that DAS was not authorized to archive his emails
from his personal addresses, which he says contain a great
deal of private communication, including privileged
communication with his personal attorneys. He challenged
the subpoena on the grounds that it was unreasonably broad;
a violation of his Fourth Amendment rights; and a violation
of attorney-client privilege.
The district court ruled that Kitzhaber’s communication
with his private attorneys over his personal email addresses
was protected by the attorney-client privilege and should not
be disclosed to the grand jury. The court directed the
government to create a “taint/filter team” to segregate the
protected emails from the remaining content generated in
response to the subpoena and prevent the protected content
from reaching the jury. It ruled against Kitzhaber on every
other issue. The court held that third parties to a subpoena,
like Kitzhaber here, may not challenge the burden of
production required to comply with the subpoena. It also
held that any potential Fourth Amendment violation could be
raised only in a suppression motion filed if Kitzhaber ends up
being indicted and brought to trial. And it held that the
attorney-client privilege did not apply to Kitzhaber’s
communication with government attorneys. The court
therefore declined to quash the subpoena. Kitzhaber timely
appealed.
IN RE GRAND JURY SUBPOENA 7
II
Kitzhaber argues that the district court should have
quashed the subpoena in its entirety. We agree.
The subpoena includes emails on his personal accounts
that Kitzhaber reasonably expects to remain private, as they
do not concern public business. (Like the district court, we
proceed on the assumption that Kitzhaber did not authorize
DAS to archive the emails from his personal accounts). The
subpoena does not exclude these communications or
otherwise limit the documents demanded to those within the
scope of the government’s legitimate concern in conducting
a thorough investigation of Kitzhaber’s conduct of official
business. As a result, the subpoena is unreasonably
overbroad — analogous, that is, to a general warrant, which
constitutes an unreasonable search under the Fourth
Amendment. See United States v. Bridges, 344 F.3d 1010,
1016 (9th Cir. 2003). As such, the subpoena, as drafted, may
not be enforced.
A. “The grand jury is, to a degree, an entity independent
of the courts, and both the authority and the obligation of the
courts to control its processes are limited.” In re Grand Jury
Investigation of Hugle, 754 F.2d 863, 864 (9th Cir. 1985).
But the normal rule of noninterference is “not absolute.” Id.
A subpoena is not automatically valid “merely because the
Constitution does not prohibit it and the material [it seeks] is
not privileged.” United States v. Bergeson, 425 F.3d 1221,
1226 (9th Cir. 2005). Rather, courts may “exercise
supervisory power over the grand jury where there is a clear
potential for a violation of the rights either of a witness or of
a nonwitness, if the violation cannot be corrected at a later
stage.” Hugle, 754 F.2d at 864.
8 IN RE GRAND JURY SUBPOENA
Here, there is a clear potential for the violation of
Kitzhaber’s rights. “[A]n order for the production of books
and papers may constitute an unreasonable search and seizure
within the 4th Amendment.” Hale v. Henkel, 201 U.S. 43, 76
(1906), abrogated in part on other grounds by Murphy v.
Waterfront Comm’n of New York Harbor, 378 U.S. 52, 68
(1964). This can be true “whether under a search warrant or
a subpoena duces tecum.” Id.1 When the government crafts
subpoenas, it must “make a reasonable effort to request only
those documents that are relevant and non-privileged,
consistent with the extent of its knowledge about the matter
under investigation.” In re Horn, 976 F.2d 1314, 1318 (9th
Cir. 1992). A subpoena without such tailoring is “equally
indefensible as a search warrant would be if couched in
similar terms.” Hale, 201 U.S. at 77. Thus, where a grand
jury’s subpoena, given its overbreadth, would itself violate
the privacy interests protected by the Fourth Amendment,
“[j]udicial supervision is properly exercised in such cases to
prevent the wrong before it occurs.”2 United States v.
Calandra, 414 U.S. 338, 346 (1974).
1
Recently, the Supreme Court implicitly reaffirmed that subpoenas
trigger Fourth Amendment concerns and may be challenged on Fourth
Amendment grounds. City of Los Angeles, Cal. v. Patel, 135 S. Ct. 2443,
2453 (2015). Patel did not directly involve a challenge to a subpoena.
But it did indicate that a subpoena recipient’s ability to “move to quash [a]
subpoena before any search takes place” is sufficient to protect his or her
Fourth Amendment rights. Id.
2
In contrast, a witness may not refuse to answer questions before a
grand jury on the grounds that they are based on evidence previously
improperly seized. Calandra, 414 U.S. at 351–53. But in that
circumstance, the wrong has already been “fully accomplished” by the
time the witness is called to testify; the exclusionary rule can be invoked
if such evidence is introduced at trial, but is inapplicable in grand jury
proceedings. Id. at 349–54.
 IN RE GRAND JURY SUBPOENA 9
B. The district court concluded otherwise. It was of the
view that it was obliged to enforce the subpoena as long as
there was a “reasonable possibility that the category of
materials the Government seeks will produce information
relevant to the general subject of the grand jury’s
investigation,” citing United States v. R. Enterprises, Inc.,
498 U.S. 292, 301 (1991). Not so.
R. Enterprises held that where “a subpoena is challenged
on relevancy grounds, the motion to quash must be denied
unless the district court determines that there is no reasonable
possibility that the category of materials the Government
seeks will produce information relevant to the general subject
of the grand jury’s investigation.” 498 U.S. at 301. But R.
Enterprises does not suggest that by self-defining the
“category of materials” sought as broadly as possible, the
government insulates its subpoenas from review. Otherwise,
when the government seeks all material of a broad generic
type that a party possesses — every piece of paper in a
corporation’s files, for example, or, as in this case, all of an
individual’s emails over a several year period — a reasonable
possibility that some of that material would be relevant would
suffice to validate the subpoena, no matter how vast its
sweep, and no matter the degree to which the subpoena would
reach private material of no pertinence to the grand jury’s
inquiry.
The reference to “category of materials” in R. Enterprises
confirms that subpoenas typically designate for production a
discrete “category” of materials. Where one does not, and
there is a broad, identifiable “category of materials the
Government seeks [that] will [not] produce information
relevant to the general subject of the grand jury’s
investigation,” id. — here, for example, material about
10 IN RE GRAND JURY SUBPOENA
Governor Kitzhaber’s children or medical care — the
subpoena is unreasonably broad.
Our decisions in In re Horn, 976 F.2d 1314 (9th Cir.
1992), and United States v. Bergeson, 425 F.3d 1221 (9th Cir.
2005), confirm this understanding of R. Enterprises. They
make clear that a subpoena may be quashed when no effort is
made to tailor the request to the investigation, even if some
fraction of the material the subpoena seeks is relevant. See
Bergeson, 425 F.3d at 1225–26; Horn, 976 F.2d at 1318–19.
The government’s subpoena in this case is much broader
than the subpoena we rejected in Horn. In Horn, the
subpoena at issue sought all information regarding the
financial transactions of a lawyer’s clients. 976 F.2d at 1319.
Here, there is no subject matter limitation whatsoever on the
documents sought. The subpoena seeks, among other things,
all of Kitzhaber’s e-mail communication over several years,
with no limitation on the content, senders, or recipients of the
e-mails. As Kitzhaber points out, the subpoena would net, for
instance, “emails between [himself] and his son’s physicians
or teachers.”
Notably, the government attached to the subpoena a non-
exhaustive list of the kinds of documents that might be
included in the data it sought. But the subpoena explicitly did
not limit itself to that material, so that list did not narrow the
scope of the subpoena itself. At the same time, by indicating
the government’s particular investigatory goals, the list
confirms that a narrowing of the subpoena in accord with that
list would not compromise the investigation.
Because the government did not in any manner tailor its
request to relevant material, the subpoena was unreasonably
IN RE GRAND JURY SUBPOENA 11
broad and within the district court’s supervisory power, and
responsibility, to quash.3
C. This conclusion is reinforced by the nature of the
emails caught up in the exceedingly broad subpoena. Stored
in his personal accounts, many of the messages — or so
Kitzhaber avers — do not concern official state business in
any way, and some concern particularly private matters,
including communications about medical issues and
Kitzhaber’s children.
The combination of the subpoena’s vast overbreadth and
inclusion of messages as to which Kitzhaber has a reasonable
expectation of privacy implicates privacy interests similar to
those triggered by the issuance of a general warrant. As
currently framed, the subpoena will, if complied with, allow
federal government agents seeking out the messages that bear
relevance to their investigation to peruse all manner of private
communications that do not. See generally United States v.
Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176 (9th
Cir. 2010) (en banc).
We have previously held that email should be treated like
physical mail for purposes of determining whether an
individual has a reasonable expectation of privacy in its
content. United States v. Forrester, 512 F.3d 500, 511 (9th
3
Kitzhaber also argues the subpoena should be quashed as unreasonable
under Federal Rule of Criminal Procedure 17(c)(2), which states that “[o]n
motion made promptly, the court may quash or modify the subpoena if
compliance would be unreasonable or oppressive.” It is not immediately
clear from Rule 17(c)(2)’s text whether it can be invoked by an
intervening third party to quash a subpoena. We need not reach the issue
of Rule 17(c)(2)’s applicability here, as we hold that the subpoena should
here be quashed under the district court’s general supervisory power.
12 IN RE GRAND JURY SUBPOENA
Cir. 2008). While an email’s addressing information is
visible to third parties and therefore not protected, emails also
contain “content that the sender presumes will be read only
by the intended recipient.” Id.
We have also noted that electronic storage devices such
as laptops “contain the most intimate details of our lives:
financial records, confidential business documents, medical
records and private emails,” and held that “[t]hese records are
expected to be kept private and this expectation is one that
society is prepared to recognize as reasonable.” United States
v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013) (citation
omitted). The Supreme Court, too, has emphasized recently
the ability of digital troves to contain “[t]he sum of an
individual’s private life,” and the corresponding need for our
jurisprudence to reflect the changing technological landscape.
Riley v. California, 134 S. Ct. 2473, 2489 (2014). Personal
email can, and often does, contain all the information once
found in the “papers and effects” mentioned explicitly in the
Fourth Amendment. Kitzhaber thus has a strong claim to a
legitimate expectation of privacy in his personal email, given
the private information it likely contains.
DAS’s current possession of the emails does not vitiate
that claim. “[T]he Fourth Amendment protects people, not
places.” United States v. Davis, 332 F.3d 1163, 1167 (9th
Cir. 2003) (citation omitted). Kitzhaber’s interests therefore
attach to “the thing[s] seized,” not merely to the place where
they are located. Id. As we held in Forrester, emails are to
be treated as closed, addressed packages for expectation-of-
privacy purposes. 512 F.3d at 511. And a person “does not
forfeit [his] expectation of privacy merely because [a private]
container is located in a place that is not controlled
exclusively by the container’s owner.” United States v.
IN RE GRAND JURY SUBPOENA 13
Monghur, 588 F.3d 975, 978 (9th Cir. 2009) (citation
omitted).4
The Fourth Amendment bars searches of closed
containers even if they are not in their owners’ possession.
Davis, 332 F.3d at 1167; United States v. Fultz, 146 F.3d
1102, 1105 (9th Cir. 1998). Where a third party comes into
possession of a closed container accidentally, the Fourth
Amendment bars the government from examining the
contents of the container beyond “the extent that [it] had
already been examined by third parties.” Walter v. United
States, 447 U.S. 649, 656 (1980) (plurality opinion).5
Kitzhaber asserts, and the government does not dispute, that
he and DAS came to an agreement that his personal email
accounts would be segregated on Oregon’s servers and not
distributed “without a court order or other legal process.”
There is no evidence in the record, and no assertion made by
the government, that DAS or anyone else has opened or
examined the contents of the email on Kitzhaber’s personal
accounts. Kitzhaber’s claim to a reasonable expectation of
4
It is true that “a person has no legitimate expectation of privacy in
information he voluntarily turns over to third parties.” Forrester, 512 F.3d
at 509 (quoting Smith v. Maryland, 442 U.S. 735, 743–44 (1979)). In this
circumstance, however, we are assuming, as did the district court, that, as
he maintains, Kitzhaber did not mean to turn his private email over to
DAS.
5
United States v. Joseph distinguished Walter and held that “[f]ederal
examination of evidence in the state’s possession does not constitute an
independent search requiring the execution of a search warrant.” 829 F.2d
724, 728 (9th Cir. 1987). But Joseph “stress[ed] that the records were
seized by the DA’s office pursuant to a valid search warrant.” Id. at 726.
Here, in contrast, no warrant supported the initial archiving of the email.
Walter, which dealt with mail accidentally delivered to a third party, is the
more apposite case. See 447 U.S. at 651.
14 IN RE GRAND JURY SUBPOENA
privacy in the contents of the emails is therefore not
undermined by Oregon’s possession of the emails.
Kitzhaber’s privacy claim lacks force, however, with
respect to any emails transmitted through his personal email
accounts but concerning official business. Oregon’s public
records law, O.R.S. § 192.410 et seq., which applies to “every
state officer,” grants a general right to the public to inspect
“any writing that contains information relating to the conduct
of the public’s business.” §§ 192.410, 192.420. Kitzhaber
has acknowledged that he instructed DAS to archive emails
in his “official” Gmail account to comply with public records
laws. The government has also offered evidence that the
State of Oregon’s training for employees informs them that
emails on personal accounts regarding state business are not
exempt from public records laws.
Consequently, whether or not Kitzhaber had a subjective
expectation of privacy as to emails on his private accounts
relating to official business, any such expectation is not a
reasonable one. “[C]ompliance with state open records laws
. . . bear[s] on the legitimacy of a[] [public] employee’s
privacy expectation.” City of Ontario, Cal. v. Quon, 560 U.S.
746, 758 (2010). While the existence of an open records law
may not be conclusive in all cases, it is conclusive here. The
public interest in open and transparent governance is at its
zenith when it comes to the state’s top elected official and his
communication with senior advisers regarding official
business. Even if state officials expect to evade those laws
through the use of personal email addresses, that expectation
is not a protected privacy interest.
Kitzhaber therefore had a reasonable expectation of
privacy regarding emails on his personal accounts unrelated
IN RE GRAND JURY SUBPOENA 15
to official business. Because the subpoena was in no way
tailored to the investigations being conducted, it included
those purely private emails. Again, the district court had the
supervisory power, and responsibility, to quash the vastly
overbroad subpoena, and thereby prevent the trampling of
Kitzhaber’s reasonable expectation of privacy.
III
Kitzhaber also challenges the subpoena as violating
attorney-client privilege. He claims the privilege protects
both his communications with his personal attorneys and
specific communications with government attorneys
regarding potential conflicts of interest.
Kitzhaber is correct, and the government does not dispute,
that his communication with privately-retained attorneys is
protected by the attorney-client privilege and should not be
turned over to the grand jury. See, e.g., Horn, 976 F.2d at
1318–19. But, for several reasons, we conclude that
Kitzhaber may not invoke the attorney-client privilege for his
communications with government attorneys regarding
conflicts of interests or ethics violations. Whatever privilege
such communications may implicate is held by the State of
Oregon, not Kitzhaber personally.
First, Kitzhaber maintains that the privilege over the
conflict of interest and ethical obligations conversations
should attach to him personally, because any liability
resulting from breaking those obligations would be personal.
The potential for personal liability, Kitzhaber maintains,
should have indicated to the government attorneys he
consulted that he was seeking personal legal advice. Also,
because of the potential for personal liability, Kitzhaber
16 IN RE GRAND JURY SUBPOENA
argues, he himself had a reasonable expectation that his
conversation with government attorneys would be protected
by the attorney-client privilege.
Much uncertainty surrounds the reach of the attorney-
client privilege in the context of investigations into public
officials. See, e.g., In re Grand Jury Investigation, 399 F.3d
527 (2d Cir. 2005); In re Witness Before the Special Grand
Jury 2000-2, 288 F.3d 289 (7th Cir. 2002); In re Lindsey,
158 F.3d 1263 (D.C. Cir. 1998); In re Grand Jury Subpoena
Duces Tecum, 112 F.3d 910 (8th Cir. 1997). That
uncertainty, however, has concerned cases in which an
attorney-client privilege with a government lawyer was
invoked by a governmental entity, or by an individual in his
or her official capacity. Where courts have acknowledged the
attorney-client privilege to apply to conversations between
government officials and government lawyers, they have
construed the privilege to mean that “the Government may
invoke the attorney-client privilege,” not that officeholders
in their personal capacity may invoke the privilege. United
States v. Jicarilla Apache Nation, 564 U.S. 162, 170 (2011)
(emphasis added); see also In re Grand Jury Investigation,
399 F.3d at 534–35 & n.3. In no instance, as far as we are
aware, has a former officeholder successfully claimed that a
government staff lawyer discussing a matter relating to
official business was representing the officeholder personally
during a conversation had while both were government
employees.6
6
A different scenario arises when a government attorney is provided by
the government specifically for the purpose of representing a public
employee sued in her personal capacity. See, e.g., Restatement (Third) of
the Law Governing Lawyers § 74 cmt. d (Am. Law Inst. 2000). In that
situation, where “government attorneys stand in the shoes of private
IN RE GRAND JURY SUBPOENA 17
Moreover, a consultation concerning conflict-of-interest
or ethics laws is a consultation about an office holder’s
official actions and obligations. For example, when a judge
considers whether a statute or code of conduct requires that
she recuse from a case because of personal financial interests
or the involvement of a relative or friend, what is at stake is
precisely how she is to carry out judicial obligations.
Similarly, an executive officer who consults with a
government attorney concerning whether to let a certain
contract go to a person with whom he has business dealings,
or to a relative, is seeking advice about carrying out his
official duties.
Consideration of the possible personal sanctions for non-
compliance with such legal obligations is likely to be an
integral part of such discussions; sanctions are imposed
precisely to induce compliance. But that does not mean that
during those conversations, the government lawyers are
acting as the personal attorneys for the officeholders.
Government lawyers, like the elected officials they assist, are
public servants, and their client is the government, not
officeholders in their personal capacities. “[G]overnment
lawyers have responsibilities and obligations different from
those facing members of the private bar. While the latter are
appropriately concerned first and foremost with protecting
their clients . . . government lawyers have a higher,
competing duty to act in the public interest.” In re Special
Grand Jury, 288 F.3d at 293. The public interest may well
include advising government officials about their ethical
counsel,” In re Lindsey, 158 F.3d at 1269, whether and when the
government employee may invoke the privilege in their individual
capacity may require a different analysis. We express no view of that
scenario here.
18 IN RE GRAND JURY SUBPOENA
duties; that the public’s interest partially overlaps with those
officials’ private interests does not convert government
attorneys into those officials’ private attorneys.
Kitzhaber maintains, however, that officeholders will “be
less likely to engage in full and frank discussions with agency
counsel about the facts underlying a potential conflict” if the
privilege does not attach to officeholders in their personal
capacity. Perhaps so. But the State of Oregon has an
exceedingly strong interest in keeping conversations
concerning conflicts of interests between its lawyers and
other officials confidential to ensure candor, and therefore in
invoking the attorney-client privilege as to such
conversations.7
Further, Kitzhaber could have hired his own lawyer for
consultation about his conflict-of-interest concerns, and
indeed did hire his own lawyer to represent him in an ethics
inquiry. Generally, “[a]n official who fears he or she may
have violated the criminal law and wishes to speak with an
attorney in confidence should speak with a private attorney,
not a government attorney.” In re Grand Jury Subpoena
7
In a letter submitted after oral argument in this case, the State informed
us that it has asserted and continues to assert the attorney-client privilege
in the U.S. Attorney’s investigation. Where government officials assert
the attorney-client privilege during criminal investigations into
government misconduct, the scope of the privilege is not clearly
established. See In re Grand Jury Investigation, 399 F.3d 527 (2d Cir.
2005); In re Witness Before the Special Grand Jury 2000-2, 288 F.3d 289
(7th Cir. 2002); In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998); In re
Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997). We
express no opinion on the proper scope of Oregon’s asserted privilege in
this decision, as the State of Oregon is not a party before us and Kitzhaber
may not invoke the privilege in his personal capacity.
IN RE GRAND JURY SUBPOENA 19
Duces Tecum, 112 F.3d at 921. As to any communications
with a private lawyer, Kitzhaber must “receive[] the full
protection of the attorney-client and work product privileges
in his dealings with personal counsel.” In re Lindsey,
158 F.3d at 1278.
We are thus unpersuaded by Kitzhaber’s arguments that
his conversations with state attorneys regarding state conflict-
of-interest laws are protected by a privilege that he may assert
in his personal capacity. Kitzhaber’s communication with his
private attorneys should receive all the protections normally
afforded by the attorney-client privilege. But he may not
himself invoke the privilege to protect his communication
with attorneys for the State of Oregon.
IV
The parties dispute the proper procedure for assuring
compliance with any limitations on production of documents.
In the district court, Kitzhaber argued that his lawyers should
be able to review his personal emails before they are released
to the government, to determine which were protected by the
attorney-client privilege. The government asked the district
court to review Kitzhaber’s emails in camera. The district
court took a third course — it held that the documents should
be turned over to the government’s “taint/filter team” under
a standard protocol designed to remove any privileged
communication before passing the non-protected information
along to the prosecutorial team.
The district court considered these possible procedures in
the context of the very narrow limitation on production it
recognized — that communications between Kitzhaber and
his private attorneys, but no others, were exempt from
20 IN RE GRAND JURY SUBPOENA
production. But we are remanding with instructions to quash
the government’s present subpoena in its entirety. As a
result, no filtering issues will immediately arise. We therefore
do not address whether the district court’s adoption of the
“taint/filter” team protocol was appropriate for the limited
purpose for which it was imposed.
We fully expect the government will issue a subpoena
tailored in accord with this opinion. If so, issues are likely to
arise concerning the means of segregating and producing the
material requested by such a proper subpoena. But the
parties, and the district court, have had no opportunity to
address the appropriate segregating mechanism for a properly
drawn subpoena. We will not do so in the first instance.
Given the parties’ expressed views, however, a few
comments are in order. With a substantively tailored
subpoena, the problem of separating the messages covered by
the subpoena from those not covered becomes much more
complex than the limited segregation issue addressed by the
district court. It will not be enough simply to look at the
sender or recipient of Kitzhaber’s emails to determine
whether they possibly deal with the subjects covered by the
subpoena. Instead, whoever is doing the sorting will have to
look at and consider in detail the content of the emails.
The situation will be further complicated by the fact that
the documents are in the possession of a third party, the State
of Oregon. Kitzhaber objects to Oregon, another government
entity, combing through his private emails. And the state
undoubtedly would prefer not to do so because of the burden
imposed. Yet, because Oregon possesses the emails, the
usual process, in which the person to whom a subpoena is
directed and his attorney sort through the documents and
IN RE GRAND JURY SUBPOENA 21
produce those called for, has no direct application. Without
limiting the possible procedures for segregating the
documents to be produced, we note that one option, not
mentioned by the parties, would be engaging a neutral third
party to sort Kitzhaber’s emails. See Comprehensive Drug
Testing, 621 F.3d at 1179 (Kozinski, J., concurring).
REVERSED and REMANDED for further proceedings
consistent with this opinion.