In Re: Grand Jury Subpoena ( 2010 )

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
In re: Grand Jury Subpoena ) Miscellaneous No. 10-400
No. 8664653 )
) SEP 2 0 2010
b IEMQ clerk. u.s. m t_r' 1a a k prc
RANDUM GPINION Courtsforttie ?J\si‘t:rtctoiii!o[liimbi'a
This matter comes before the Court on ,-/motion to quash``a grand jury `` `` ``
subpoena duces tecum. The subpoena orders John Doe to tum over a laptop computer, cell
phone, digital camera, and additional data storage devices acquired from his former employer
b ;o his termination. John Doe contends that surrender of these items would
violate his constitutional rights under the Fourth and Fifth Amendments. He further alleges that
the grand jury is engaged in an improper investigation on behalf of the Government, and that the
subpoena is oppressive and unreasonable. He altematively moves the Court to appoint a special
master or magistrate judge to review the requested devices for privileged documents if the Court
upholds the subpoena. Upon consideration of John Doe’s motion [1], the Govemment’s
opposition [2], John Doe’s reply [4], the applicable law, and the record herein, the Court will
deny the motions and order enforcement of the subpoena
I. §ACKGROUND
A. Fgctual Histog;
On December ll, 2009, a District of Columbia grand jury retumed sixteen sealed
indictments charging, among others, movant John Doe with various crimes related to a multi-
million dollar foreign bribery and money laundering scheme.‘ (Government’s Opp’n to Mot. to
Quash l, ECF No. 2 (Gov’t Opp’n).) The Federal Bureau of Investigation (the FBI) arrested
'A grand jury retumed a superseding indictment on April 16, 2010 XXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
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- John Doe and twenty of his alleged co-conspirators on January l8, 2010, (ld. at 2.) At the time
of his arrest, John Doe possessed a Dell laptop computer and an Apple iPhone. (See Reply in
Supp. of Mot. to Quash, Ex. A, ECF No. 4 (Reply).) The FBI neither searched nor seized the
laptop or the phone, and John Doe took both with him upon his release on lbond. (Gov’t Opp’n
2.) On January l9, 2010, the Govemment served Corporation A with a grand jury subpoena
requesting documents related to the company’s historical sales to foreign Govemments. (ld. at 3.)
Corporation A terminated John Doe the following day. (Id.)
Attorneys for the Govemment and Corporation A met several times alter January 19"‘ to
discuss the company’s response to the subpoena. On April 22, 2010, Corporation A informed the
Govemment that responsive documentation may be on John Doe’s company-issued laptop,
which the company believed the FBI had seized on the night of the arrest and John Doe had not
retumed to the company upon his termination (Gov’t Opp’n 3.) Corporation A sent John Doe a
letter through his attomey on May 4, 2010, demanding the retum of various company items,
including: an Apple iPhone, ,_,_ __,. __ _ [the iPhone); a Dell laptop, Service
{the Dell laptop); a digital camera; and various data storage devices, records, and
notes. (Icl., Ex. C.) On May 7, 2010, John Doe’s attomey responded with a counter-demand for
proof of ownership of the listed items. (ld. , Ex. D.) John Doe proposed to purchase the
equipment and provide copies of Corporation A’s documents or altematively to remove
"privileged communications and personal information" from the devices and "provide copies of
[the company]." (Id)z
The Govemment served Corporation A with a second grand jury subpoena on May l9,
zCorporation B is a wholly owned subsidiary of Corporation A. (Gov’t Opp’n 2.)
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\ 2010, requesting electronic devices used by John Doe during his employment with the company,
including the iPhone, the Dell laptop, the digital camera, and the data storage devices. (Id., Ex.
F.) Corporation A sent John Doe a second letter informing him of the subpoena and reiterating
its demand for the above-listed electronic devices on May 28, 2010. (Id., Ex. G.) On June 7,
2010, John Doe’s attomey replied with a second demand for proof of ownership and stated that
he would "not disclose information that is privileged or personal" absent a court order. (Id., Ex.
H.) Corporation A responded to this letter on June 10, 2010, with five attachments showing the
purchase of a Dell laptop and a Skype phone by Corporation B, both of which were delivered to
John Doe. (Ia'., Ex. I.) The Govemment served John Doe, through his attomey, with a third
grand jury subpoena on June 14, 2010, that requested the production of the iPhone, the Dell
laptop, the digital camera, and the data storage devices. (!d., Ex. J.)
B. Mgygnt’s Qlaims and Govemment’s Opposition
John Doe filed the present motion to quash the third subpoena on Jlune 23, 2010. (Mot.
to Quash Subpoena (Mot. Quash).) In this motion he argues that "while the Govemment seeks to
compel production cfa computer and other electronic devices, it obviously seeks documents.”
(ld. at 4.) Based upon this conclusion, John Doe raises four points of objection to the subpoena:
first, it violates his Fitth Amendment right against self-incrimination (id, at 2-4); second, it is an
abuse of grand jury power (z'd. at 8-1 l); third, it is oppressive and unreasonable (id. at 12-15);
fouxth, it violates his Fourth Amendment right against unreasonable search and seizure (id. at l5~
16). John Doe altematively asks that the Court order a review of the devices by a special master
to remove privileged documents if the Court does not quash the subpoena and that the Court
reject the Government’s proposed use of a taint team. (ld. at 4-8).
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The Govemment filed an opposition to John Doe’s motion on July 7, 2010. (Gov’t
Opp’n.) The Govemment contests John Doe’s characterization of the subpoena, stating that it
seeks only "the production of certain devices known to the Government." (ld. at 7-8 (emphasis
in original).) The Govemment challenges all of John Doe’s claims on the merits and additionally
challenges his fourth claim as lacking standing. lt also argues that John Doe’s request for a
special master and challenge to the Govemment taint team are unripe for adjudication John Doe
filed a reply to the Govemment’s objection on July 26, 2010, in which he generally reasserts all
arguments made in his original motion. (Reply.)
!I. LEGAL STANDARD
The public, through the grand jury, generally “has a right to every man’s evidence."
Um'ted States v. Nixon, 418 U.S. 683, 709 (1974) (intemal quotations and citation omitted). Like
a formal criminal investigation, the grand jury may issue subpoenas through the Govemment to
compel witnesses to testify and order the production of evidence. See Uni.ted States v. R. Enters.,
Inc., 498 U.S. 292, 297 (l99l). Unlike a formal criminal prosecution, "the grand jury ‘can
investigate merely on suspicion that the law is being violated, or even just because it wants
assurance that it is not."’ ld. (quoting Unz'ted States v. Morton Salt C0., 338 U.S. 632, 642-643
(1950)). The Supreme Court has made clear "that many of the rules and restrictions that apply at
a trial do not apply in grand jury proceedings . . . [t]his is especially true of evidentiary
restrictions." Ia'. at 298. Accordingly, the Govemment need not justify the issuance of a grand
jury subpoena to a level adequate to establish probable cause, as "the very purpose of requesting
the information is to ascertain whether probable cause exists." Id. at 297.
Although the public "has a right to every man’s evidence," the grand jury’s subpoena
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- power is not without limit. See Nixon, 418 U.S. at 709. The grand jury may not compel
testimony from "those persons protected by a constitutional, common-law, or statutory
privilege." ld. Furthennore, it may not "engage in arbitrary fishing expeditions, nor may they
select targets of investigation out of malice or an intent to harass." R. Enters., Inc., 498 U.S. at
299. The Court may, on motion made, quash or modify a grand jury subpoenas "if compliance
would be unreasonable or oppressive." Fed. R. Crim. P. 17(0)(2). However, "a grand jury
subpoena issued through normal channels is presumed to be reasonable, and the burden of
showing unreasonableness must be on the recipient who seeks to avoid compliance." R. Enters.
Inc., 498 U.S. at 30l. Furtherrnore, the Court must remain mindful of "the public’s interest in
the fair and expeditious administration of the criminal laws." See United States v. Di0nisi0, 410
U.S. l, 17 (l973). "Any holding that would saddle a grand jury with minitrials and preliminary
showings would assuredly impede its investigation and frustrate [that] interest." ld.
III. ANALYSIS
A. oes Not Vi0late John Doe’s Fifth Amendment&'gh§
John Doe argues that "while the Govemment seeks to compel production of a computer
and other electronic devices, it obviously seeks documents." (Mot. Quash 4.) John Doe
therefore equates the subpoena for the electronic devices with a subpoena for the documents
saved on them. (See id.) Based upon this conclusion, he argues that the subpoena violates his 5"‘
amendment right against self-incrimination under the act of production doctrine by compelling
him to "testify" as to the existence of any documents found. (Id. at 2-4). 'I``he Govemment
challenges John Doe’s characterization of the subpoena, stating that it seeks only "the production
of certain electronic devices known to the Govemment," and that it intends to "safeguard the . . .
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» rights of whomever owns the electronic devices." (Govt’ Opp’n 7-8 (emphasis in original).) The
Govemment argues that the surrender of the electronic devices would only testify to the fact that
John Doe does in fact possess them, a fact that he has allegedly conceded already through his
correspondence, and that his Fifch Amendment claim must fail. (Id. at 9.)
l. Applicable Law
The Fifth Amendment reads in pertinent part that "[n]o person shall be compelled in
any criminal case to be a witness against himself." U.S. Const. Amend. V. This protection
"applies only when the accused is compelled to make a Testimonial Comrnunication that is
incriminating" and does not necessarily bar compelled production of all forms of incriminating
evidence. Fisher v. Um'ted States, 425 U.S. 39l, 408 (l976). However, "[t]he act of producing
evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly
aside from the contents of the documents produced. ld. at 4 l 0. "By producing documents in
compliance with a subpoena, the witness . . . admit[s] that the papers existed, were in his
possession or control, and were authentic." Um°ted States v. HubbeIl, 5301 U.S. 27, 37 (2000)
(intemal quotations and citation omitted). The Govemment must have reasonably particular
prior knowledge of the existence and location of the requested items. See United States v. Ponds,
454 F.3d 3l3, 320 (D.C. Cir. 2006). If production of the requested items adds to "the sum total
of the Govemment’s information" regarding the existence and location of those items, the
accused’s act of production shall be considered testimonial, as he would use "the contents of his
own mind" to locate and identify responsive items for the Govemment. See Hubbell, 530 U.S. at
43-44.
2. Analysis
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a. The Subpoena Compels Production of the Devices Only
The Court must first determine what exactly the subpoena asks for, as this detennination
will guide the Court’s analysis of John Doe’s Fifch Amendment claim. John Doe urges the Court
to treat the subpoena of the electronic devices as a subpoena for the documents saved on the data
drives of those devices. (Mot. Quash 4; see also Reply 2.) Although the Govemment does not
deny that documents are its end-goal, it asserts that the challenged subpoena only gives the grand
jury authority to compel production of the physical devices, and it does "not [grant] authority to
review documents that may be on those devices." (Gov’t Opp’n 7.)
The plain wording of the subpoena compels the production of "iteims of property that you
[John Doe] obtained from Corporation A prior to the termination of your employment,"
including the Dell laptop, the iPhone, a digital carnera, and additional data storage devices.’
(Mot. Quash, Ex. A.) The subpoena makes no mention of the data drives on those devices or the
documents saved on those drives. (See id.) John Doe presents no authority that allows the Court
to read a plain request for an electronic device as a request for the documents saved on the
device’s data drive. Indeed, the Court finds support for the opposite proposition that production
of an electronic device - or even the devices’ data drive - is distinct from production of
documents saved on that device or data drive. See, e.g., Turlock v. Freeh,, 275 F.3d 391 , 403 (4"'
Cir. 200l) (consent to search the hard drive of a shared computer by one cohabitant does not give
authorities consent to search the other cohabitants password-protected doeuments); United States
v. Triumph Capital Gr0up, Inc., 2ll F.R.D. 31, 37 (D. Conn. 2002) (subpoena to compel
3John Doe states that the subpoena compels him to appear and testify before the grand jury. This is
incorrect. (See Mot. Quash, Ex. A ("IN LlEU OF APPEARANCE, COMPLlANCE MAY BE MADE BY
MAlLING THE REQUESTED ITEMS....") (capitalization in original).)
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. production of a laptop was distinct from a warrant to search and seize the laptop’s hard drive and
documents).‘ Accordingly, the Court finds no reason to deviate from the plain language of the
subpoena and will read it as a request for the physical devices only.
b. The Subpoena Does Not Compel Testimony
The Govemment contends that it has reasonably particular knowledge of the existence
and current location of the subpoenaed devices based upon the pre-indictment investigation,
(Gov’t Opp’n 12.) The Court agrees. The evidence shows that the grand jury issued the present
subpoena only after attempting to secure the requested devices from Corporation A. (See id., Ex.
F.) As discussed above, Corporation A went through an extensive negotiation process with John
Doe in an attempt to recover its property, during which time the existence of the items requested
in the present subpoena came to light. (See id., Ex. C.) Although John Doe has not explicitly
stated that he possesses the requested devices, the unchallenged facts of this case, along with
John Doe’s statements in the evidence and in his pleadings, make the location of the devices all
but certain. (See id. at 2 (John Doe arrested and released with iPhone anc``l Dell laptop); id. , Ex. D
(John Doe offers to either buy the requested items from Corporation A or remove "privileged
communications and personal information" before retuming them); Mot. Quash 5 (John Doe
states that protected documents "are almost certainly contained on the electronic devices sought
by the Grand Jury").) The Court finds this to be reasonably particular prior knowledge of both
"John Doe challenges this reading of Triumph Capital Group, lnc., stating that "[t]he Court [in Triumph]
found that the subpoena was properly used only because it was necessary to preserve the evidence [on the
computer]." (Rcply 2 n.2.) This is a grossly inaccurate reading of Triumph. The court in Triumph plainly stated
that it upheld the subpoena because "the defendants [] failed to show that the Govemment had an improper purpose
in using the forthwith subpoena." Triumph Capital Gr0up, Inc., 2ll F.R.D. at 54. While the Triumph court
supported its conclusion by discussing the exigent circumstances surrounding the issuance of this subpoena, see id. at
55-56, this was in addition to the fact that the defendants failed to carry their burden to show adequate reason why
the subpoena should be quashed. See id. at 54 (citing to R. Enters., Inc., 498 U.S. at 2912.)
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. the existence and location of the physical devices.
John Doe challenges this conclusion, stating that Corporation A has failed to prove
conclusive ownership of the requested devices and the above statements therefore concede
nothing. (See Reply l4, n.7.) However, the Govemment need not conclusively prove
Corporation A’s ownership in order to justify the subpoena. See Ponds, 454 F.3d at 320. To the
contrary, the movant has the burden to show that the act of producing the requested items would
force him to use "the contents of his own mind" to add to "the sum total of the Govemment’s
inforrnation" before the Court will quash a subpoena. See Fed. R. Crim. P. l7(c); Hubbell, 530
U.S. at 43-44. The Govemment has presented evidence of its reasonably particular knowledge of
the devices’ existence and current location. John Doe’s naked challenge does not undermine this
evidence and does not meet his burden of proof. The Court concludes that John Doe’s
production of the devices would not be testimonial and finds no reason to quash the subpoena on
Fifth Amendment grounds.
B. Ihe_$uhp_t)_€;l_a_isht an Abuse of Grand Jurv Power
John Doe claims the grand jury issued the third subpoena only to aid the Govemment’s
pre-trial investigation against him and that the Court should quash the subpoena as an abuse of
grand jury power. (Mot. Quash 8-l l.) He argues that the Govemment is only seeking evidence
as part of pre-trial discovery as opposed to pre-indictment investigation. (ld. at ll.) He claims
that "given that the Grand Jury has handed up an indictment and a Superseding indictment . . . he
has made a prima facie showing of grand jury abuse[.]" (Id.) He further argues that the fact that
the grand jury issued the subpoena so long after his initial arrests and indictment proves that the
Govemment is using the grand jury as a discovery tool. (Reply ll.) John Doe accordingly
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~ claims that the Govemment has the burden "to rebut this evidence or define the scope of the
abuse." (Mot. Quash ll.) The Govemment argues that John Doe has failed to carry his burden
to rebut the presumption of regularity given to grand jury proceedings with "particularized proof’
of an improper motive. (Gov’t Opp’n 16.) lt specifically challenges John Doe’s contention that
the previous indictments are prima facie proof of abuse, stating that "John Doe cites no law
supporting this extraordinary claim." (ld. at 15.)
l. Agplicable Law
The best purpose of the grand jury is to provide a fair method for iinitiating criminal
proceedings against persons believed to have committed crimes via its power to issue criminal
indictments. Costello v. Uni!ed States, 350 U.S. 359, 362 (1956). The Govemment may not use
it as a tool to "engage in arbitrary fishing expeditions" or to "investigat[e] out of malice or an
intent to harass." See R. Enters., Inc., 498 U.S. at 299. The Court gives grand jury proceedings a
presumption of regularity, and the movant must make a of factual showing of abuse to rebut this
presumption. See Um'ted States v. Johnson, 319 U.S. 503, 513 (l943); see also Um``ted States v.
Mechanik, 475 U.S. 66, 75 (1986) (O’Connor, J., concurring) (presumption of regularity "may be
dispelled only upon particularized proof of irregularities").
2. Analysis
John Doe pleads no facts that even raise suspicion of, much less prove, grand jury abuse.
He indeed fails to cite any case to demonstrate that the two previous indictments against him
make out a prima facie case of abuse, Furthennore, the grand jury is entitled to continue its
criminal investigation and may lawfully issue another superseding indictment. See CosteIIO, 350
U.S. at 362. The Court presumes that the grand jury seeks evidence in furtherance of this pre-
l0
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~ indictment investigation until the movant affirmatively proves otherwise. See Johnson, 319 U.S.
at 5 1 3. The Court finds unpersuasive John Doe’s contention that the lengthy intermediate period
between his arrest and the issuance of the present subpoena demonstrates grand jury abuse. The
Govemment gives a very plausible explanation as to why the grand jury did not issue this
subpoena until almost four months after his arrest. (See Gov’t Opp’n l-5``) (explaining that the
FBI did not have probable cause to seize the devices on the night of John Doe’s arrest and neither
Corporation A nor the Govemment discovered that he still have the devices until April, 201 0).
With no "particularized proof" of abuse, John Doe fails to rebut the presumption of regularity
afforded to the grand jury proceedings. See Mechanik, 475 U.S. at 75 (O"'Connor, J., concurring).
The Court therefore declines to quash the subpoena on this ground.
C. fl he Subpoena ls Neither Ogpressive Nor Unreasonablg
Finally, John Doe urges the Court to quash the subpoena as oppressively overbroad under
Rule l7(c)(2) of the Federal Rules of Criminal Procedure. (Mot. Quash 12.) He additionally
objects to the subpoena under the Fourth Amendment, claiming that its terms constitute an
unreasonable search. (Id. at 15.) He states that the subpoena seeks "eveiry email, photograph,
telephone number, and document on the electronic devices," (id.), fails to specify any category of
documents to be produced, (id. at l4), and does not set a reasonable time period within which it
seeks documents, (id.). He further claims that his long-term possessory interest in the devices
vests him with a legitimate expectation of privacy, (Reply l4), and that his "privacy rights are
being invaded by this all-encompassing dragnet subpoena" and that "personal financial records,
emails to friends and family, and personal mementos" would be seized by its enforcement, (Mot.
Quash 16).
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The Govemment challenges John Doe’s standing to raise his Fourth Amendment
challenge because he has not claimed ownership of nor shown a reasonable privacy expectation
in the subpoenaed devices. (Gov’t Opp’n 20-21 .) lt additionally argues that John Doe has failed
to prove that the subpoena is either oppressive or unreasonable under Rule 17 or the Fourth
Amendment. (Id. at 17, 21-22.) lt reasserts that the subpoena only requests the devices and not
the documents saved on them. (ld. at 17 .) The Govemment further argues that compliance with
the subpoena does not involve a substantial commitment of resources by John Doe, (id. at l8),
does not impose a hardship on him because the Govemment will give him a mirror image of all
saved data, (id. ), requests only objects relevant to the grand jury’s investigation, (id. at 17-1 8),
and cannot be narrowed without hampering the investigation, (id. at 18).
l. Applicable Law
The Court may quash or modify a subpoena if the Court finds tha1; compliance would be
oppressive or unreasonable. Fed. R. Crim. P. l7(c)(2). This includes unreasonable demands for
the production of evidence, as "[t]he Fourth Amendment provides protection against a grand jury
subpoena duces tecum too sweeping in its terms ‘to be regarded as reasonable."’ Dionisio, 410
U.S. at 1 1-12 (quoting Hale v. HenkeI, 201 U.S. 43, 46 (1906)). A properly issued grand jury
subpoena is presumptively valid. R. Enters., Inc., 498 U.S. at 301. The burden of proving
unreasonableness or oppressiveness falls on the movant. See Di0nisi0, 410 U.S. at 16 (grand jury
does not have to make a preliminary showing of reasonableness for evidence or testimony
requested).
inquiries into oppressiveness and unreasonableness are highly factual in nature, and
courts do not apply a universal standard of review to these issues. Both the Govemment and
12
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~John Doe have proposed different - yet substantially similar - standards for this inquiry. (Mot.
Quash 12 (citing United States v. Gurule, 437 F.2d 239, 241 (10th Cir. 19'70)); Gov’t Opp’n 18
(citing 1 Sara Sun Beal, Grand Jury Law and Practice § 6:20 (2d ed. 2001 )).) The Court finds
both sources informative. Based upon a distillation of the analytical fram¢:works from both
sources, the Court will consider the relevance of the objects requested by the subpoena, the
particularity of the request, and the hardship of compliance imposed upon the subpoenaed party.
Compare Gurule, 437 F.2d at 241 , with Beal, supra
2. _A_nalysis
John Doe’s Rule 17 claim suffers from the same fatal flaw as his Fifth Amendment claim,
in that it conflates subpoena of electronic devices with subpoena for the data saved on them. His
arguments as to the relevance, particularity, and hardship caused by the subpoena all focus on the
data and are therefore inapplicable. (See Mot. Quash 12-16.) John Doe therefore fails to carry his
burden to rebut the presumptive validity of the grand jury subpoena. Furtherrnore, the Court finds
persuasive the Govemment’s argument that the subpoena is both relevant and particular, as it
requests electronic devices issued to John Doe by his employer and used by him during a period of
time during which he and other are suspected of engaging in criminal activity. (See Gov’t Opp’n 17-
18.) The Govemment’s offer to provide John Doe a mirror image of all data saved on the devices
alleviates any hardship that he may suffer by parting with the devices. The Court therefore finds the
tenns of the subpoena to be reasonable.
John Doe fails to prove an ownership interest in the requested devices, and he has no
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~ legitimate privacy interest in the devices under the Fourth Amendment.’ In addition, the Court has
already decided that the terms of the subpoena are reasonable pursuant to John Doe’s general Rule
17 objection. His Fourth Amendment claim would fail even if he had clear standing to raise it. The
Court will accordingly deny John Doe’s motion to quash the subpoena and will order his timely
compliance.
D. for Private Privileze Review ls Ripe: Review by a Special
Mgstg[ ls 591 Appropriate in This Case
John Doe altematively requests that the Court appoint a special master or magistrate judge
to review and remove privileged documents from the devices before tuming them over to the
Govemment.° (Reply 7.) He claims that privileged documents "are almost certainly contained on
the electronic devices sought by the Grand Jury." (Mot. Quash 5 .) John Doe asks the Court to reject
the Govemment’s previously-made offer to use a taint team to conduct a privilege review, stating
that the team’s "naturally more restrictive view of privilege will needlessly risk the exposure of
privileged documents." (Mot. Quash 7.) The Govemment argues that neither of these issues are ripe
for review, as the subpoena requests only the physical devices and not the potentially privileged data
$John Doe’s employer - Corporation B - has an Employee Handbook that lays out every employee’s privacy
interest in company property. The l-landbook states: "Corporation B will provide you with the necessary equipment
to do your job. None of this equipment should be used for personal use . . . . Computer equipment, including
laptops, may not be used for personal use . . . E-mail and Intemet usage will be monitored from time to time . . . . All
employees, upon hire, will be required to sign an agreement with Corporation B stating that this policy and
disciplinary action for violations is understood and agreed to." (Gov’t Opp’n, Ex. B.) This policy demonstrates that
an employee such as John Doe has no privacy interest in documents stored on company property, including the
subpoenaed items.
é.lohn Doe originally asked the Court to allow defense counsel to review and segregate privileged
documents before tuming the devices over to the Govemment. (Mot. Quash 8.) The Govemment objects to this
request, stating that John Doe cites no law that would entitle him to such a review and that "the integrity of evidence
sought by the grand jury may be compromised by any attempt by John Doe to provide only select files.“ (Gov’t
Opp’n 14-15.) John Doe tweaks his request in his reply and asks for review by a magistrate judge. (Reply 7.) Both
review by a private expert (defense counsel) and review by a magistratejudge are variants of a special master’s
review, and the Court considers both requests as such.
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- on them. (Gov’t Opp’n 14-15.) The Govemment assures that its taint team procedure will
adequately address John Doe’s privilege concerns when they do become ripe. (ld. at 15.)
1 . Ripeness
a. Applicable Law
"The ripeness doctrine is a justiciability doctrine ‘drawn both from Article III limitations on
judicial power and from prudential reasons for refusing to exercise jur‘isdiction."’ Nat’l Park
Hospitatlity Ass ’n v. Dep ’t of the lnterior, 538 U.S. 803, 807-08 (2003) (quoting Reno v. Cath0lic
Soc. Servs., 509 U.S. 43, 57 n.l8 (1993)). In determining whether an issue is ripe for review, the
Court applies a two part test to analyze: 1) the fitness of the issues for judicial decision; and 2) the
hardship to the parties of withholding court consideration. Nat ’I Treaszlr_y EmpI0yees Uni0n v.
United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996). The Court also considers the basic policy
rationale behind the ripeness doctrine: "Article III courts should not make decisions unless they have
to." See id.
b. Analysis
The Court finds that John Doe’s request for a special master’s review and objection to the
Government’s taint team procedure are both ripe for review, Indeed, the underlying objective of
John Doe’s request is to have privileged documents removed before the electronic devices are
relinquished to the Govemment. (See Mot. Quash 7.) Once the Govemment comes into possession
of the devices, his concems will be moot. He will lose his opportunity to have his request
adjudicated and may accordingly suffer hardship unless he posits the Court hears his concerns now.
The issue presents no fitness problems, as both sides have tendered arguments on the matter. (See
Mot. Quash 7; Gov’t Opp’n 15.) While John Doe’s objection to the Govemment’s taint team
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- procedure may arguably be addressed at a later date, the Court must address this objection before it
can fully consider John Doe’s request for a special master since the taint team is a viable altemative
to review by a special master. Accordingly, the Court will address the merits of both issues.
2. Objection to the Taint Team
a. Applicable Law
The Court has three primary tools at its disposal for separation and review of potentially
privileged documents: in camera review, review by a special master, and review by a Govemment
privilege or "taint" team. The last of these three options is a relatively modern concept that appears
to have evolved as a pragmatic response to the growing problems with electronic discovery.’ Courts
currently disagree over the validity and appropriate use of these Govemment teams. See Um'ted
States v. NeiIl, 952 F. Supp. 834, 840 n.l3 (D.D.C. 1997) (Green, J.) (comparing cases for and
against the use of a filter team). Neither the Court of Appeals for the D.C. Circuit nor this Court
have an established rule that they use to judge the appropriateness of these taint teams. John Doe
asks the Court to follow the lead of United States v. Jackson, No. 07-035, 2007 WL 3230140(D.D.C, October 30, 2007) (Robertson, J.), and adopt the Sixth Circuit’s standard that taint teams
should only be considered in limited circumstances, such as when the Govemment already has
possession of the allegedly privileged documents. (Mot. Quash 6-8); see also In re Grand Jury
Subpoenas, 454 F.3d 51 l (6"‘ Cir. 2006).°
7The earliest proposed use of a filter team of which the Court is aware occurred in 1995. See United States
v. AbbeII, 914 F. Supp. 519 (S.D.Fla. l995). This case and all cases cited in this section involve computers and
electronic discovery.
XJohn Doe challenges the use of the Govemment’s filter teams based upon four factors laid out by Judge
Robenson in Jackson. (Mot. Quash 6~8.) Aside ii'om the fact that the Court believes John Doe has misread Jackson,
the opinion in not binding upon this Coutt. "Ihe Court declines to adopt Jackson for the same reasons it declines to
adopt In re Grand Jury Subp0enas, discussed infra.
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b. Analysis
i. Review of Filter Team Procedure
The Govemment has provided the Court with a proposed procedure by which its taint team
would conduct a privilege review, (Gov’t Opp’n, Ex. E.) Although the exact process differs from
case-to-case, the Government’s proposal here follows a pattern similar to that seen in other cases:
tirst, a "taint team" comprise of attomeys and investigators unrelated to the prosecution of the
underlying matter "wall off" from the prosecution team; second, the privileged party provides the
team with a list of documents and search terms that may contain or relate to privileged subject
matter; third, the filter team segregates all items matching this description and sends a list of the
documents to the party; fourth, the team identities all segregated items which it believes to be
privileged and sends them back to the party; finally, the team notifies the party of its intent to release
to the prosecution team all segregated items that it believes are not privileged; the privileged party
has an opportunity to object before any of these items are released. (See id. ); see also Neill, 952 F.
Supp. at 837; In re Grand Jury Subpoenas, 454 F.3d at 51 7.
ii. Issues Raised by the Sixth Circuit
The Sixth Circuit raises a number of concems with this procedure:
['l``]aint teams present inevitable, and reasonably foreseeable, risks to privilege, for
they have been implicated in the past in leaks of confidential information to
prosecutors . . . lt is reasonable to presume that the Govemment’s taint team might
have a more restrictive view of privilege . . . [b]ut under the taint team procedure,
appellants’ attomeys would have an opportunity to assert privilege only over those
documents which the taint team has identified as being clearly or possibly privileged
. . . we do not see any check in the proposed taint team review procedure against the
possibility that the Govemment’s team might make some false negative
conclusions[.]
In re Grand Jury Subpoenas, 454 F.3d at 523 (emphasis in original). The circuit court accordingly
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»advocates minimal use of taint teams "primarily in limited, exigent circumstances in which
Govemment officials have already obtained the physical control of potentially-privileged doctunents
through exercise of a search warrant." Id. at 522. "[When] the potentially-privileged documents are
already in the Govemment’s possession . . . the use of the taint team . . . constitutes an action
respectful of, rather than injurious to, the protection of privilege." ld. at 522-23,
This Court understands the Sixth Circuit to raise three principle concems with the taint team
procedure. First, the taint team may, purposefully or inadvertently, leak privileged infonnation to
the prosecution team. See id. at 523. Second, the procedure prejudices the party claiming privilege
by providing it inadequate opportunity to raise and defend its claims. See id. Third, the filter
procedure is generally injurious to a party’s privileges See id. at 522. After careful review of these
coneems, the Court will respectfully refuse to adopt the Sixth Circuit’s standard. The Court will
address each concem separately.
iii. A Kastigar Hearing Would Counter the Threat of Leaks by the Taint Team
The first concem is indeed legitimate but is one for which our laws can control, One D.C.
district court holds that "[i]f privileged materials are inadvertently or improperly disclosed [by the
filter team], Kastigar-like hearings may eventually be required." Hiclr.r v. Bush, 452 F. Supp. 2d 88,
103-04 (D.D.C. 2006) (Robenson, J.) (intemal citation omitted). This Court agrees with Judge
Robertson, finding that such hearings provide an appropriate counter-weight to potential harm
caused by leaks from the taint team. In such a hearing the party claiming privilege would have the
initial burden of showing that the prosecutors or investigators outside the taint team came into
contact with privileged information. See Kastigar v. Um'ted States, 406 U.S. 441, 461-62 (l972).
Alter this showing, the burden who shift to the Govemment to affirmatively prove by a
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~ preponderance of the evidence that their witnesses and evidence came from legitimate sources, See
id.; see also UnitedStates v. Norlh, 910 F.2d 843, 872 (D.C. Cir. 1990), vacated on other grounds,
920 F.2d 940, cert. denied, 500 U.S. 941 (l991) (the burden on the Govemment is preponderance
of the evidence). If the Govemment fails to do so, the Court would take appropriate action to
neutralize the harm caused by the alleged leak. See Norlh, 910 F.2d at 868-73 (explaining the
potential remedies after a Kastigar hearing).
This system protects the privileged party in two distinct ways. First, it incentivizes the
Govemment to execute a proper, careful filter procedure in order to avoid leaks of any kind and build
a solid record to present to the Court in the event of a challenge. Second, it gives the privileged party
a variety of remedies in the event of abuse of carelessness in the filtering process, ranging from
exclusion of evidence and witness to dismissal of the indictment. See North, 910 F.2d at 869-73.
Additionally, participation in the procedure would not waive privilege on any information leaked,
because the privileged party’s participation is "compelled" as opposed to "voluntary."° See In re
Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989). While the threat of leaks by the taint team is a
potential danger, the Court believes that the case law cited above mitigates this risk adequately. The
Court accordingly finds this concem an unpersuasive reason to limit the use of the taint team
procedure.
iv. Proper Procedure Neutralizes Prejudice to Party Claiming Privilege
The Sixth Circuit’s second concem is yet another valid one. However, it is a concem that
the Court can neutralize by ensuring that the Govemment employs a carefully tailored procedure,
°The Court does not address whether privilege is waived if the document slips past the taint team due to
poorly crafted search terms by the party claiming privilege.
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- Under the process proposed by the Govemment - the process that the Court wholly expects it to use -
the privileged party will have the opportunity to identify specific documents that he believes are
privileged and to provide search teams to find other potentially privileged documents before the
filtering process begins. (Gov’t Opp’n, Ex. E, 2-3.) This not only gives him the opportunity to flag
entire documents before the Govemment’s review begins but also gives him the ability to dictate the
tenor of the entire process by crafting a careful and thorough list of search terrns. Once the filter
team has segregated all potentially privileged documents, the parties will have an opportunity to
litigate any disputes over which documents are actually privileged. (Gov’t Opp’n Ex. E, 3.) The
Court does not find any obvious prejudice to the privileged party in this procedure. While the Court
recognizes that this may not have been the case in the Sixth Circuit, the opportunity for substantial
involvement by the privileged party in the process proposed here provides the party ample
opportunity to assert and defend its privilege claims. The Court therefore finds the Sixth Circuit’s
second objection inapposite in this case,
v. Taint Teams Are Not injurious to Privilege in General
The Court reads the Sixth Circuit’s third and final objection to be a general conclusion drawn
from its specific findings on the two previous concems. The Court respectfully disagrees with this
conclusion based upon its own findings. When properly executed, the taint team procedure does not
offend the underlying rationale of either privilege doctrine at issue here. The taint team threatens
neither open communication between client and attomey by allowing the prosecutors to discover
"damaging information," see Fisher, 425 U.S. at 403, nor immediate preparation of legal strategy
by allowing the prosecution team to "borrow" the wits of defense counsel, see Hickman v. Taylor,
329 U.S. 495, 515 (1947) (Jackson, J., concurring). The entire point of the procedure is to keep this
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-inforrnation out of the hands of the prosecutors and the investigators. While the specter of
Govemment abuse or neglect looms as a threat to the integrity of this process, federal procedural law
provides appropriate remedies should such threat become a reality. See Kastigar, 406 U.S. at 461-
62.
The Court acknowledges that this process places a burden on the party asserting privilege.
This burden, however, is consistent with the general rule that a party must prove privilege before the
Court will recognize it. See In re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998) (party claiming
privilege must prove elements before the courts will recognize it). Furtherrnore, the Court finds that
any extra burden placed upon the assertion of privilege is justified by the need to strike a balance
with the public’s competing interest "in the fair and expeditious administration of the criminal laws."
See Di0nisi0, 410 U.S. at 17. Based upon these findings, the Court sees no reason circumscribe the
use of Govemment taint teams and will fully consider it when addressing John Doe’s request for a
special master. h
3. Reauest for a Special Master’s Review
a. Applicable Law
As noted earlier the Court has three options for privilege review. The Court may conduct the
review itself in camera. The decision to proceed in camera "rests in the sound discretion of the
district court." See United States v. Zolin, 491 U.S. 554, 572 (1989). The Court may also appoint
a special master to conduct the review. The Court favors this option when the review process
presents logistical difficulties for the Court, such as when numerous documents are involved or
technical expertise is required to conduct the review. See 24 Charles Alan Wright & Kenneth W.
Graham, FederaI Practice and Pr0cedure, § 5507 (West 2010). Finally, the Court may order a
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- Govemment taint team to work with opposing counsel to segregate and filter privileged documents
as discussed above, Although courts have yet to develop a standard for the appropriate use of these
teams, courts appear inclined to use them when the documents at issue are too voluminous or the
task of reviewing them is too complex for a special master to handle effectively. See Hicks, 452 F.
Supp. 2d at 103 n. 12. Similarly, courts disfavor special masters when the underlying action demands
a speedy resolution. See Black v. United States, 172 F.R.D. 51 l, 514, n.4 (S.D. Fla. 1997) (rejecting
a request for a special master and citing to AbbelI, which had been delayed for over two years at the
time due to the special master’s review).
b. Analysis
Both sides acknowledge that a privilege review in this matter will involve some degree of
technical computer expertise. (See Mot. Quash 5 ("[privileged] documents may be fragmented in
unallocated space on the devices . . . ."; Gov’t Opp’n 15 (stating that an attempt to remove files from
the computer may compromise "the integrity of evidence sought by the grand jury").) This alone
persuades that Court that in camera review is inappropriate. The evidence also shows that review
may entail an enormous amount of documentation: the hard drive on the Dell laptop can hold 320
gigabytes of data alone.'° (Gov’t Opp’n, Ex. I, 7.) Although it is possible that the scope of the
review may be much smaller, John Doe gives no clear indication of how many documents may be
at issue. This weighs against the use of a special master. Finally, the fact that a grand jury awaits
information potentially saved on these devices compels the Court to select a method of review that
'°The Court takes judicial notice of the fact that a standard text file typically takes up several hundred
kilobytes of space, while a PDF may take up several mcgabytes. One gigabyte is equal to 1,000 megabytes, while
one megabyte is equal to 1,000 kilobytes. Accordingly, the Dell laptop can potentially hold several hundred
thousand documents.
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' will yield the quickest possible results. The Court believes that the Govemment’ s wealth of resource
and experience as well as its established procedure for handling these types o‘freview render the taint
team the most efficient option. When executed in an appropriate manner, as described above, the
taint team will satisfy the public’s interest in the "expeditions administration of criminal law," see
Dionisio, 410 U.S. at l7, while safeguarding the privilege interests of John Doe and his attomey.
The Court believes that the complexity, volume, and time concems inherent in this matter make
review by a special master inappropriate. The Court will accordingly deny John Doe’s request.
IV. CONCLUSION
For the reasons set forth above, movant John Doe’s motion to quash the grand jury subpoena
will be DENlED. John Doe’s request for a privilege review by a special master will also be
DENIED. The Govemment’s motion to compel compliance will be GRANTED, and movant will
surrender the request devices within ten days of this ruling.
A separate order shall issue this date.
4001/v garland l/@»'ziw». Q/¢,. C~$Q¢~¢W"f<»
pate RoYcE c. LAMBERTH
Chief Judge
United States District Court