United States v. Hill

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Petitioner,
Misc. No. 18-mc-00023 (TSC)
v.
Donna M. Hill,
Respondent.
MEMORANDUM OPINION
Before the court are the United States’ Petition and Amended Petition for Summary
Enforcement of Inspector General Subpoena, and Respondent’s Motion to Quash, or in the
Alternative, for a Protective Order. For the reasons stated below, the court will GRANT in part
and DENY in part the United States’ petitions and Respondent’s motion.
I. BACKGROUND
In January 2018, the United States Department of Justice Office of the Inspector General
(“OIG”) initiated an investigation into alleged misconduct by Federal Bureau of Prisons (“BOP”)
“employees in connection with a BOP contract award.” ECF No. 2-1 (Declaration of Greg
Thompson, “Thompson Decl.”) ¶ 3. Pursuant to this investigation, the OIG requested that
Respondent Donna M. Hill—an Executive Assistant at the BOP—produce the BOP-owned
Samsung mobile telephone (hereinafter, “Samsung phone”) and Microsoft Surface Pro Tablet
(hereinafter, “Microsoft tablet”) issued to her in connection with her employment. Id. ¶¶ 4, 6.
The OIG has reason to believe that these electronic devices contain communications relevant to
its investigation. Id. ¶ 5.
Despite the issuance of two administrative subpoenas requesting the immediate
production of the Samsung phone and Microsoft tablet to the OIG, Respondent refused to
produce the electronic devices, asserting that she was entitled to withhold the devices because
personal information is stored on them. Id. ¶¶ 6, 7, 9, 16. She maintained this position even
after the OIG sent an email to her counsel, explaining that the BOP warned her that she had no
expectation of privacy while operating the electronic devices. See id. ¶ 10–13.
On February 16, 2018, the government filed a Petition for Summary Enforcement of
Inspector General Subpoena, requesting that the court order Respondent to immediately produce
the BOP-owned electronic devices pursuant to the OIG administrative subpoenas. ECF No. 1
(Gov’t Pet.). A week later, the government filed a Motion for Temporary Restraining Order.
ECF No. 2. Under the terms of the government’s proposed temporary restraining order,
Respondent would be required to immediately produce the BOP-issued devices, but the
government would be prohibited from searching the devices until the government’s Petition for
Summary Enforcement was resolved or a search warrant was properly obtained. ECF No. 2-3 at
2. Respondent then filed a Motion to Quash, or in the Alternative, for Protective Order, arguing
that because she has a constitutionally protected right to her personal information on the
electronic devices, she did not have to comply with the OIG’s subpoenas. ECF No. 5
(Respondent Mot.).
On March 16, 2018, this court entered a Temporary Restraining Order, concluding that (1)
the United States was likely to succeed on the merits of its Petition for Summary Enforcement, (2)
Respondent’s continued withholding of the electronic devices would likely result in irreparable
and serious damage to the OIG’s investigation, (3) Respondent’s alleged Fourth Amendment
rights would not be violated as a result of a temporary restraining order because the OIG was
2
temporarily prohibited from searching the devices, and (4) the public interest favored entry of the
Order. ECF No. 7 (TRO) at 3–4. The court ordered Respondent to immediately produce the
Samsung phone and Microsoft tablet to Senior Special Agent Greg Thompson or any other OIG
Special Agent. Id. at 4. The court also ordered the OIG to “refrain from taking any action with
respect to the devices, including any action to physically or remotely search the devices or
otherwise physically or remotely access the devices for any purpose” until further order of the
court or until a search warrant was properly obtained. Id.
On April 27, 2018, the OIG learned that Respondent maintained possession of a third
BOP-issued device—a Blackberry mobile telephone (hereinafter, “Blackberry”). ECF No. 17-1
(Second Supplemental Declaration of Greg Thompson, “Second Suppl. Thompson Decl.”) ¶ 2.
The OIG has reason to believe that the Blackberry also contains communications relevant to its
investigation. Id. ¶ 4. Accordingly, on May 9, 2018, the OIG e-mailed a subpoena to
Respondent’s counsel—whom has maintained possession of the Blackberry since February 14,
2018—requesting production of the Blackberry “FORTHWITH.” Id. ¶¶ 2–3.
Respondent refused to produce the Blackberry absent the OIG’s agreement not to search
it. See ECF No. 19 (Respondent Notice) at 1. Unwilling to enter into such an agreement, the
government filed an Amended Petition for Summary Enforcement of Inspector General Subpoena
and for Expedited Ruling. ECF No. 17 (Gov’t Am. Pet.). In the Amended Petition, the
government asks the court to order Respondent to produce her Blackberry and permit the
government to search all three BOP-issued devices. Id. at 8. The parties rely on the briefing
submitted in support of or in opposition to the government’s initial Petition to Enforce (ECF No.
1) to support and oppose the Amended Petition. See ECF No. 16 (May 22, 2018 Order), see also
Respondent Notice at 1, 3.
3
II. DISCUSSION
The court’s role “in a proceeding to enforce an administrative subpoena is a strictly
limited one.” FTC v. Texaco, Inc., 555 F.2d 862, 871–72 (D.C. Cir. 1977). The court is to
determine whether “‘the inquiry is within the authority of the agency, the demand is not too
indefinite and the information sought is reasonably relevant’” to the agency’s investigation.
United States Int’l Trade Comm’n v. ASAT, Inc., 411 F.3d 245, 253 (D.C. Cir. 2005) (quoting
United States v. Morton Salt Co., 338 U.S. 632, 652 (1950)). The subpoenaed party bears the
burden of showing that the administrative subpoena is unreasonable; a burden “not easily met.”
Texaco, Inc., 555 F.2d at 882.
Respondent does not contest the OIG’s authority to issue the February and May 2018
subpoenas.1 Therefore, the court focuses its analysis on the two remaining requirements of
enforcement: that the requested information not be too indefinite and the information sought be
reasonably relevant to the investigation.
A. The Subpoenas Are Not Too Indefinite
Respondent argues that the subpoenas are too indefinite because they “describe[] a
general investigation into employee misconduct” and “[n]othing more.” Respondent Mot. at 6.
She further argues that the subpoenas fail to reveal whether she “is a ‘subject,’ ‘target,’ or
‘witness’” in the investigation. Id. Because “there are no bounds, no direction and no limits to
1
The Inspector General Act of 1978, 5 U.S.C. app. 3, as amended, authorizes the OIG to
“subpoena the production of all information, documents, reports, answers, records, accounts,
papers, and other data in any medium (including electronically stored information), as well as
any tangible thing and documentary evidence necessary in the performance of the functions
assigned by [the] Act.” 5 U.S.C. app. 3 § 6(a)(4). One of the OIG’s responsibilities is to detect
fraud within the Department of Justice and its various components. See 5 U.S.C. app. 3 § 4(a).
4
the government’s subpoena request[s],” Respondent argues, the subpoenas are unenforceable.
Id. at 6–7. The court disagrees.
The OIG’s subpoena requests are sufficiently defined and limited. They seek the
production of three BOP-owned devices from one employee for one specific investigation: “an
investigation into allegations of misconduct by an employee(s) of the Department of Justice.”
ECF No. 2-2; ECF No. 17-2 at 4. The information sought is limited to information generated on
the three devices. Respondent cites no authority requiring that the subpoena be further limited or
defined.2 Absent such authority, the court is not inclined to require a more detailed subpoena,
especially considering that “administrative investigatory subpoenas must by their very nature be
broad.” United States v. Firestone Tire & Rubber Co., 455 F. Supp. 1072, 1083 (D.D.C. 1978);
see also Texaco, Inc., 555 F.2d at 882 (“There is no doubt that these subpoenas are broad in
scope, but the FTC’s inquiry is a comprehensive one and must be so to serve its purposes.”);
Apodaca, 251 F. Supp. 3d at 11 (“Yet, ‘the boundary [of an investigation] may be defined quite
generally’ for the purposes of determining whether an administrative subpoena must be
enforced.”) (quoting FTC v. Invention Submission Corp., 965 F.2d 1086, 1090 (D.C. Cir. 1992)).
Accordingly, the court finds that the OIG’s demands are not too indefinite.
2
Respondent argues that “the government cites no relevant authority in which an administrative
subpoena seeks such broad scale access to personal, private information as it does here.” ECF
No. 13 (Respondent Reply) at 6. However, in United States v. Apodaca, 251 F. Supp. 3d 1, 12
(D.D.C. 2017)—one of the cases on which the government relies—the court enforced subpoenas
requiring the production of recorded jail calls for two defendants for a nearly two-year period of
time. The recorded jail calls, similar to the BOP-owned devices at issue in this case, contained
personal information. See id. at 6. Nonetheless, the court found that “the government [was]
entitled to enforcement of the administrative subpoenas, and, thus, to the jail calls targeted
therein.” Id. at 12.
5
B. The Subpoenas Seek Relevant Information
A court “must enforce a federal agency’s investigative subpoena if the information
sought is reasonably relevant, or, put differently, not plainly incompetent or irrelevant to any
lawful purpose of the agency, and not unduly burdensome to produce.” Invention Submission
Corp., 965 F.2d at 1089 (internal quotation marks and citations omitted). Indeed, courts “defer
to the agency’s appraisal of relevancy, which must be accepted so long as it is not obviously
wrong.” Resolution Trust Corp. v. Frates, 61 F.3d 962, 964 (D.C. Cir. 1995) (quoting
Resolution Trust Corp. v. Walde, 18 F.3d 943, 946 (D.C. Cir. 1994)). Given “the broad
deference . . . afford[ed] the investigating agency, it is essentially the respondent’s burden to
show that the information is irrelevant.” Invention Submission Corp., 965 F.2d at 1090.
Respondent has failed to meet this burden. She has not argued that the information on
the phones and tablet is “plainly incompetent or irrelevant to any lawful purpose of the agency”
or that the information is “unduly burdensome to produce.” Id. at 1089 (internal quotation marks
and citations omitted). Nor has she argued that the agency’s appraisal of relevancy is “obviously
wrong.” Frates, 61 F.3d at 964. Instead, Respondent generally asserts that enforcement of the
subpoenas would grant OIG access to her “personal email, social media, location data, and
internet search history,” where personal, confidential communications are located. Respondent
Reply at 4. These communications, Respondent argues, are of “dubious relevance” to the OIG’s
investigation into employee misconduct. Respondent Mot. at 6.
Respondent’s general assertion of irrelevance is insufficient to outweigh the OIG’s
assertion that it “has reason to believe that [Respondent] has information relevant to the
investigation, and has engaged in relevant communications using her BOP-issued devices.”
Thompson Decl. ¶ 5. It is not “obviously wrong” that these relevant communications and
6
information could be contained in Respondent’s personal email, social media accounts, location
data, or internet search history. Accordingly, the court finds that information contained on the
BOP-owned devices—whether contained in personal accounts or elsewhere—is reasonably
relevant to the OIG’s investigation.
C. The Subpoenas Do Not Violate the Fourth Amendment
Respondent argues that enforcement of the OIG’s subpoenas would violate her Fourth
Amendment rights. Specifically, she argues that she has a reasonable expectation of privacy in
“her personal information stored on the devices and in the cloud,” Respondent Mot. at 12, and
that enforcement of the subpoenas would provide the OIG improper access to this information.
This argument is also unavailing.
The Fourth Amendment “‘guarantees the privacy, dignity, and security of persons against
certain arbitrary and invasive acts by officers of the Government.’” City of Ontario, Cal. v.
Quon, 560 U.S. 746, 755–56 (2010) (quoting Skinner v. Railway Labor Executives’ Assn., 489
U.S. 602, 613–14 (1989)). It is recognized that “‘the touchstone of Fourth Amendment analysis
is whether a person has a constitutionally protected reasonable expectation of privacy.’” Stewart
v. Evans, 351 F.3d 1239, 1243 (D.C. Cir. 2003) (quoting California v. Ciraolo, 476 U.S. 207,
2011 (1986)). However, “[t]o the extent the Fourth Amendment is implicated by the use of an
administrative subpoena, satisfaction of [the authority, definiteness, and relevance] requirements
also satisfies that amendment.” Apodaca, 251 F. Supp. 3d at 8. Because the OIG was authorized
to issue the subpoenas, and the subpoenas are sufficiently definite and relevant to the OIG’s
investigation into potential contract fraud, the court finds that the OIG’s subpoenas satisfy the
Fourth Amendment.
Even assuming arguendo that a reasonable expectation of privacy determination is
7
warranted in this case, Respondent has failed to establish such a reasonable expectation. As an
initial matter, the cases upon which Respondent relies do not support her assertion that she—a
BOP employee—has a reasonable expectation of privacy in the personal information stored on
the BOP-issued devices. Indeed, Riley v. California, 134 S. Ct. 2473 (2014), and United States
v. Jones, 565 U.S. 400 (2012), both involved the defendants’ privacy interests in personally-
owned devices, and therefore provide no guidance for this court’s determination as to whether
Respondent has a reasonable expectation of privacy with respect to the three government-owned
devices at issue. Riley, 134 S. Ct. at 2481 (personal cell phone searched incident to arrest);
Jones, 565 U.S. at 402 (GPS device attached to a personal vehicle in a criminal investigation).
Additionally, in Quon, although the Supreme Court declined to rule broadly on the
privacy expectations a government employee may have in government-issued electronic devices,
the Court noted that when a government employee is told that an electronic device is “subject to
auditing,” he should be on notice that a search may take place. 560 U.S. at 763 (“Even if he
could assume some level of privacy would inhere in his messages, it would not have been
reasonable for Quon to conclude that his messages were in all circumstances immune from
scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement
officer, he would or should have known that his actions were likely to come under legal scrutiny,
and that this might entail an analysis of his on-the-job communications.”). Thus, not only do
Riley, Jones, and Quon not support Respondent’s contention that she “has a reasonable
expectation of privacy in her personal information housed on the [BOP-owned] devices,”
Respondent Mot. at 7, but Quon suggests that the opposite may be true.
Moreover, as in Quon, Respondent was informed that she had no reasonable expectation
of privacy in the information stored on the phones and tablet. Specifically, the BOP Office of
8
Information Technology’s Samsung S7 policy handbook—which Respondent received along
with her Samsung phone—states: “[i]f personal information is stored on the device, it may be
subject to search and production due to e-Discovery/litigation, FOIA requests, or an
administrative staff investigation.” ECF No. 5-2 (BOP Samsung Galaxy S7 Policy) at 42
(emphasis added). And when Respondent initially activated her BOP-issued Samsung phone,
she was required to confirm her receipt and understanding that the Samsung phone is “a
Government furnished device and [that] all activities may be monitored.” Id. at 15; ECF No. 11-
1 (Supplemental Declaration of Greg Thompson, “Thompson Suppl. Decl.”) ¶ 2.
Further, each time Respondent logged onto her BOP-issued Microsoft tablet or BOP-
issued desktop computer, she received the following warning:
You have no reasonable expectation of privacy regarding any
communications transmitted through or data stored on this
information system. At any time, the government may monitor,
intercept, search and/or seize data transiting or stored on this
information system.
Thompson Dec. ¶ 11; Thompson Supp. Decl. ¶ 3. This warning made clear that the “information
system” included “(1) this computer, (2) this computer network, (3) all computers connected to
this network, and (4) all devices and storage media attached to this network or to a computer on
this network.” Id. By the warning’s express terms, all three BOP-owned devices—Samsung
phone, Microsoft tablet, and Blackberry—are “attached” to the BOP network, and therefore are
connected to the BOP information system and may be subject to search. Thompson Supp. Decl.
¶ 4; Thompson Second Supp. Decl. ¶ 6.
Notwithstanding these warnings, Respondent maintains that she reasonably believed that
the “personal business [she] conducted while . . . not connected to the BOP network would
remain private.” ECF No. 13-1 (Respondent Decl.) ¶ 7. In her declaration, she explains that both
9
the Microsoft tablet and the Samsung phone enabled her to communicate and send documents
outside of the BOP network. Once logged onto the Microsoft tablet, Respondent explains, she
was able to either log in securely to the BOP network through a VPN connection via the “Cisco”
application or she could conduct personal business on the tablet, unconnected to the BOP
network. Id. ¶¶ 6–7. Respondent further explains that the Samsung phone has a “Knox
Workspace” and a “Personal Space”—both of which require a different password.3 Id. ¶¶ 9–10.
Respondent was only able to connect to the BOP network through the “Knox Workspace;” she
conducted all “personal business” in the “Personal Space.” Id. ¶¶ 10–11. Respondent maintains
that it was her understanding that only those communications and documents transmitted while
connected to the BOP network were monitored or subject to a search. Id. ¶¶ 7, 11. She believed
that those communications and documents transmitted outside the network would remain private.
Id.
However, as explained previously, BOP’s policies make clear that all three BOP-owned
devices are—in their entirety—a part of the “information system” because they are “attached to
[the BOP] network.” Thompson Supp. Decl. ¶ 4; Thompson Second Supp. Decl. ¶ 6. While it is
true that one can operate the devices without connecting to the BOP network, the devices
themselves are attached to the network, and are therefore subject to monitoring, searching and
seizure. Respondent was not informed otherwise. Thompson Supp. Decl. ¶ 6 (“The BOP has
never provided assurance of privacy to any user of Government Furnished Equipment (GFE).”);
see also Thompson Second Supp. Decl. ¶¶ 8–9. Like the government employee in Quon,
3
According to the OIG, the “Knox Workspace on the BOP-issued Samsung mobile device is an
on-device container that isolates business applications from personal ones with government-
grade security to enable the government to protect against compromises to the BOP network that
could originate in personal use applications such as email.” Thompson Supp. Decl. ¶ 7.
10
Respondent “should have known that [her] actions were likely to come under legal scrutiny.”
560 U.S. at 762. Accordingly, the court finds that Respondent had no reasonable expectation of
privacy in her personal information on the three BOP-owned electronic devices.
D. Respondent’s Privileged Communications with Counsel Must Be Protected
In a footnote, Respondent argues that because the BOP-issued Samsung phone “contains
privileged communications with counsel, any ruling in favor of the government should include
the requirement that a taint team be assembled to ensure that [her] privilege is maintained.”
Reply at 4 n.3. Respondent does not provide any detail regarding the extent to which she used
the BOP-owned devices to communicate with her attorneys. Nor does Respondent provide the
court with a proposed order, describing the mechanisms the OIG should implement to ensure that
Respondent’s attorney-client privilege is maintained during its search of the electronic devices.
Respondent also fails to cite any authority for her proposition that the court should require the
assembling of a “taint team” prior to allowing the OIG to search the Samsung phone.
Nonetheless, the court finds that, even in the context of enforceable administrative
subpoenas, the subpoenaed party is entitled to the protection of her privileged communications
with counsel. See FTC. v. Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142, 158 (D.C.
Cir. 2015) (ordering the district court to determine whether the attorney-client privilege barred
discovery sought pursuant to an administrative subpoena); see also SEC v. Karroum, 2015 WL
8483246, at *4 (D.D.C. Dec. 9, 2015) (enforcing an administrative subpoena and finding that the
respondent’s “attorney-client and marital privileges will be properly protected by means of the
privilege-review procedure”). Accordingly, the court will order the parties to submit a proposed
protective order within five days of this decision that addresses Respondent’s attorney-client
privilege concerns. Additionally, the court will order Respondent to produce the Blackberry
11
device and will order the OIG to refrain from searching all three devices until the court has
issued the protective order.
III. CONCLUSION
For the foregoing reasons, (1) the United States’ Petition for Summary Enforcement of
Inspector General Subpoena, (2) the United States’ Amended Petition for Summary Enforcement
of Inspector General Subpoena and (3) Respondent’s Motion to Quash, or in the Alternative, for
a Protective Order will all be GRANTED in part and DENIED in part.
A corresponding order will issue separately.
Date: June 20, 2018
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
12