In Re Search of Electronic Communications
2015 U.S. App. LEXIS 15579
3rd Cir.2015Background
- Rep. Chaka Fattah was subject to a federal grand jury investigation; the government obtained a magistrate-issued search warrant for his Gmail account seeking emails from 2008 to present related to alleged fraud, extortion, and bribery.
- Google received the warrant and notified Fattah under its policy, allowing him to move in district court to quash/intervene before Google produced data.
- Fattah argued the warrant violated the Speech or Debate Clause, attorney-client privilege, work-product doctrine, and the Fourth Amendment; he also challenged the government’s proposed "taint team" filtering procedures.
- The District Court denied the motion to quash, approved the taint-team approach, and rejected a pre-execution Fourth Amendment suppression remedy and a Rule 41(g) return-of-property claim (no seizure yet).
- Fattah appealed; the Third Circuit considered (1) whether it had interlocutory jurisdiction to review the denial under the collateral-order, Perlman, or Rule 41(g) doctrines, and (2) whether the proposed filtering procedures adequately protected privilege.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the collateral-order doctrine permits interlocutory appeal of denial to quash an unexecuted search warrant on Speech or Debate grounds | Fattah: order conclusively decides a constitutional privilege and is immediately appealable | Govt/District Ct: denial is not separate from the merits because the fruits of a warrant affect prosecution; suppression is available after execution and conviction | Held: No jurisdiction — collateral-order fails (not separate from merits; reviewable after final judgment) |
| Whether the Perlman doctrine allows immediate appeal of Speech or Debate disclosure to a third party (Google) | Fattah: Speech or Debate is a nondisclosure privilege and Perlman applies because Google as third‑party won’t invoke contempt | Govt: Speech or Debate does not bar disclosure of records to the government; Perlman protects only recognized nondisclosure privileges (e.g., attorney‑client) | Held: No jurisdiction under Perlman for Speech or Debate records — Clause is a non‑use (not nondisclosure) privilege as applied to records |
| Whether Perlman permits interlocutory review of attorney‑client/work‑product claims about filtering procedures (taint team) | Fattah: taint team structure (non‑attorney first review) risks destroying nondisclosure privileges; needs immediate appellate protection under Perlman | Govt/District Ct: proposed filtering is adequate; taint teams are common; district court can supervise | Held: Jurisdiction exists under Perlman for attorney‑client and work‑product claims; remanded to require that initial filter review be performed by an independent DOJ attorney acceptable to the district court |
| Whether a pre‑indictment Rule 41(g) motion denial is immediately appealable | Fattah: styled his motion as Rule 41(g) for return of property, seeking review | Govt/District Ct: no property seized yet so Rule 41(g) is inapplicable | Held: No jurisdiction — no seizure occurred, so Rule 41(g) does not authorize interlocutory appeal |
Key Cases Cited
- Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (narrow construction of collateral-order doctrine)
- Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (final-judgment rule and collateral-order framework)
- Perlman v. United States, 247 U.S. 7 (Perlman doctrine for immediate appeal where third‑party custodian will comply)
- Gravel v. United States, 408 U.S. 606 (scope of Speech or Debate protections for aides and legislative acts)
- Helstoski v. Meanor, 442 U.S. 500 (Speech or Debate Clause limits on disclosure/use)
- Brewster v. United States, 408 U.S. 501 (purpose of Speech or Debate Clause and limits on prosecution)
- In re Grand Jury (Eilberg), 587 F.2d 589 (3d Cir.) (Speech or Debate: records disclosure allowed; procedure for congressman to identify legislative acts)
- In re Grand Jury, 705 F.3d 133 (3d Cir.) (Perlman and interlocutory review principles for third‑party subpoenas)