11 F.4th 1235
11th Cir.2021Background
- FBI executed a warrant at Optima Family Companies' Miami offices and seized documents and electronic media, including materials from an in‑house lawyer’s office that the Intervenors claim are privileged.
- The warrant contained an Original Filter‑Team Protocol authorizing a government filter team (attorneys/staff not involved in the investigation) to screen and segregate communications “to/from attorneys” and to obtain a court order before turning over any attorney communications deemed non‑privileged.
- Intervenors (Optima entities and principals) moved under Rule 41(g) and for a preliminary injunction to prevent government review of potentially privileged materials unless Intervenors agreed or a court/special master first ruled; they argued the Original protocol risked exposing privileged substance and was underinclusive.
- The magistrate judge modified the protocol: Intervenors conduct initial privilege review and supply a privilege log; a walled‑off government filter team may challenge log entries; disputes go to the court or a special master; investigative team receives only items agreed or ordered released.
- The district court affirmed the Modified Filter‑Team Protocol; Intervenors appealed. The Eleventh Circuit affirmed, holding (1) it had jurisdiction to hear the interlocutory appeal and (2) the Intervenors failed to show a substantial likelihood of success that filter teams per se or the Modified Protocol violate privilege rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to hear interlocutory appeal of Rule 41(g) motion | Motion solely seeks return/protection of privileged property; harm from government review would be definitive and irreparable; appealable now | DiBella bars immediate appeals of pre‑indictment Rule 41(g) motions tied to criminal prosecution | Court has jurisdiction: motion was discrete, not tied to an ongoing prosecution in esse, and interlocutory review required to prevent irreparable privacy harm |
| Are government filter teams per se violative of privilege? | Filter teams necessarily expose privileged substance to the government and thus always violate privilege holders’ rights | Filter teams can be lawful and protective if walled off and combined with other safeguards | No per se violation: Intervenors failed to show a substantial likelihood of success on this claim |
| Does the Modified Filter‑Team Protocol here violate privilege (e.g., judicial function usurpation, underinclusive identification, risk of disclosure)? | Protocol still permits government review and risks inadvertent disclosure; assigns too much executive screening | Protocol gives Intervenors first review, requires a privilege log, uses walled‑off filter team, and requires court/special master resolution before release | Protocol adequate under precedent and facts here; magistrate and district court did not abuse discretion |
| Whether preliminary injunction against any government review was warranted | Immediate injunction needed to prevent irreparable invasion of privacy and privilege | Injunction would unduly delay/impede investigation; existing safeguards adequate | Denied: Intervenors did not show substantial likelihood of success (an essential injunction element); other factors weighed against relief |
Key Cases Cited
- DiBella v. United States, 369 U.S. 121 (U.S. 1962) (establishes test for appealability of pre‑judgment suppression/return‑of‑property orders)
- United States v. Jarman, 847 F.3d 259 (5th Cir. 2017) (upholding use of a walled‑off government filter team to protect privilege)
- In re Grand Jury Subpoenas 04‑124‑03 & 04‑124‑05 (Winget), 454 F.3d 511 (6th Cir. 2006) (criticized protocols where government makes initial privilege calls without adequate checks)
- In re: Search Warrant Issued June 13, 2019 (Baltimore Law Firm), 942 F.3d 159 (4th Cir. 2019) (found defects where filter protocol improperly assigned judicial functions and was issued ex parte)
- Search of Elec. Commc’ns in the Acct. of chakafattah@gmail.com, 802 F.3d 516 (3d Cir. 2015) (recognized permissibility of filter‑team procedures in some contexts)
- In re Grand Jury Investigation, 842 F.2d 1223 (11th Cir. 1988) (explains crime‑fraud exception to attorney‑client privilege)
- Richey v. Smith, 515 F.2d 1239 (5th Cir. 1975) (discusses Rule 41(g) equitable nature and appellate considerations)