United States v. RitcheyUnited States v. Ritchey
I. Introduction
Bеfore the Court is a motion filed by defendant Kenneth Bryan Ritchey (Ritchey) seeking a preliminary injunction enjoining the Government‘s continued and ongoing review of seized electronic and hard copy documents, including privileged materials. Doc. [72]. See also
II. Relevant Background
On April 15, 2020, the Government applied for a warrant to search the premises of Gulf Coast Pharmaceutical Plus, LLC (GCPP). Doc. [76], Ex. 1. The search warrant was sought in connection with the alleged hoarding of scarce COVID-19-related materials.
On April 17, 2020, federal agents executed the First Warrant, seizing electronic devices, and imag[ing] them for later review. Doc. [81], at 1. During execution of the warrant, GCPP corporate counsel, Erich Nichols (Nichols), was apparently onsite. Id., at 2; Doc. [85]. At this
In August 2021, the Government applied for another warrant (Second Warrant) to search previously-seized hard drives and servers belonging to GCPP. Doc. [76], Ex. 4. Unlike the First Warrant, the Second Warrant‘s temporal scope dated back to August 31, 2014 and related to distinct allegations of conspiracy and healthcare fraud. Ibid. On August 18, 2021, the undersigned found that probable cause existed and issued the Second Warrant. Id., Ex. 3. The Second Warrant contained a general outline for a filter team protocol. Ibid. It stated:
With respect to law enforcement‘s review of the digital evidence described in Attachment A, law enforcement (i.e., the federal agents and prosecutors working on this investigation and, prosecution), along with other government officials and contractors whom law enforcement deems necessary to assist in the review of the digital evidence (collectively, the Review Team) are hereby authorized to review, in thе first instance, the digital evidence and the information and materials contained in them, as set forth in this Attachment B. If law enforcement determines that all, some, or a portion of the information or materials in the digital evidence contain or may contain information or material subject to a claim of attorney-client privilege or work-product protection (the Potentially Privileged Materials), the
Review Team is hereby ordered to: (1) immediately cease its review of the specific Potentially Privileged Materials at issue; (2) segregate the specific Potentially Privileged Materials at issue; and (3) take appropriate steps to safeguard the specific Potentially Privileged Materials at issue. Nothing in this addendum shall be construed to require law enforcement to cease or suspend the Review Team‘s review of the digital evidence upon discovery of the existence of Potentially Privileged Materials in the digital evidence.
[Doc. [76], Ex. 3.]
On December 2, 2021, current defense counsel sent a letter to the filter team raising the issue of attorney-client privilege; he also explained that Ritchey did not receive the Government‘s list of PPM. Doc. [72], Ex. 6. Fifteen days later, Starnes responded that the filter team already produced all non-PPM to the prosecution team seized pursuant to the First Warrant. Id., Ex. 3. Along with this letter, Starnes sent counsel an excel spreadsheet with the Bates numbers of documents from the first search warrant released to the prosecution team. Ibid. However, Starnes further indicated—and the Government now represents—that the filter team has not turned over any materials seized pursuant to the Second Warrant. Id. See also Doc. [81]. On January 14, 2022, Ritchey demanded that the filter team turnover its protocol. Doc. [72], Ex. 7. Finally, on March 16, 2022, Starnes responded that the filter team used attorney-specific search terms and generic terms to identify material potentially subject to a claim of attorney client privilege, attorney work product, or other protection. Id., Ex. 8. This motion followed. Doc. [72].
III. Standard of Review
The Court applies a preliminary injunction standard. In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means (Optima), 11 F.4th 1235, 1248 (11th Cir. 2021) (preliminary injunction standard applies to post-indictment Rule 41(g) motion to modify filter team protocol); In re Search Warrant Issued June 13, 2019 (Baltimore Law Firm), 942 F.3d 159, 170–71 (4th Cir. 2019) (preliminary injunction standard applies to post-indictment
IV. Analysis
A. Categorical Violation of the Separation of Powers
First, the Court addresses Ritchey‘s argument that a government filter team has no right to review seized documents for privilege because that determination is a judicial function . . . [that] should not be assigned to the executive branch. Doc. [72], at 7. To suрport this proposition, Ritchey relies exclusively on the Baltimore Law Firm case. Ibid. In that case, the Government seized documents pursuant to a search warrant. Baltimore Law Firm, 942 F.3d at 164. While the warrant‘s scope was limited to one lawyer‘s documents about one client, the Government seized all of the lawyer‘s email correspondence, including correspondence with or about other clients outside the scope of the warrant. Id. at 166–67. Furthermore, only 116 of 52,000 emails seized were sent to or received from the designated client or contained his last name. Ibid. The vast
Baltimore Law Firm is not binding in this jurisdiction; and, to the extent [Baltimore Law Firm] suggests that the use of a filter team by a federal prosecuting office [categorically] violate[s] the constitutional separation of powers, this Court respectfully disagrees. In re Search Warrants Executed on Apr. 28, 2021, No. 21–MC–425 (JPO), 2021 WL 2188150, at *2 n.3 (S.D.N.Y. May 28, 2021). Indeed, if taken to its logical conclusion, Ritchey‘s argument would require a judicial officer to conduct the initial review of almost any communications seized pursuant to a warrant . . . because, in theory, any [] communications could contain privileged information[;] this would place an intolerable burden on the Court. Avenatti, 559 F. Supp. 3d at 282 (citation omitted). Ultimately, to the extent that Ritchey believes that filter teams are categorically unconstitutional, the Court rejects this argument.2
B. Return of Documents
Insofar as Ritchey seeks the return of seized materials—as opposed to challenging the adequacy of the filter team protocol– the Court‘s analysis begins and ends at the first preliminary injunction prong. See, e.g., In re Search of Elec. Commc‘ns in the Acct. of chakafattah@gmail.com at Internet Serv. Provider Google, Inc., 802 F.3d 516 (3d Cir. 2015) (distinguishing between
Under the first prong, Ritchey needed to demonstrate a substantial likelihood that [he] will prevail on the merits of his motion—i.e. that specific materials are entitled to attorney-client privilege. City of El Cenizo, Texas, 890 F.3d at 176. However, the attorney-client privilege only protects communications from the client to the attorney made in confidence for the purpose of obtaining legal advice. Wells v. Rushing, 755 F.2d 376, 379 n.2 (5th Cir. 1985) (emphasis added). When the client is a corporation, the attorney-client privilege belongs to the corporation. Commodity Futures Trading Comm‘n v. Weintraub, 471 U.S. 343, 349 (1985). Similarly, where an LLC is an attorney‘s client, the рrivilege belongs to the LLC—not its member or members. See, e.g., Pearlshire Cap. Grp., LLC v. Zaid, 490 F. Supp. 3d 1299, 1308 (N.D. Ill. 2020). See also Taylor Lohmeyer L. Firm P.L.L.C. v. United States, 957 F.3d 505, 509 (5th Cir. 2020); In re PWK Timberland, LLC, 549 B.R. 366, 370 (Bankr. W.D. La. 2015). Here, Ritchey repeatedly asserts GCPP‘s privilege in his motion. Doc. [72], at 5–6, Ex. 6. While an apparent member of GCPP—an LLC, Ritchey lacks standing to assert a privilege belonging to GCPP. Pearlshire Cap. Grp., LLC, 490 F. Supp. 3d at 1308.3
Notwithstanding the above, Ritchey also asserts his personal privilege over some of the seized materials. Doc. [72], at 4. On this point, the attorney-client privilege may not be tossed as a blanket over an undifferentiated group of documents[,] United States v. El Paso Co., 682 F.2d 530, 538 (5th Cir. 1982), but rather it must be specifically asserted with respect to particular documents[,] Taylor Lohmeyer L. Firm P.L.L.C., 957 F.3d at 509–10 (quoting El Paso Co., 682
C. Adequacy of Filter Team Protocol
i. Introduction
While the parties agree that a filter team was necessary in this case, they disagree whether the existing filter team protocol adequately protects Ritchey‘s attorney-client privilege. Before jumping into the analysis, the Court clarifies two points. First, the Government represents, and Ritchey does not dispute, that the same filter team protocol governed review of the materials seized under each Warrant. See Doc. [72], at 12–13; [81], at 11–12. Relatedly, the existing filter team protocol is located in the Second Warrant and Starnes’ March 16, 2022 email to defense counsel. Doc. [72], Ex. 3, 8. The parties have not identified any other aspects of the protocol. Doc. [72]; [81]. Second, unlike the Second Warrant, materials seized under the First Warrant, which the filter team already determined were non-PPM, have already been produced to the prosecution team. Doc. [72], Ex. 3; [81], at 5. While the Court recognizes that this distinction may carry significance for suppression purposes, the merits-related question presently before the Court is whether the
a. Substantial Likelihood of Success
At the first prong, the Court considers whether Ritchey has demonstrated a substantial likelihood that he will succeed on the merits. City of El Cenizo, Texas, 890 F.3d at 176. In this context, the Court asks whether it is substantially likely that the Government‘s filter team protocol provides inadequate protection for Ritchey‘s attorney-client privilege. Optima, 11 F.4th at 1249; Baltimore Law Firm, 942 F.3d at 175–76. The Court begins with the relevant principles and competing concerns that animate its consideration.
The attorney-client privilege is the oldest privilege known to the common law. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The privilege play[s] a vital role in assuring the proper functioning of the criminal justice system and provide[s] a means for a lawyer to prepare h[is] client‘s case. Optima, 11 F.4th at 1249 (quotation omitted). [It] encourage[s] full and frank communication between attorneys and their clients and thereby promote[s] broader public interests in the observance of law and administration of justice. Upjohn Co., 449 U.S. at 389. In short, courts zealously protect documents within the scope of the attorney-client privilege. Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 960 (3d Cir. 1984) (citations omitted).
Notwithstanding the above, the proliferation of electronically-stored information (ESI) has led to a corresponding manifold increase in the volume of materials seized pursuant to search
The emergent answer to balancing these concerns is usage of a government filter team. A filter team generally consists of FBI agents, an Assistant United States Attorney and other employees who are not involved in the investigation . . . , and whose task is to identify potentially privileged documents and then segregate these documents from non-рrivileged material. Heebe v. United States, No. CIV.A. 10–3452, 2012 WL 3065445, at *3 (E.D. La. July 27, 2012). The use of a
In sum, filter teams present a solution to a practical problem in cases where there is a high likelihood that a significant volume of privileged materials will be seized. Avenatti, 559 F. Supp. 3d at 282; Schwartz, 2021 WL 3909807, at *7; Heebe, 2012 WL 3065445, at *3; Hicks v. Bush, 452 F. Supp. 2d 88, 103 n.12 (D.D.C. 2006). Still, courts necessarily view filter teams with a certain level of suspicion. Winget, 454 F.3d at 523; United States v. Renzi, 722 F. Supp. 2d 1100, 1112 (D. Ariz. 2010). To dispel this suspicion, the Government typically seeks court preapproval of its filter team protocol in an adversarial context or an informal, good faith resolution with the defendant. Satary, 504 F. Supp. 3d at 555; United States v. Sledziejowski, No. 3:16–CR–101–B, 2018 WL 2288962, at *1 (N.D. Tex. May 18, 2018); Heebe, 2012 WL 3065445, at *3. Absent specific facts evidencing mishandling or other misconduct, courts have widely approved of filter team protocols formed through this process. Warrants Executed on Apr. 28, 2021, 2021 WL 2188150, at *2. Indeed, in such cases, the protocol is transparent, subject to adversarial review, and flexible to the needs of the case.
The parties first dispute whether the Government needs to include a filter team protocol in a search warrant. Doc. [72], at 9; [81], at 7. On this point, neither Ritchey, nor this Court, nor other сourts have discovered authority supporting the proposition that a proposed filter team protocol must be included within a search warrant. See, e.g., United States v. St. George, No. CR 19–10059–RGS, 2021 WL 4132662, at *3 n.5 (D. Mass. Sept. 11, 2021). Second, and more importantly, the Government is not constitutionally required to implement a filter team. After all, the attorney-client privilege is not a constitutional right but rather an evidentiary privilege. Diaz, 941 F.3d at 739. Nevertheless, while the Government is not obligated to implement a filter team, the absence of an adequate protocol—or filter team altogether—may transgress constitutional boundaries, United States v. Neill, 952 F. Supp. 834, 839–40 (D.D.C. 1997), create the appearance of impropriety, Baltimore Law Firm, 942 F.3d at 182, or require the Court to impose a modified filter team protocol, In re Sealed Search Warrant & Application for a Warrant, No. 20–MJ–03278, 2020 WL 5658721, at *4–*8 (S.D. Fla. Sept. 23, 2020).
Next, the parties hotly contest whether the Government must provide an objections period to potential privilege holders before production of non-PPM to the prosecution team. Doc. [72], at
In this case, the Government‘s filter team protocol plainly does not provide Ritchey with an objections period. Doc. [76], Ex. 3, 8. Likewise, there is no indication that the parties informally agreed to the present protocol. Cf. Sledziejowski, 2018 WL 2288962, at *3. In turn, the current protocol vested the final privilege determination in the filter team. Cf. Vepuri, 2021 WL 4860744, at *3; United States v. Sullivan, No. CR 17–00104–JMS–KJM, 2020 WL 1815220 (D. Haw. Apr. 9, 2020). This undermines the adequacy of the current filter team protocol.
Finally, the protocol‘s own provisions further reflect its inadequacy. For one, the protocol set forth in the Second Warrant did not fully describe the filter team protocol so Ritchey was not fully informed until March of 2022. Compare Doc. [72], Ex. 3, with id., Ex. 6, 8. Second, the filter team protocol failed to create an objections process. Id., Ex. 3. Third, as identified above, the filter team
For all of these reasons, there is a substantial likelihood that Ritchey will successfully demonstrate that the existing filter team protocol inadequately protects his attorney-client privilege.
b. Threat of Irreparable Harm
Next, the Court asks whether there is a substantial threat that [Ritchey] will suffer irreparable injury if the injunction is not granted[.] City of El Cenizo, Texas, 890 F.3d at 176 (quotation omitted). To meet this prоng, Ritchey must show that irreparable injury is likely in the absence of an injunction. Monumental Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573, 583 (E.D. La. 2016) (quotation omitted). In general, a harm is irreparable where there is no adequate remedy at law, such as monetary damages. Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011) (citation omitted). Relevant here, it is well-established that an adverse party‘s review of privileged materials seriously injures the privilege holder. Baltimore Law Firm, 942 F.3d at 175 (collecting cases). See also Harbor Healthcare Sys., L.P., 5 F.4th at 593; United States v. Philip Morris Inc., 314 F.3d 612, 622 (D.C. Cir. 2003); Klitzman, Klitzman & Gallagher, 744 F.2d at 960. When a filter team protocol inadequately protects the attorney-client privilege, there is a significant likelihood that the opposing party, the prosecution team, will review privileged materials and cause irreрarable harm. Baltimore Law Firm, 942 F.3d at 175.
An aggrieved party cannot receive monetary damages under
c. Balancing the Equities
Third, the Court considers whether Ritchey‘s injury outweighs the threatened harm to the party whom [he] seek[s] to enjoin[.] City of El Cenizo, Texas, 890 F.3d at 176. In weighing equities, a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Texas v. United States, 524 F. Supp. 3d 598, 663 (S.D. Tex. 2021) (quotation omitted). See also Valley v. Rapides Par. Sch. Bd., 118 F.3d 1047, 1056 (5th Cir. 1997).
Here, the equities weigh heavily in Ritchey‘s favor. First, the filter team did not give the appearance of a neutral nonparty. See, e.g., Doc. [81], Ex. 2–3. Furthermore, Ritchey was not fully informed about the filter team protocol until March 16, 2022. Doc. [72], Ex. 8. Finally, the Government did not provide Ritchey with an opportunity to object before it рroduced certain materials that it unilaterally deemed non-PPM to the prosecution team. Doc. [76], Ex. 3. For these and other reasons identified above, there is a substantial risk of harm to Ritchey‘s attorney-client privilege. On the other hand, the Government may be slightly delayed in bringing Ritchey to trial, inconvenienced if the Court temporarily halts it from moving forward with aspects of its case, and
d. Public Interest
Finally, the Court asks whether granting the preliminary injunction will disservice the public interest. City of El Cenizo, Texas, 890 F.3d at 176. Under this prong, the Court considers what public interests might be injured and what public interests might be served by granting or denying a preliminary injunction. Texas, 524 F. Supp. 3d at 663 (citing Sierra Club v. U.S. Army Corps of Engineers, 645 F.3d 978, 997–98 (8th Cir. 2011)).
It is well-established that protection of the attorney-client privilege typically supports the public interest. See, e.g., Philip Morris Inc., 314 F.3d at 622 (quotation omitted) (noting that the attorney-client privilege is an institutionally significant status or relationship with deep roots in our nation‘s adversary system). As described above, the existing filter team protocol will only undermine Ritchey‘s privilege. Superseding this filter team protocol with one that adequately protects Ritchey‘s privilege will serve the public interest. This prong weighs in Ritchey‘s favor.
For these reasons, Ritchey will be granted a preliminary injunction.
V. Conclusion
IT IS THEREFORE ORDERED AND ADJUDGED that Ritchey‘s [72] Motion to Return Documents/Adequate Filter Team Protocol is GRANTED IN PART and DENIED IN PART. Ritchey‘s motion is DENIED insofar he seeks a return of documents. However, Ritchey‘s motion is GRANTED insofar he seeks to vacate the existing filter team protocоl.
IT IS FURTHER ORDERED, the Court enjoins the filter team from taking any additional action with the seized materials until this Court approves of a new filter team protocol.
IT IS FURTHER ORDERED, the parties are directed to submit a joint modified filter team protocol to the Court within 14 days of entry of this Order. If the parties cannot agree on a modified protocol, which must account for the Cоurt‘s concerns, then they shall contact the Court. Once finalized, the modified protocol shall be used to refilter all materials seized under the First Warrant and Second Warrant.
SO ORDERED AND ADJUDGED, this the 3rd day of June 2022.
/s/ Robert P. Myers, Jr.
ROBERT P. MYERS, JR.
UNITED STATES MAGISTRATE JUDGE