Opinion · Court of Appeals for the Fifth Circuit
United States v. Fluitt
United States v. Fluitt, 99 F.4th 753 (5th Cir. 2024)
- Type
- Opinion
- Court
- Court of Appeals for the Fifth Circuit
- Jurisdiction
- Federal
- Date
- 2024-04-24
- Topic
- bankruptcy
How later courts describe this case
- finding that inclusion of “attorney client privileged and confidential” in email subject line is insufficient to establish email was privileged
- noting the standards for 3 The District Court held a hearing on Martino’s motions and provided an opportunity for supplemental briefing on these issues. 6 establishing attorney-client and work-product privilege
Citator
UpLaw has not yet analyzed United States v. Fluitt. The absence of a flag is not a finding that it is good law.
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Case: 22-30316 Document: 133-1 Page: 1 Date Filed: 04/24/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-30316
April 24, 2024
____________
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
George M. Fluitt, III, also known as Trey Fluitt,
Defendant—Appellee,
versus
Hurricane Shoals Entities; Khalid Satary,
Respondents—Appellants.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:20-CR-196-1
______________________________
Before Dennis, Engelhardt, and Oldham, Circuit Judges.
James L. Dennis, Circuit Judge:
This interlocutory discovery appeal presents several unusual
procedural and jurisdictional questions. Because we have appellate
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No. 22-30316
jurisdiction, the non-party appellants have standing, and the district court did
not abuse its discretion, we AFFIRM.
I. Factual & Procedural Background
In September 2020, George Fluitt was indicted in the United States
District Court for the Western District of Louisiana on three counts of fraud
and offering kickbacks related to genetic testing services that his company,
Specialty Drug Testing LLC, provided to Medicare beneficiaries. Earlier, in
September 2019, as part of a nationwide investigation into genetic testing
fraud, the Government executed search warrants at laboratories located in
Georgia, Louisiana, and Oklahoma, referred to as the Hurricane Shoals
Entities (“HSE”), allegedly operated by Khalid Satary (collectively
“Appellants”). The Government copied several terabytes of data from HSE
pursuant to these warrants, some of which the Government later determined
were material to Fluitt’s defense. Satary was indicted separately in the
United States District Court for the Eastern District of Louisiana. See
Indictment, United States v. Satary, No. 2:19-CR-197 (E.D. La. Sept. 26,
2019), ECF No. 1.
In Fluitt’s case, the Government established a “Filter Team,”
separate from the Prosecution Team, to review materials seized in its
investigation and identify any that might be privileged. 1 The Filter Team’s
review was governed in part by a Protocol Order, entered by the district court
_____________________
1
Appellants spill significant ink criticizing the Government’s use of filter teams
and protocol orders in federal criminal prosecutions. While some members of this panel
have serious concerns about the propriety of having Government filter teams conduct
privilege reviews of seized documents, that practice falls outside of the scope of the narrow
discovery dispute presently before us. Were we to reach Appellants’ arguments, we would
be issuing an advisory opinion, which “is inappropriate, unnecessary, and beyond the
purview of federal courts.” United States v. Varner, 948 F.3d 250, 260
(5th Cir. 2020)
(Dennis, J., dissenting) (citations omitted).
2
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at the Government’s motion, which established a multi-step process for
notifying a third party that it might have a claim of privilege and then
adjudicating that claim. ROA.123–129 (Protocol Order). 2 According to the
Protocol Order, the Filter Team was required to segregate any material
potentially subject to a claim of privilege. ROA.123. If the potential privilege
claim belonged to someone other than Fluitt, the Filter Team was mandated
to notify the third-party claimant and seek court authorization before
disclosing the potentially privileged material to either Fluitt or the
Prosecution Team. ROA.126 ¶ 5(c). The third party had fourteen days after
receiving notice to object to disclosure or assert a claim of privilege. ROA.126
¶ 5(c)(ii). If the latter action was taken, the third party’s assertion of privilege
was required to be accompanied by a privilege log detailing the allegedly
privileged material and an explanation of the asserted privilege’s application.
Id.
The Protocol Order imposed a meet-and-confer obligation on the Filter
Team and the claimant. If the meet and confer proved fruitless, either the
Filter Team or Fluitt could move to compel disclosure. ROA.126 ¶ 5(c)(iv)-
(v). Although the Protocol Order did not expressly say so, it apparently
contemplated that any motion to compel would be directed at the non-party
claimant. See ROA.126 ¶ 5(c)(vi) (providing that claimant “shall file a
response” within seven days of “the filing of a motion to compel”).
On December 14, 2020, five days after the district court entered its
Protocol Order, non-party HSE and non-party Satary were notified of its
existence. A copy of the December 9, 2020, Protocol Order was emailed to
counsel for Appellants. The Filter Team advised Satary that it planned to
disclose to Fluitt the exact same materials it had disclosed in related
prosecutions, which Satary had already objected to based on claims of
_____________________
2
A copy of the Protocol Order is appended to this opinion for ease of reference.
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privilege. 3 In response, HSE provided privilege logs to the Filter Team in
January and February 2021, asserting 24,819 claims of privilege in total.
Satary filed a privilege log asserting 7,324 claims of privilege on February 2,
2021. Both Fluitt and the Filter Team found these privilege logs to be facially
deficient as they made only threadbare assertions of privilege, e.g.,
“attorney-client communication” or “attorney work product,” without any
accompanying explanation. Satary refused to meet and confer with Fluitt and
the Filter Team regarding their objections to his logs. HSE, on the other
hand, did meet and confer with Fluitt, but ultimately refused to modify their
logs or provide any additional information to support their assertions of
privilege.
On July 9 and 14, 2021, Fluitt filed separate motions to compel against
Satary and HSE, arguing that they had failed to carry their burden of
establishing privilege and that their deficient logs should be interpreted as a
waiver. The Government provided notice to the district court that Satary and
HSE’s privilege logs were deficient, but that it would not seek court
authorization to disclose the potentially privileged materials. In October and
November 2021, the magistrate judge (1) held hearings on Fluitt’s motion,
which the Filter Team and Prosecution Team and counsel for Satary and/or
HSE attended; and (2) ordered supplemental briefing on a number of
questions related to Appellants’ status as non-parties before the court. HSE
and Satary filed opposition memoranda in October and November 2021,
respectively.
The magistrate judge subsequently entered an order directing the
Government—not HSE or Satary—to disclose the potentially privileged
_____________________
3
Pursuant to discovery orders issued in other related genetic testing fraud
prosecutions, in April 2020, the Filter Team notified HSE and Satary that it had identified
potentially privileged material for its review.
4
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material to Fluitt. HSE and Satary’s principal argument in support of non-
production was that, as non-parties to the criminal proceeding, they were not
obligated to comply with the Protocol Order. Based on this position, the
magistrate judge “accede[d] to HSE and Satary’s refusal to be bound by, or
subject to the Protocol entered in this case,” “reformed” Fluitt’s motions to
compel to be directed against the Government, and held that HSE and Satary
lacked standing to challenge Fluitt’s motion. The magistrate judge held in
the alternative that, even if HSE and Satary were properly before the court
on this matter, their assertions of privilege would fail because their privilege
logs were deficient under federal common law.
HSE and Satary jointly appealed the magistrate judge’s order to the
district court, which summarily affirmed. HSE and Satary timely noticed an
appeal to our court. A motions panel of our court, like the district court,
declined to stay the magistrate judge’s order pending appeal. After Fluitt and
the Government filed their response briefs, Satary absconded—he has been
declared a fugitive by the Eastern District of Louisiana. Minute Entry,
Satary, No. 2:19-CR-197 (E.D. La. Dec. 12, 2022), ECF No. 344.
II. Standard of Review
“Discovery decisions are reviewed for abuse of discretion.” Williams
v. Boeing Co., 23 F.4th 507, 514
(5th Cir. 2022) (citing HC Gun & Knife Shows, Inc. v. City of Houston,201 F.3d 544, 549
(5th Cir. 2000)). “A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.” Bocanegra v. Vicmar Servs., Inc.,320 F.3d 581, 584
(5th Cir. 2003) (citing Resol. Tr. Corp. v. Bright,6 F.3d 336
, 340–41 (5th Cir. 1993)). Even if this court finds an abuse of discretion, it “will only vacate a court’s judgment if the court’s abuse of discretion affected the substantial rights of the appellant.” Crosby v. La. Health Serv. & Indem. Co.,647 F.3d 258, 261
(5th Cir. 2011) (citing Marathon
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Fin. Ins., Inc., RRG v. Ford Motor Co., 591 F.3d 458, 469
(5th Cir. 2009)).
III. Discussion
A. Jurisdiction
At the outset, the parties dispute whether we have jurisdiction to hear
this interlocutory appeal. Because of the Perlman doctrine, we do. 4
Title 28, United States Code, Section 1291
confers courts of appeals with jurisdiction to hear appeals from “final decisions of the district courts.” The Supreme Court has “ generally denied review of pretrial discovery orders’” because “ the rule remains settled that most discovery rulings are not final.’” Mohawk Indus., Inc. v. Carpenter,558 U.S. 100, 108
(2009) (first quoting Firestone Tire & Rubber Co. v. Risjord,449 U.S. 368, 377
(1981); and then quoting 15B Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 3914.23 (2d ed. 1992)). Instead, the typical route for a party to obtain immediate review of an adverse discovery order is to defy the order, be held in contempt, and appeal the contempt citation because contempt orders are immediately appealable. Firestone,449 U.S. at 377
(citing Cobbledick v. United States,309 U.S. 323, 327
(1940)). The so-called Cobbledick doctrine “has long been followed in this circuit.” In re Grand Jury Subpoena,190 F.3d 375, 382
(5th Cir. 1999) (citing United States v. Grand Jury,425 F.2d 327
(5th Cir. 1970)).
The Cobbledick method of obtaining immediate appellate review does
not work, however, when the individual or entity seeking review of an adverse
discovery order is unable to put themselves in contempt. For instance, when
an order directs a disinterested third party to disclose materials over the
privilege assertions of a non-party, there can be no reasonable expectation
_____________________
4
Perlman v. United States, 247 U.S. 7
(1918).
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that the disinterested third party will risk contempt to create an appeal for
the privilege holder. In such a situation, the exception to the Cobbledick
doctrine recognized in Perlman v. United States, 247 U.S. 7
(1918), may apply. “The Perlman exception has come to stand for the proposition that a party opposin documents at issue are in the hands of a third party who has no independent interest in preserving their confidentiality.’” In re Grand Jury Subpoena,190 F.3d at 382
(quoting Pennsylvania v. Ritchie,480 U.S. 39
, 77 n.3 (1987) (Stevens, J., dissenting)). Under the Perlman doctrine, “a discovery order directed at a disinterested third party is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance.” Church of Scientology of Cal. v. United States,506 U.S. 9
, 18 n.11 (1992) (citations omitted).
While the Perlman exception arises most commonly in our caselaw in
a situation where a grand jury has subpoenaed documents from a third party
over the objections of the target of the grand jury investigation, we see no
reason why the exception would not also apply in this case. Fluitt has
moved—as “reformed” by the magistrate judge—to compel production of
materials in possession of the Government’s Filter Team over non-party
HSE’s and non-party Satary’s assertions of privilege. In both kinds of cases,
the party holding the disputed materials is different from the individuals or
entities asserting privilege and, importantly, does not share the privilege
holders’ interest in defying a court order. As that lack of interest is the
“touchstone of the Perlman inquiry,” the doctrine applies in this case. 5 In re
_____________________
5
The Government’s argument that Satary and HSE have another means of
redress, which we take to mean appellate review, because Satary and HSE are parties to the
proceedings in the Eastern District of Louisiana does not follow. Satary and HSE cannot
get appellate review of the Western District of Louisiana’s adverse discovery order by
seeking relief from the Eastern District of Louisiana.
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Grand Jury Subpoena, 190 F.3d at 383
(citing In re Grand Jury Proceedings in the Matter of Fine,641 F.2d 199, 201
(5th Cir. 1981)).
B. Standing
The Government and Fluitt raise an additional challenge to the
justiciability of this appeal: Satary and HSE’s non-party status. Relying on
“[t]he rule that only parties to a lawsuit, or those that properly become
parties, may appeal an adverse judgment,” the Government and Fluitt argue
that HSE and Satary should have sought “intervention for the purposes of
appeal.” Because they did not, the Government and Fluitt argue, HSE and
Satary lack standing. However, both the Government and Fluitt acknowledge
an equitable exception for certain non-party appeals, which in this circuit is
evaluated under a three-factor -parties
actually participated in the proceeding[] below, the equities weigh in favor of
hearing the appeal, and the non-parties have a personal stake in the
outcome.’” Searcy v. Philips Elecs. N. Am. Corp., 117 F.3d 154
, 157 (5th Cir. 1997) (quoting EEOC v. La. Off. of Cmty. Servs.,47 F.3d 1438
, 1442 (5th Cir. 1995)) (citing United States v. Chagra,701 F.2d 354
, 358–60 (5th Cir. 1983)); see also Castillo v. Cameron Cnty.,238 F.3d 339, 349
(5th Cir. 2001) (“In order
to determine if a nonparty may properly appeal, this court has adopted a
three-part test[.]”).
All three of Searcy’s factors weigh in favor of permitting Appellants’
non-party appeal. HSE and Satary participated in the discovery dispute
below by asserting privilege, opposing Fluitt’s motion to compel with briefing
and oral argument, and appealing the magistrate judge’s order to the district
judge. The equities also favor appeal. Appellants have not engaged in any
delay tactics or failed to assert their rights. True, Appellants have maintained
that they are not bound by the Protocol Order, but they have nonetheless
complied (somewhat) with the Order’s requirements. The Government and
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Fluitt point to the deficiencies with Appellants’ privilege logs and their
refusal to remedy them. But that goes to the question of whether Appellants
have carried their burden to establish privilege, not whether they may assert
their rights in the first place. Finally, the third factor, Appellants’ personal
stake in the outcome, is obvious. Appellants’ alleged privilege will be
breached by the district court’s order. See Chagra, 701 F.2d at 359
n.6
(citations omitted). We find there is non-party appellate standing here.
C. Mootness
Next, the Government argues that the appeal is moot because it has
already turned over the disputed materials to Fluitt in response to the district
court’s order. The Government’s argument rests on a misunderstanding of
Perlman. It says that a Perlman appeal exists to allow review of an order that
forces a party to choose between disclosing allegedly privileged material and
defying the order and being held in contempt. Once disclosure has occurred,
that choice no longer exists and “a Perlman appeal serves no function.” That
is incorrect. Perlman creates a path to appeal for persons who are not the
target of turnover orders—persons who never face the choice between
disclosure or contempt. To the extent the Government is arguing that the
appeal is moot because the allegedly privileged materials have already been
disclosed, we can still provide HSE and Satary effective relief by requiring
the clawback of the disclosed materials or prohibiting their disclosure to the
Prosecution Team. See In re Avantel, S.A., 343 F.3d 311
, 323–24 (5th Cir.
2003). The appeal is certainly not moot.
D. Abscondence
As mentioned, Satary absconded sometime between the filing of
Appellants’ opening and reply briefs. Fluitt and the Government argue that
Satary’s appeal should be dismissed under the discretionary fugitive
disentitlement doctrine. “It has been settled for well over a century that an
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appellate court may dismiss the appeal of a defendant who is a fugitive from
justice during the pendency of his appeal.” Ortega-Rodriguez v. United States,
507 U.S. 234, 239
(1993). There are “a number of justifications” for this rule.Id. at 242
. The court may not be able to enforce its judgment against a defendant who is out of custody.Id. at 240
. The dignity of the court is offended and the efficiency of the appellate process is impaired by the defendant’s absence.Id. at 242
. And the threat of dismissal may deter other defendants from absconding.Id.
Two of the rationales listed above favor applying the doctrine in this
case, and two weigh against it. Satary’s abscondence is offensive to the
dignity of the Eastern District of Louisiana, where he is being prosecuted,
and to the dignity of this court in which he has sought an appeal. Strict
application of the doctrine may have some deterrent effect too. However, the
enforceability of this court’s judgment is not affected by Satary’s absence.
The district court’s order directed the Government to disclose the disputed
discovery to Fluitt, and this court’s judgment may be enforced on remand
regardless of Satary’s presence. Additionally, the efficacy of the appeals
process in this case is not significantly impaired by Satary’s absence. Satary
presented his principal arguments in his joint opening brief with HSE, and a
reply brief is optional under the Federal Rules of Appellate Procedure. See
Fed. R. App. P. 28(c). His arguments against disclosure are almost
identical to HSE’s, 6 meaning we can largely resolve Satary’s arguments in
_____________________
6
Satary raises one additional Fifth Amendment argument—consisting of one
paragraph and two citations. It is meritless. The Fifth Amendment is inapplicable to an
order compelling the Government, not Satary, to turn over documents. See Fisher v. United
States, 425 U.S. 391, 408
(1976) (“It is also clear that the Fifth Amendment does not
independently proscribe the compelled production of every sort of incriminating evidence
but applies only when the accused is compelled to make a Testimonial Communication that
is incriminating.”) (emphasis added).
10
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resolving HSE’s. Balancing all of this, we decline to apply the fugitive
disentitlement doctrine to Satary’s appeal.
E. Merits
Proceeding to the merits of the appeal, Appellants argue: (1) they are
not bound by the Protocol Order, so they cannot be deemed to have waived
privilege by failing to meet the Order’s requirements; (2) in any event,
Appellants’ privilege logs were sufficient to establish their claims of
privilege; and (3) Fluitt has not shown that he is entitled to the potentially
privileged material. Each of these arguments fails.
First, Appellants’ argument that the Protocol Order cannot oblige a
non-party to submit a privilege log is a red herring. The magistrate judge
“accede[d]” to the Appellants’ refusal to be subject to the Protocol Order
and instead considered Appellants’ assertions of privilege insufficient under
federal common law. In other words, the Fluitt Protocol Order was not the
basis for the magistrate judge’s decision.
“A [privilege holder] asserting a privilege exemption from discovery
bears the burden of demonstrating its applicability.” In re Santa Fe Int’l
Corp., 272 F.3d 705, 710
(5th Cir. 2001) (citations omitted). This burden is imposed by federal common law. See In re Grand Jury Proc.,517 F.2d 666
, 669–70 (5th Cir. 1975) (quoting United States v. Woodall,438 F.2d 1317, 1327
(5th Cir. 1970) (en banc), cert. denied,403 U.S. 933
(1971)). As “the [privilege holders] asserting the privilege,” HSE and Satary “bear[] the burden of proof.” EEOC v. BDO USA, L.L.P.,876 F.3d 690, 695
(5th Cir. 2017)
(citations omitted). To the extent Appellants are arguing that the magistrate
judge adjudicated their claims of privilege under standards only contained in
the Protocol Order, they are incorrect. The magistrate judge evaluated
Appellants’ privilege logs under the standards established by federal caselaw.
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There was no legal error in requiring the Appellants to sustain their
assertions of privilege under these standards.
Second, the magistrate judge did not abuse her discretion in holding
that Appellants’ privilege logs failed to adequately substantiate their
assertions of privilege. The magistrate judge found that Appellants’ privilege
logs “do not provide a description for the documents/emails to explain why
each should be protected from disclosure.” This is correct. The privilege logs
list only the names of the parties to the document or communication, the
date, the “file name” (the subject line if an email), and an assertion of
privilege (e.g., “attorney client privilege” or “common interest doctrine”).
As the magistrate judge explained, this is not enough information to assess
whether the Appellants’ assertions of various privileges are proper. For
instance, attorney-client privilege only extends to confidential
communications between an attorney and her client that were made in order
to obtain legal assistance. Hodges, Grant & Kaufmann v. United States, 768 F.2d 719
, 720–21 (5th Cir. 1985). The privilege can be broken if a third party
is present. Id. (citations omitted). Appellants’ privilege logs do not disclose
the roles of the parties to the communications (attorney, client, neither), nor
do they describe the nature of the communications (legal or non-legal) over
which attorney-client privilege is asserted. 7 The magistrate judge did not
abuse her discretion in concluding that this was insufficient to determine
whether the privilege applies, and thus Appellants failed to carry their
burden. See id. at 721 (“Without evidence of some kind, we cannot determine
whether . . . the attorney-client privilege might properly be extended[.]”);
_____________________
7
Appellants argue that some of the logged emails have “attorney client privileged
and confidential” in the subject line. But even with respect to those emails, that
information is insufficient to establish privilege. See BDO USA, 876 F.3d at 696
; Slocum v. Int’l Paper Co.,549 F. Supp. 3d 519
, 523 (E.D. La. 2021).
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BDO USA, 876 F.3d at 697
(citations omitted). So, too, with Appellants’ assertions of attorney work product privilege and common interest privilege, which require a showing that the materials were prepared in anticipation of litigation, and that the communications were between co-defendants and their counsel, respectively. Adams v. Mem’l Hermann,973 F.3d 343, 349
(5th Cir. 2020) (citing In re Grand Jury Proceedings,601 F.2d 162, 171
(5th Cir. 1979)); In re Santa Fe,272 F.3d at 710
(citations omitted). The privilege logs
are silent as to these dispositive facts.
Third and finally, Appellants’ assertion that Fluitt “has not shown a
need for the documents” and has not “demonstrated any kind of relevancy”
likewise fails. Appellants argue that Federal Rule of Criminal Procedure 17’s
requirements—that documents sought by subpoena be relevant, admissible,
and requested with specificity—should apply. As an initial matter, the record
does suggest that Fluitt “has a need” for the potentially privileged
documents, at least as much of a need as must exist to compel the
Government’s disclosure to the defense in a criminal proceeding.
Specifically, the Government determined that the potentially privileged
materials were material to preparing Fluitt’s defense and, therefore, that it
was obligated to disclose the materials under Federal Rule of Criminal
Procedure 16(a)(1)(E)(ii). Furthermore, Fluitt has not subpoenaed HSE or
Satary for the potentially privileged documents. Instead, those documents
are in the Filter Team’s possession and Fluitt has moved for their disclosure
over Appellants’ assertions of privilege. Because the Government possesses
the disputed documents and has determined that it must disclose them to
Fluitt under Rule 16, Appellants’ analogy to a Rule 17 subpoena is inapt.
Accordingly, the magistrate judge did not abuse her discretion in failing to
require Fluitt to make a showing of relevancy before she granted his motion
to compel.
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Appellants also argue that the Government possesses their potentially
privileged material in violation of Federal Rule of Criminal Procedure
41(e)(2)(B) and the Fourth Amendment, and that it should not be allowed to
disclose material not lawfully in its custody. The proper procedure for
challenging the lawfulness of the original search and seizure, outside of a
motion to suppress, however, is for “the person aggrieved” to file a Rule
41(g) motion “in the district where the property was seized.” Fed. R. Cr.
P. 41(g). Indeed, both HSE and Satary filed Rule 41(g) motions in the Eastern
District of Louisiana contesting the Government’s post-seizure retention of
their materials. See Motion to Suppress, Satary, No. 2:19-CR-197 (E.D. La.
Oct. 4, 2021), ECF No. 199; Motion for Return of Property, Satary, No. 2:19-
CR-197 (E.D. La. Oct. 4, 2021), ECF No. 201. Despite the pendency of
Fluitt’s motions to compel, followed by the district court’s orders granting
those motions and refusing to stay disclosure to Fluitt, HSE and Satary never
sought expedited consideration of the Rule 41(g) motions pending in Satary’s
Eastern District of Louisiana proceeding. Moreover, the Rule 41(g) motions
were dismissed without prejudice when Satary absconded, see Order, Satary,
No. 2:19-CR-197 (E.D. La. Dec. 20, 2022), ECF No. 346, and HSE did not
appeal or seek other relief from that ruling. These Rule 41 arguments are not
part of this interlocutory appeal from a discovery order; we decline to reach
them.
We therefore affirm the magistrate judge’s ruling that Appellants
failed to establish their claims of privilege.
AFFIRMED.
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Andrew S. Oldham, Circuit Judge, dubitante:
This case implicates DOJ’s so-called “filter-team protocols.” As far
as I can tell, DOJ created those protocols in various guidelines that appear in
§ 9-13.420(E) of the Justice Manual. DOJ has submitted these protocols to
magistrate judges and district judges in other parts of the country with mixed
results. Compare In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 183
(4th Cir. 2019) (holding magistrate judge unlawfully authorized filter team and its protocols) and In re Grand Jury Subpoenas,454 F.3d 511, 523
(6th Cir. 2006) (holding district judge unlawfully authorized filter team and its protocols and emphasizing filter “teams present inevitable, and reasonably foreseeable, risks to privilege, for they have been implicated in the past in leaks of confidential information to prosecutors”), with In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means,11 F.4th 1235
, 1250 (11th Cir. 2021) (holding protocols at issue “suffer[] from
none of the defects” identified in previous cases).
In this case, the Government executed a series of search warrants and
seized thousands of documents from the Hurricane Shoals Entities
(“HSE”). The Government later turned over terabytes of data to a DOJ
“filter team,” which in turn disclosed large swaths of it to prosecutors and
defendants in this case and others. And the filter team arrogated to itself the
power to review the seized documents for privilege. As a result, HSE was
forced to assert privilege after its documents had been seized, spread across
the Nation, and subjected to various protocol orders without notice to HSE
or an opportunity to object. That is very different than the typical privilege
dispute, which occurs before disclosure of the privileged document (or
terabytes of privileged documents).
I have no idea what legal standards should apply to filter teams, which
have no obvious foundation in the Federal Rules. I also have no idea how HSE
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should have responded to the filter team after its documents had already been
seized and distributed without its consent. Nor do I understand what
standards we should use to review what happened in the district court. For
all I know, the majority’s judgment might be correct. Nevertheless, I have
serious concerns about the majority’s suggestion that this case should be
evaluated under the plain, old rules that govern traditional discovery disputes
and traditional privilege assertions. There is nothing traditional about filter
teams.
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
UNITED STATES OF AMERICA *
*
*
v. * No. 3:20-cr-00196-TAD-KLH
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GEORGE M. FLUITT III *
ORDER
Having considered the United States’ motion requesting authorization and entry of
a protocol to govern the disclosure of discovery material that have been or are potentially
subject to claims of privilege by Defendant and third-parties, and for good cause shown,
IT IS HEREBY ORDERED THAT:
1. The United States’ motion is GRANTED, and the protocol set forth in Paragraphs
2-10, below (hereafter “Protocol”), shall govern the disclosure of discovery material that
have been or are potentially subject to claims of privilege (hereafter “Potentially Protected
Material”) by Defendant and third-parties in this case.
2. The Protective Order issued on November 12, 2020 (Dkt. 17) shall apply to any
discovery material produced by the filter team established by the United States in this
case (hereafter “Filter Team”) to Defendant or a third-party pursuant to the Protocol.
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3. The Filter Team shall segregate the Potentially Protected Material from the
Prosecution Team, unless a court order or the claimant entitled to assert the privilege
authorizes the release of Potentially Protected Material to the Prosecution Team.
4. The Filter Team shall release discovery material that is not Potentially Protected
Material for production to the Prosecution Team and Defendant.
5. The Filter Team shall produce Potentially Protected Material to Defendant under
the following conditions:
a. If Defendant is the privilege holder or is entitled to access the discovery
material by virtue of a Joint Defense Agreement (JDA), Defendant shall
receive a full copy of the discovery material in the same format as it was
provided to the Filter Team. The discovery material shall be subject to the
Protective Order in this case, as well as the Protocol, and may not be further
disclosed or disseminated except as provided in this Order.
b. If Defendant is the privilege holder of the discovery material, the Filter Team
shall notify the Defendant before releasing any of Defendant’s Potentially
Protected Material to the Prosecution Team.
i. Contents of Notice. The notice shall identify the Potentially Protected
Material to be released and the anticipated date of release to the
Prosecution Team, and a copy of the Protocol Order. The Filter
Team shall also provide the Defendant with an electronic index of the
Potentially Protected Material scheduled for release.
ii. Procedures for Objections to Production or Asserting Privilege
Claims. If Defendant objects to the Filter Team’s release to the
Prosecution Team or asserts a privilege claim to protect certain
materials from being produced in discovery, the Defendant will notify
the Filter Team of their position within fourteen (14) days of receiving
the electronic copy of the Potentially Protected Material. The
Defendant’s objection will include a privilege log, setting forth the
claim asserted - such as attorney-client privilege, work product
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doctrine protection, or other legally recognized claim - that precludes
production for each document logged. The log shall also set forth
the document title, subject matter, author(s), recipients(s), date,
transmittal detail (if any), location of author(s) and recipient(s), and
an explanation of the claim asserted against production. Defendant
shall email a copy of his objection and privilege log to the Filter Team.
If Defendant does not respond to the Filter Team’s notice within
fourteen (14) days, the Filter Team may move the Court for a finding
that the Defendant has waived privilege claims.
iii. Procedure for Non-Logged Potentially Privileged Material. The Filter
Team will release to the Prosecution Team the Potentially Privileged
Material that Defendant does not include on the privilege log.
iv. Meet and Confer. After the Filter Team receives the Defendant’s
objection and privilege log, the parties shall have five (5) business
days to meet and confer to try to resolve any areas of disagreement
concerning the asserted privilege claim.
v. Motion to Compel. If the Defendant and Filter Team cannot come to
an agreement as to the asserted claim(s), the Filter Team shall then
have seven (7) business days from the date of the meet and confer
to move to compel production of the disputed Potentially Protected
Material. The Filter Team shall attach a copy of the Defendant’s
privilege log and a copy of the disputed material or document(s)
along with its memorandum containing any factual or legal
arguments.
vi. Response to Motion to Compel. Within seven (7) business days of
the filing of a motion to compel, the Defendant shall file a response
supporting his claim.
vii. Reply Motion. Any reply in support of the motion to compel will be
due within five (5) business days of the responsive filing.
viii. Permitted Use. If the Court thereafter authorizes the Filter Team to
release the disputed Potentially Protected Material to the
Prosecution Team, the Court will retain jurisdiction to determine if,
and under what circumstances, Defendant or the Prosecution Team
may use the Potentially Protected Material at trial.
c. If Defendant is not the privilege holder of the discovery material or is not
entitled to access the material by virtue of a JDA, before producing any of
a third-party claimant’s Potentially Protected Material to Defendant, the
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Filter Team shall notify the third-party claimant that their Potentially
Protected Material will be produced as part of the discovery to Defendant,
unless such notice would jeopardize an ongoing investigation. In that case,
the Filter Team shall seek authorization from the Court as to how to release
the Potentially Protected Material at issue to Defendant.
i. Contents of Notice. The notice shall identify the Potentially Protected
Material to be produced, the anticipated date of production to
Defendant, the criminal case number, and a copy of the Protocol
Order. The Filter Team shall also provide the claimant with an
electronic copy of the Potentially Protected Material scheduled for
production.
ii. Procedures for Objections to Production or Asserting Privilege
Claims. If a claimant objects to the Filter Team’s discovery
production to a Defendant, release to the Prosecution Team, or
asserts a privilege claim to protect certain materials, the claimant will
notify the Filter Team of their position within fourteen (14) days of
receiving the electronic copy of the Potentially Protected Material.
The claimant’s objection will include a privilege log, setting forth the
claim asserted - such as attorney-client privilege, work product
doctrine protection, or other legally recognized claim - that precludes
production for each document logged. The log shall also set forth
the document title, subject matter, author(s), recipients(s), date,
transmittal detail (if any), location of author(s) and recipient(s), and
an explanation of the claim asserted against production. A third-
party claimant shall email a copy of their objection and privilege log
to Defendant and the Filter Team. If claimant does not respond to
the Filter Team’s notice within fourteen (14) days, the Filter Team will
provide Defendant with information regarding the Filter Team’s
attempts to contact the claimant. Thereafter, Defendant may move
the Court for a finding that the claimant has waived privilege claims.
iii. Procedure for Non-Logged Potentially Privileged Material. The Filter
Team will release to the Prosecution Team and produce to the
Defendant the Potentially Privileged Material that the claimant does
not include on their privilege log.
iv. Meet and Confer. After the Filter Team receives the objection and
required privilege log from the claimant, the parties shall have five
(5) business days to meet and confer to try to resolve any areas of
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disagreement concerning the third-party’s asserted privilege claim.
The Defendant shall be given notice of the date and time of the meet
and confer, and Defendant may participate through counsel.
v. Motion to Compel. If the parties cannot come to an agreement as to
the third-party’s asserted claim(s), the Filter Team (or Defendant if
he objects) shall have seven (7) business days from the date of meet
and confer to move to compel production of the disputed Potentially
Protected Material. The moving party shall provide a copy of the
third-party claimant’s privilege log and a copy of the disputed material
or document(s), along with their memorandum containing any factual
or legal arguments. If the moving party is Defendant, the Filter Team
will provide the disputed Potentially Protected Material to the Court
ex parte for in camera review.
vi. Response to Motion to Compel. Within seven (7) business days of
the filing of a motion to compel, the claiming party shall file a
response supporting its claim.
vii. Reply Motion. Any reply in support of the motion to compel will be
due within five (5) business days of the responsive filing.
viii. Permitted Use. If the Court thereafter authorizes the Filter Team to
produce the disputed Potentially Protected Material to the
Prosecution Team and to Defendant, the Court will retain jurisdiction
to determine if, and under what circumstances, Defendant or the
Prosecution Team may use the Potentially Protected Material at trial.
d. The Court retains jurisdiction to adjudicate any dispute or resolve any
privilege claim asserted over the discovery material produced pursuant to
the Protocol.
e. If Defendant or a third-party claimant fails to provide a privilege log to the
Filter Team and/or Defendant sufficient to allow the reviewing party or the
Court to determine the nature of the claim, or fails to meet and confer, the
Court may determine that such actions constitute waiver of a claim.
f. If a privilege claim was asserted by a third-party and not later challenged by
the Filter Team or Defendant, the Filter Team or the Court may direct
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Defendant or the Prosecution Team to return or destroy any items that were
produced in discovery but remain subject to a non-challenged privilege
claim. Under these circumstances, Defendant must return or destroy
Potentially Protected Material at the request of the Filter Team unless they
receive the Court’s approval to retain the material.
6. Pursuant to Fed. R. Evid. 502(d), any Potentially Protected Material disclosed to a
third-party or Defendant pursuant to this Protocol Order or subsequent disclosure order,
shall not constitute, or be deemed, a waiver or forfeiture of any privilege claim in any
federal or state judicial or administrative proceeding other than these federal proceedings.
7. The Government or Defendant shall have the right to present to the Court any
document to determine if an exception, such as the crime-fraud exception, or a waiver,
such as a subject-matter waiver, applies to the Potentially Protected Material. Production
pursuant to this section shall not be grounds for a waiver argument by the Government
or any other party pursuant to Fed. R. Evid. 502(d).
8. If any member of the Prosecution Team inadvertently reviews an item believed to
be protected by the attorney-client privilege, work-product doctrine, or any other legally
recognized privilege, the Prosecution Team member shall turn the item over to the Filter
Team for resolution through the filter process. Inadvertent review shall not automatically
disqualify the Prosecution Team member from this matter.
9. The notification and filing deadlines set forth in this Protocol may be extended
based on the written agreement of the parties, or by any party requesting the same from
the Court upon good cause shown.
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10. The United States shall provide a copy of this order to all known potential third-
party claimants within five (5) business day of the entry of the Order.
DONE and ORDERED in Chambers at Monroe this day of December, 2020.
_______________________________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE
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