By Carolina Journal Staff
- A 4th US Circuit Court of Appeals judge is concerned that a decision Friday in a North Carolina case sets a bad precedent for the attorney-client privilege.
- Judge Marvin Quattlebaum agreed with colleagues that the 4th Circuit could not consider an appeal challenging the rules the federal government will use when sifting through records seized from a criminal defendant.
- Quattlebaum wrote separately from his colleagues to urge the US Supreme Court to “loosen the reins” of a 2009 precedent.
A federal Appeals Court judge raised concerns Friday about a North Carolina case’s potential negative impact on the attorney-client privilege. He urged the US Supreme Court to “loosen the reins” of a precedent case from 2009.
A three-judge appellate panel agreed Friday to dismiss an appeal from a defendant identified only as John Doe. Judge Marvin Quattlebaum agreed with the decision but wrote a separate concurring opinion to highlight his concerns.
Doe challenged a trial judge’s ruling about the way the federal government would review records seized by the FBI and IRS in 2022. Authorities were investigating Doe for “suspected wire fraud, money laundering, and tax fraud,” according to the 4th Circuit’s majority opinion.
The government seized records from Doe, then set up a “filter protocol” to separate documents that could head directly to prosecutors from documents Doe could shield from authorities because of the attorney-client privilege. Doe also would be allowed to protect “work product,” the legal definition for material prepared in anticipation of litigation.
“Doe claims that his electronic devices seized by the government contain privileged information,” Quattlebaum wrote in his concurrence. “The government doesn’t deny that assertion. Instead, it responds that Doe’s privileges can be protected by the protocol it proposed, which the district court approved, over Doe’s objection.”
“Under that protocol, the government’s ‘Filter Team,’ which would be walled off from the government’s ‘Prosecution Team,’ would separate information into two groups: (i) information that is potentially protected and (ii) information that is not,” the concurring opinion continued. “To make this first cut, the Filter Team would run ‘a comprehensive list of privilege-related search terms over the entire population of records.’ For the search terms to be effective, though, the Filter Team would need Doe to provide it with certain identifying information.”
“If any record returns a hit on a search term, the record, along with any attachments, would be sequestered and designated as potentially protected,” Quattlebaum wrote. “The Filter Team would hand the remaining materials over to the Prosecution Team. At that point, the Prosecution Team would be free to review the documents and use them in its prosecutorial efforts.”
Doe objected to the government’s plan for filtering documents. “Doe argues on appeal that the protocol violates his constitutional rights,” Quattlebaum wrote. “First, according to Doe, the protocol puts him in a lose/lose situation. To protect his privileges, he would have to cooperate in his own prosecution by providing search terms to the Filter Team. Doe contends he should not have to assist the government in their investigation and prosecution of him.”
“And he further argues that providing information to the government might reveal self-incriminating evidence. All this, he says, violates his Fifth Amendment rights. In order to protect his Fifth Amendment rights, he can refuse to provide search terms. But that potentially forfeits his privileges, which emanate from the Sixth Amendment,” the concurrence continued.
“According to Doe, either way he turns, the protocol tramples on his rights,” Quattlebaum added. Doe also raised the issue of “false negatives,” meaning privileged documents that would not be flagged through the filter protocol’s search terms.
“Doe maintains these problems could be avoided by handling privileges the way they are handled in most every other situation,” the concurrence explained. “Before the adverse party — here the government — could review his materials, Doe — as the owner of the materials and holder of the privileges — would have a chance to review them and object to turning over any materials that he claims are privileged. If the government objects to his claim of privilege, and the parties are unable to resolve the dispute, the court could review the document and make a privilege determination.”
Yet the Appeals Court cannot address Doe’s concerns.
Judges Julius Richardson and Steven Agee agreed that a 1962 precedent, DiBella v. United States, blocked the Appeals Court from hearing Doe’s case.
Quattlebaum wrote that he was “skeptical” about applying the DiBella precedent to Doe’s case. Yet Quattlebaum agreed with his colleagues that the 4th Circuit couldn’t hear the case.
“Even if DiBella does not apply, there must be a proper vehicle for us to consider Doe’s interlocutory challenge. And considering Mohawk Industries, Inc. v. Carpenter, I am not at all sure such a vehicle exists,” he wrote.
The Mohawk case, from 2009, also addressed appeals from disclosure orders affecting attorney-client privilege.
“Regrettably, under current law, I see no vehicle permitting interlocutory review of Doe’s challenges to the district court’s order. So, I must concur,” Quattlebaum wrote. “But make no mistake, protocols like this one run the risk of hollowing out both the attorney-client privilege and the work-product doctrine.”
“Mitigating that risk, in my view, would be worth the costs of a possible delay in Doe’s criminal investigation or any inconvenience of piecemeal litigation,” he added. “Thus, while binding precedent requires me to concur, I would respectfully encourage the Supreme Court to consider loosening the reins of Mohawk to permit interlocutory review of privilege-based challenges to screening protocols and urge district courts to consider these issues before ordering such protocols in similar cases.”
