In In re: Sealed Searched Warrant and Application for a Warrant by Telephone or Other Reliable Electronic Means (United States v. Korf et al.), No. 20-14223 (Aug. 30, 2021) (Martin, Rosenbaum, Luck) (per curiam), the Court upheld the denial of a motion to enjoin the use of a government filter team.
The government executed a search warrant at a suite of offices, and included in the materials seized were those from the office of an in-house attorney. Relying on Rule 41(g), the clients intervened and sought an injunction prohibiting the government’s filter team—consisting of government attorneys and staff who were not involved in the investigation—from reviewing any potentially privileged documents without their consent or court approval. On appeal, the Court first concluded that it had appellate jurisdiction because the intervenors sought only the return of their property, not invalidation of the seizure, and that was sufficiently independent of any forthcoming criminal judgment. However, the Court found no abuse of discretion in denying the request for injunctive relief because the intervenors could not show a substantial likelihood that they would succeed on their claim that a government filter team per se violates their rights, or that the filter protocol in place here would violate their rights. The filter protocol here allowed the intervenors to conduct an initial privilege review, and it required their permission or a court order before releasing any purportedly privileged documents to the investigation team.
https://media.ca11.uscourts.gov/opinions/pub/files/202014223.pdf