Federal prosecutors are seeking review of an appellate decision that invalidated their method of searching potentially privileged law firm files last year.
Prosecutors seized files and emails from Brown, Goldstein & Levy LLP last year as part of an investigation into one of the firm’s attorneys and a past client, Baltimore attorney Ken Ravenell.
The 4th U.S. Circuit Court of Appeals ruled in September that the files should have been reviewed by a neutral magistrate judge, not by a “filter team” containing prosecutors, and ordered the files be transferred to a magistrate immediately. The three-judge panel’s decision was unanimous and on Wednesday prosecutors petitioned the full 4th Circuit to rehear the case.
In their petition, prosecutors claim that the three-judge panel “relied on broad language” and that they are concerned the decision will affect future search warrant authorizations and “significantly compromise the government’s ability to undertake covert investigations to identify serious criminal wrongdoing.”
Ravenell was charged with racketeering, drug and money laundering conspiracy offenses in September by the U.S. Attorney’s Office for allegedly receiving payments from a drug trafficker client and his associates in exchange for instructions on how to evade police and continue their operations.
But before the indictment was handed down, Brown, Goldstein & Levy was in court arguing that the search of emails and client files was inappropriate and that the “filter team” put in place to avoid exposing the prosecutors working on the case to privileged information was an insufficient protection.
The filter team, established by a magistrate judge, included lawyers from the prosecutor’s office, a legal assistant and a paralegal, IRS and DEA agents and forensic examiners, according to the 4th Circuit opinion. They were not involved with the prosecution of Ravenell or his attorney, Joshua Treem, referred to as Client A and Lawyer A in court filings.
During a six-hour search at Brown, Goldstein & Levy, “agents seized voluminous materials,” including all of Treem’s email correspondence — approximately 37,000 received emails and 15,000 sent emails, according to the opinion, which added that partners at the firm “voiced objections” about the breadth of the search.
The 4th Circuit concluded that the law firm faced potentially irreparable harm by allowing federal agents and prosecutors to review documents that had nothing to do with their investigation and said that the magistrate judge gave “short shrift to the important legal principles that protect attorney-client relationships.”
Attorneys for Treem argued in their brief to the 4th Circuit that a filter team of prosecutors set up to review materials was “fishing in an ocean of unrelated client confidences,” while attorney James P. Ulwick called the raid an “adversary review of privileged material” at oral arguments.
Ulwick, of Kramon & Graham P.A., represents Brown, Goldstein & Levy.
In their petition for review, prosecutors argue the government was “simply evaluating the possibility that documents in its possession might be privileged” in its filter process. By the time the case was on appeal, the magistrate judge had also already modified the filter protocols to prohibit the team from providing any materials to prosecutors without obtaining permission from the firm or a determination about privilege by the judge.
The 4th Circuit “should have analyzed the protocols here through that lens of Fourth Amendment reasonableness,” according to the petition, and ruled on those protocols alone.
The panel’s ruling is stayed while the petition is pending.
The case is U.S. v. Under Seal, 19-1730.