core admins your b for harbor health care system we are here today because the government seized my client's legal and compliance materials during a pending investigation without prior judicial approval specifically they seized the entire e mail accounts for the former general counsel of the corporation as well as the director of compliance and even after the director of compliance warned the government that he managed the legal function of her and that his office contain many privileged documents the government still entered the office carted away boxes of hard copy documents copies tire computer and even took the privileged even i'm sorry the privilege memo on the pending government best a geisha and then look beyond just well let me explain it the point i was going to was that the it is a stipulated fact in this case that the government did took these the legal in compliance materials without prior authorization remedy at this time that this court order the return of our legal in compliance materials based on the fact that the government lacked prior judicial authorization and they lacked a warrant particularly describing the seizure of these materials and as for our other issue going to the scope or the execution of a general warrant the relief we would seek is for this execution of a search warrant in the plain language of rule forty one allows a party that is aggrieved by an unlawful search and seizure to file a motion for return of property  government has argued that we see suppression of evidence we do not we have no means korean dykeman to even the rule we would be in not under an obligation to retain this material and the government would have the opportunity to get it by another lawful means but it should concern all of us when the government is taking privileged material by their own admission without prior judicial authorization that flies in the face of the respect that the federal judiciary has shown for the attorney client privilege in the attorney work product for decades ever to have the problem i mean i agree at if i were queen for the day i would treat attorney client privilege with much greater reverence but we have the mohawk ca doesn't it says oh ok you know privilege can be decided later it's not something that's a collateral issue that can be immediately appeal so i realize that's not where he went he case of the law as it's a little bit of a different context to of mohawk was dealing with competing concerns namely a party's ability to appeal a district court's decision that the privilege should not apply and the possibility for interlocutory appeal and for piecemeal litigation we don't have that in this case when the district court dismissed our case the case was a back to flee over let me tell you the cases that we believe show the traditional respect of ford the attorney client privilege by the federal judiciary and i would tell you for decades there has been a clear line here that the government does not cross intrude into the attorney client privilege in the attorney work product of a party under investigation unless they make an extraordinary showing to a court that those attorneys were somehow involved in wrongdoing such that the privilege should not apply  compromise here where the government passed back to harder and harder substantial effort and expense lobbying the privileged documents that have been seized in the executions search w determined that there are three thousand eight hundred and forty three privileged documents out of a twenty three thousand in mr sprott the director of compliance e mail account alone and at this stage where the case ended was that the government is claiming their right not withstanding this process the government is claiming the right to then take a taint team or a filter team and still review those materials and to get to the case we really rely on that a clear application shows the government should not have this automatic right to review privileged privileged attorney client communications is zola remember solon is the case where the government asked a judicial officer to review punitively privilege materials to determine whether the privilege in fact applied in the supreme court held that there could be no blanket rule allowing even a judicial officer to review those materials so if a officer of the court does not have the room for room forty one she really is i think the only adequate remedy get it back and i'm i would commend this quarter to look again at the foundational case richie b smith specifically footnote eleven which talks about how a leader motion to suppress is not an adequate remedy and the government confuses suppression in return as remedies all through their brief but foot weapon really speaks to the fist circuits understanding of the differences suppression invokes the exclusionary rule and so suppression doesn't return to your privilege materials the privacy violation can continue what suppression does is it prevents the government at a later time if you are indicted you may never be indicted from offering that material in their case and cheat a motion for return is the only mechanism to your question judge l rod big kid help someone in our situation who believes that their privilege materials have taken have been taken in violation of the wall and there's frankly no colorable issue here to dispute that the government violated the th amendment when it sees these materials without prior judicial authorization and they further if you look at the stipulation violated their own internal policies that require special approval in washington before they do it and the purpose of those policies is to protect the attorney client privilege so i  investigation is i have to admit i'm confused by our president on this subject to me yes you begin with an indictment a glass and casey says that and then says no so that is hard to follow your recipe seems to say no to that but then we have confusion reading what the case saw his done and develop the good news here is under the binding precedent of the circuit we don't get to develop and richie v smith the th circuit said that if the court dismisses a rule forty one dollars motion for lack of jurisdiction it's an appealable order and you don't get to do bella in six richie v smith they pointed out what's just basic justice otherwise n the same thing as finding that something's mood or no standing or something like that oh i think there's a distinction and there's no doubt that the district court dismissed for lack of jurisdiction that's the relief the government saw and they filed a motion that said you know we don't get to the merits you should deny equitable jurisdiction nothing to see here judge and so there's no doubt that's what happened in the point is there's there's no other action here the argument that because there's a grand jury proceeding there's a prosecution an essay we have no right to we're not a party to the grand jury so clear that what the supreme court may have meant was you're talking about whether there's formal charges have been brought so they talk about whether there's an indictment in information and arrest so look at that plain language think about how absurd the rule would be if a grand jury proceeding could prevent appellate jurisdiction all the government needs to do is send somebody over the grand jury for fifteen minutes to introduce the case and now they foreclose the right to appeal and how would a appellate someone aggrieved by an unlawful search and seizure ever know when their rights to appeal have started to run because i'm sorry grand jury proceedings are in secret so to define prosecution in s c other than the plain meaning of that phrase which is the initiation of formal charges leads to eps or it in an unfair rule  see my time's up subject to an ongoing grand jury investigation into potential health care abroad but actions i can represent to the courts questions that there is a grand jury investigation into best seating the print the details  ok so tell me how something could be n s a when that the potential defendant doesn't even necessarily know maybe the name now knows because you said it and said it in the bringing someone bit how can that be execution of the issuance of the search warrant is merely a step in the criminal proceeding and then there or be the reasoning behind a bell applies there we think i mean if you rea this reading then reading that and i i knew judge g and respect him deeply but i'm lost how you can square that to say bell says its indictment cetera but we don't agree with the circuit  indictments are how do we square that precedent for and follow it properly your honor i think that b court has had the chance and simon's to address that as well and has followed that i understand there might have been some lack of clarity in the glas original glasman decision but the court stated them as much in your arrest as well and said that an indictment was not essential to a finding of not of your willoughby we think most fundamentally those cases dismissible under the earth product privileges documents back because they knew they were seized without prior authority and you violated the internal process and d o j in taking notes for one most important your honor the answer is that they they basically have their documents judge and that's you not to have them you not to have them you don't get to have their privilege documents even if they're kept in a separate safe f as isolated the government itself the vast government does not get to have those documents your honor that is what i understand is occurring with the privilege log process the judge chain and his broker the government is segregating and not providing access to those documents the investigative team and does have no interest in keeping privileged documents if the government has no interest in keeping the privileged documents then why doesn't th documents electronically your honor i i'm not privy to the details of how that exact exactly working but i actually understand understand that that is what the government is attempting to do is attempt anything to return them or is it attempting to just keep them safe in their possession per i understand they're attempting to just delete interest for urban delete and destroy privileged documents and make sure that they cannot be accessed by the investigative team i would take issue with the notion that there anything to quote unquote return because of the fact that armor as from day one had copies of its e mails had copies of its servers and everything at  requires a showing a probable cause in triplicate as court noted that it in the computer age it is necessary to seize the entirety of the e mail accounts or the entirety of computer hard drives and in order to determine whether particular documents in particular e mails all within the scope of this or the court already and that is turning to the merits a bit but that is something that is permissible under the th amendment and does not show mean that's why i'm using something more tomorrow or the doctor example you know the doctor patient privilege where you just have something embarrassing in what you claim you're a criminal i would prefer you violated some crime it's not a matter of is this going to be introduced in front of the jury that you are in here or you just don't want people to know about this then that's why we have that privilege so people will go to doctors and be honest sarah to treat it so maybe you don't want the world privilege that it's private even if the attorney said i think you did everything right you still would want to turn over that thought and as it's a privilege your honor i understand the concerns with embarrassing events which to me read that sound in harbor scope argument that there are documents that will naturally be outside of a scope warrant on the on the servers and the government is entitled to once they've made a showing of probable cause determine whether something is relevant to the potential health care problem which these morons outline the warrants were limited would st have been the privilege of well i'm not just saying oh well i called my best friend a secret now it's out in the world i'm talking about why the core privilege is more than just what your lawyer tells you can be used against you is what your lawyer tells you is private confidential privileged as a lawyer i would not be allowed to even talk about my client even though everybody knows as my client because of the confidentiality it's so cool and so please explain to me how this process where it clearly the investigative people did get some privileged documents in any way re filter team arbor has had an opportunity to make such a showing and there is no evidence whatsoever that a single document cross the wall in this record the government set up a filter team of entirely separate attorneys  to review these documents and make sure that no privileged documents cross the wall and harbor have had every opportunity from the been a one to participate in that process within weeks harbor provided harbor was requested to provide and did provide e mail addresses and names of attorneys who who have represented harbor in the past our at that time could have provided the person i scribbled documents to the builder to think that just because the investigative team doesn't have it nothing more is to be done so i am very confused because earlier you said that things were being destroyed is it the policy  practice that the cain team or the filter team or which one of these other teams is going to destroy all of these privileged documents and that the harbor will keep them in their drive preserved and then it will some point you can teach your privilege by it but that you don't get to keep them in a file until that day arbor gets to keep them and so i think sometimes you said at one point you were destroying but then this is you said oh well it's just the investigative people don't have theirs that's two different things yeah i think you're right i understand and i think the answer is truly that the only reason these documents would be retained in any respect is for at some point the filter came to attention to review them down the line that is not occurred and that would be only for a filter team to review them  interest that's a very low interest there's no that's not a legitimate reason to retain documents that were obtained without prior authority your honor and i would also take issue with mr series notion that and they also their compliance person specifically said they were acting in filtering the invite and that was known fairly early your honor and our position is that a rule that harbor advances would mean that any time the terms your honor i think the government has no interest at the end of the day if documents are deemed to be privileged in keeping them at all and they will be deleted so you're saying that moot because you're going to do what they've asked new today because you're going to do delete these documents is that what you're saying i don't have the words in your mouth i'm confused no that's precisely right your honor this case is moot today because the government is intending to delete these documents intimidating kind of boss is maybe because this case is been pending so if you're intending then why didn't you do it then you could have mooted this oral argument and we would have moved on to the next one that instead you clearly still have the documents as you keep speaking of the future and this case has been pending in our court who are quite some time so there's certainly been enough time to go into a computer and go delete delete delete delete it doesn't take years to do that your honor i understand and our position is that the heart for one harbor has still not completed the privileged review process so the government has only harbor i understand it still reviewing custodians emails and it has been a year and that is a source of perspiration we are our side as well that we do have an interest in x x that is the viciously getting to the bottom of this and ensuring that if the filter team does wish to review documents in the future they they might to challenge those designations but after conferral they might not so well it doesn't sound like the destruction is imminent then it  sounds like it's totally in your hands and it's you know lateral and it may or may not happen and so so i don't know what to do with the idea that says oh we're going to destroy them because it's not there's no particular day or time this is going to be done and you still have a lot of caviar it's about whether or not you think there might be step right to retain some of the documents you are and that is a good point that we are we are hoping that harper finishes  spending your on her i know my empathy and the under the only reason they haven't been destroyed is for the potential for a filtered future filter team if if the criminal team who looks at the privilege logs and disagrees for some reason legitimate reason as long as they keep a copy of it and there's a privilege blog then they can have that dispute in the actual lawsuit your honor i i think that's not i think that's us so what's going on here yes and you have a grand jury and it's quite plain that you are tending the seed with that and sometimes you don't need to come in on that but what will happen then there's a this entire matter will be  points i think in this case effectively it's i think the question of whether a special master or a future filter team is not yet right of course but i think it might be  challenge here and i think you your earl in your question earlier i understand i'm out of time but want to redress your nd point from your question which is that these issues can be addressed if there is an indictment these issues can be addressed in the context of a motion to develop or in the alternative to determine that the district court is not of use discretion pursuant to richie thank you can also we have your argument showed yet again is the government cannot depend what they're doing now and they say whatever they need to say in front of chords and then they go and they do something else my friend from the government just said that they have no interest in keeping our privileged information and yet if you look at the final hearing in this case it is absolutely clear what the issue was the government was asserting the right to review our pr simply our log but the underlying documents without any just cause to do so in the district court acknowledged our right to come up to the visitor good to get a ruling on that issue under sol one and if you look at the record on appeal at one thousand and thirty five and aug st two thousand nine hundred e mail that was sent by the government to me and others after the district court dismissed this case right in the middle of this privilege to review process the government made it clear that now that the judge was out of the picture they were going right back in to inflict the harm we sought to avoid in the st place by filing this case if you look at right there on appeal page three hundred and fifty five of lines twenty clear that a party that's aggrieved by an unlawful intrusion into privacy gets originals and copies why they say that because you can't protect your privacy and once you get the copies back a motion to suppress again is confused with a motion for return of property if we end up in a motion to suppress later in this court has not given us believe that the government will still be sitting on privileged information they should never have as a judge fox or you know what what do you or your escort to do again sir we're asking that the court order the government to return the privileged legal materials from our privilege logs that we be allowed to complete this privilege period and if they don't have any basis to challenge our logs and the basis should be twofold they should be able to show that the document which is specifically identified under privilege log is within the scope of their probable cause showing in the warrant so they have a right to to to seize it and to that they have a basis to challenge the privilege at all should come back but frankly the fact that they never had been to see judith judicial authority to do any of this should entitle this court to do the right thing under the principles of anglo american law and that is to protect you care whether the order is this and i'm not foreshadowing but whether it's destroyed or retard you believe it has to be phrased in return because of forty one g we don't your honor we would we would hope to trust the government that is if it certifies to the destruction of this evidence that in fact did so and if you look if you look in the record in our april nd letter one of the concerns we race with the court was that we were doing all this work to log all these privileged communications and the government wasn't responding whether they challenged our privileged designations whether they would return those privileged documents or whether they destroyed those privileged documents o group i'm sorry do you get to the special master taking the documents from the government your honor i would acknowledge that discussion master is preferable to a government taint team for the reasons judge bob's talks about in his decision in the recent four circuit decision which dives deeply into this but under solon no party should be reviewing our privilege material and they didn't have a right to seize it to begin with  a question is a strong if not my final twenty seconds let me respond to counsel statement that the investigative team never got privileged materials that statement is not accurate if you look at the april nd twenty one thousand letter we informed the court d that we had gotten a copy of the forensic image of what had been passed from the investigative team to the taint team and we found  sprott's e mails in addition there's a log of approximately seventy five documents for from the former general counsel and the court's question my friend from the government was exactly right which was they  documents not only from the director of compliance they seized documents from the former general counsel and in addition the director of compliance is important because he handled the legal function so he was the point person with outside counsel and that's why it was so care so important that the government not intrude upon his e mail and his communications without prior authorization and a good reason to do it so i see my time is up i would finally i would ask the court to reverse this case and i would remind this court it so much depends on an independent judiciary which will hold the government to the law thank you counsel we have your argument we priest yard appreciate the arguments of both parties today of counsel and to the case is submitted we're going to take it ten minute recess before we consider the remaining case the day