United States Court of Appeals

for the Fifth Circuit ____________ No. 22-30316 ____________ United States of America, 

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 

United States Court of Appeals

Fifth Circuit

FILED

April 24, 2024

Lyle W. Cayce 

Clerk 

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2 

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). 

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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.3In 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. 

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material to Fluitt. HSE and Satary’s principal argument in support of nonproduction 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). 

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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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16 

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

*

 * 

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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2

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 thirdparty 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 thirdparty 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 

Case: 22-30316 Document: 133-1 Page: 23 Date Filed: 04/24/2024