PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 14-3752

IN THE MATTER OF THE SEARCH OF ELECTRONIC 

COMMUNICATIONS (BOTH SENT AND RECEIVED) IN 

THE ACCOUNT OF CHAKAFATTAH@GMAIL.COM AT 

INTERNET SERVICE PROVIDER GOOGLE, INC.

Chaka Fattah, Appellant

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-14-mj-00617-001)

District Judge: Honorable Paul S. Diamond

_____________

Argued: January 12, 2015

Before: AMBRO, FUENTES, and ROTH Circuit Judges

(Opinion Filed: September 2, 2015)

Luther E. Weaver III, Esq. ARGUED

Weaver & Associates, P.C.

1525 Locust Street, 14th Floor
2

Philadelphia, PA 19102

Attorneys for Appellant

Kerry W. Kircher, Esq. ARGUED

United States House of Representatives

Suite 219, Cannon House Office Building

Washington, D.C. 20515

Amicus Attorney Appellant Bipartisan Legal Advisory Group 

of the United States House of Representatives

Donald E. Wieand, Jr., Esq.

Stevens & Lee

190 Brodhead Road

Suite 200

Bethlehem, PA 18017

Amicus Attorney Appellant Google Inc

Zane David Memeger, Esq.

Jack Smith, Esq.

Robert A. Zauzmer, Esq. ARGUED

Eric L. Gibson, Esq.

Paul L. Gray, Esq.

United States Attorney’s Office for the Eastern District of 

Pennsylvania

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Attorneys for Appellees
3

OPINION OF THE COURT

FUENTES, Circuit Judge.

This case implicates the Speech or Debate Clause of 

the United States Constitution.1 The Government obtained a 

search warrant to search the email account of Chaka Fattah, a 

United States Congressman. Fattah, along with the 

“Bipartisan Legal Advisory Group of the United States House 

of Representatives” (as amicus curiae), challenged the 

unexecuted search warrant in the District Court primarily on

Speech or Debate Clause grounds. Fattah now appeals the 

District Court’s order denying his motion to invalidate the

unexecuted search warrant. Because an unexecuted search 

warrant is not separate from the merits of the case and is 

reviewable on appeal, if a defendant is convicted, it does not 

qualify for review under the collateral order doctrine. 

Therefore, we lack jurisdiction to review this unexecuted 

search warrant and we dismiss Fattah’s claims under the 

Speech or Debate Clause.

I. Factual and Procedural Background

A. The Search Warrant

 

1 The Speech or Debate Clause provides that, “for any Speech 

or Debate in either House, [Senators and Representatives] 

shall not be questioned in any other Place.” U.S. Const. art. I, 

§ 6, cl. 1.
4

Fattah is the subject of a federal grand jury 

investigation pending in the Eastern District of Pennsylvania.2 

The Department of Justice, the United States Attorney’s 

Office for the Eastern District of Pennsylvania, the Federal 

Bureau of Investigation, and the Internal Revenue Service are 

leading the investigation, which centers on whether Fattah

violated federal criminal laws relating to fraud, extortion, and 

bribery. 

Fattah maintains an email account hosted by Google,

Inc., known as “Gmail.” Google acts as a repository, 

collecting emails sent and received by Gmail account holders 

like Fattah. Fattah uses this Gmail account for personal 

matters, but he also uses it for official business relating to his 

congressional duties.3 For example, Fattah asserts that he 

uses his Gmail account to “communicat[e] with members of 

Congress regarding legislative matters”; to email “the 

schedule and agendas for House Committee meetings and 

related congressional sessions”; and to communicate “with 

[his] staff regarding legislative matters and discussions and 

documents directly relating to proposed legislative matters.”4 

Likewise, Fattah claims that he uses his Gmail account to 

engage in privileged attorney-client communications with his 

legal counsel. 

 

2 Fattah was indicted by a grand jury on July 29, 2015.

3 Each Member of the House of Representatives has an 

official email account. Presently, there is no policy in place 

mandating that Members solely utilize the official account to 

conduct business. [Tr. 28: 18-22]. 

4 Gov’t Supp. App. 15.
5

In February 2014, the Government served Fattah with

a grand jury subpoena seeking various documents, including 

electronic data from his Gmail account. In response, Fattah

turned over some emails but objected to others on the bases of 

the Speech or Debate Clause, overbreadth, and relevance. 

Several months later, a magistrate judge issued a search 

warrant authorizing the FBI to search Fattah’s Gmail account. 

The warrant sought essentially the same information as the 

grand jury subpoena. Specifically, the search warrant 

requested: “For the period of January 1, 2008, through the 

present, concerning Google account 

[ChakaFattah@gmail.com], all items which constitute 

evidence of a criminal violation of 18 U.S.C. §§ 1343, 1344, 

1951, and 201.”5 

Pursuant to Google policy, Fattah received an email 

from Google on June 18, 2014, stating that it had received a 

search warrant from the Government seeking electronic data

from his account. Google explained that it would withhold

the documents for seven calendar days, allowing Fattah time 

to object to the request in a court of competent jurisdiction. 

Fattah filed a motion to intervene and to quash the search 

warrant in the Eastern District of Pennsylvania, arguing that 

the warrant’s execution would violate the attorney-client

privilege and work-product doctrine, the Fourth Amendment, 

and the Speech or Debate Clause.

B. The District Court Opinion

The District Court granted Fattah’s motion to intervene 

but denied his motion to quash the search warrant. The Court 

 

5 Gov’t Supp. App. 11.
6

held that the execution of the warrant would not imperil the 

attorney-client privilege or the protection afforded by the

work-product doctrine because the Government had 

suggested adequate review procedures, which entailed the use 

of a “taint team” to review for privileged documents.

Fattah argued that the warrant and affidavit did not 

make out probable cause and that the warrant was general and 

overbroad. The Court disagreed and additionally noted the 

odd procedural posture of the case, observing that Fattah

“ha[d] cited no reported decision” supporting his contention

that he may raise a Fourth Amendment challenge to a warrant 

prior to its execution.

6

 The Court explained that the proper

remedy for an improvident search warrant is a suppression 

hearing. 

Likewise, the District Court rejected Fattah’s argument 

that the warrant would violate the Speech or Debate Clause. 

The Court reiterated this Circuit’s standard that the Speech or 

Debate Clause secures a privilege of non-use, rather than of

non-disclosure. The Court explained that “even if [Fattah’s]

private emails include a number of privileged documents, the 

mere disclosure of those documents [would] not impugn the 

Speech or Debate Clause.”7 

 

In the alternative to quashing the search warrant, the 

House requested that the Court modify the warrant and allow 

Fattah access to the requested records. Denying the House’s

request, the Court opined that “creating special protections for 

a Congressman’s private email account would encourage 

 

6 App. 12.

7 App. 14.
7

corrupt legislators and their aides to make incriminating 

communications through private emails, knowing that they 

will be disclosed only with the author’s approval.”8 

Fattah also fashioned his motion as a Federal Rule of 

Criminal Procedure 41(g) motion, a request for return of 

property. Fattah argued that the Government was in 

“constructive possession” of his property. The District Court 

denied this motion as well, explaining that because the 

Government has neither actual nor constructive possession, 

Rule 41(g) affords him no legitimate basis for relief. 

Following the District Court’s rulings, Fattah filed a 

notice of appeal to this Court from the District Court’s order

denying the motion to quash the unexecuted search warrant. 

On the same day, Fattah filed a motion to stay the order 

pending appeal. The District Court held a hearing on the 

motion to stay and subsequently denied the motion. 

Thereafter, we granted Fattah’s motion for a status quo order 

and for a stay of the District Court’s order pending appeal. 

II. Discussion

Although Fattah presents several issues on appeal, we

limit our discussion solely to jurisdiction and the proposed 

filtering procedures. Fattah proffers three bases for appellate 

jurisdiction: (1) the collateral order doctrine, (2) the Perlman

doctrine, and (3) Federal Rule of Criminal Procedure 41(g). 

For the reasons that follow, we conclude that we lack 

jurisdiction to consider Fattah’s Speech or Debate Clause 

 

8 App. 16. 
8

claims, but take jurisdiction with respect to his claims 

regarding the filtering procedures.

9

A. The Collateral Order Doctrine

Fattah first contends that under the collateral order 

doctrine, we have appellate jurisdiction. Under 28 U.S.C. § 

1291, an immediate appeal may be taken from any final 

decision of the district court. “Although ‘final decisions’ 

typically are ones that trigger the entry of judgment, they also 

include a small set of prejudgment orders that are ‘collateral 

to’ the merits of an action and ‘too important’ to be denied 

immediate review.”10 Under the collateral order doctrine,

however, a prejudgment order is immediately appealable if it: 

(1) conclusively determines the disputed question; (2) 

 

9 The House also suggests that jurisdiction to hear Fattah’s 

claims may lie under the All Writs Act, as a petition for 

mandamus. Fattah, however, has not sought mandamus 

relief. Furthermore, mandamus is an extraordinary remedy, 

available only where (1) there is “‘no other adequate means to 

attain the relief sought;’” (2) the right to issuance of the writ 

is “‘clear and indisputable;’” and (3) the issuing court is 

“satisfied that ‘the writ is appropriate under the 

circumstances.’” In re Pressman-Gutman Co., Inc., 459 F.3d 

383, 399 (3d Cir. 2006) (quoting In re Briscoe, 448 F.3d 201, 

212 (3d Cir. 2006)). As previously stated, Fattah has the right 

to appeal the denial of a motion to suppress if he is convicted. 

Because Fattah has an adequate remedy in a suppression 

hearing following execution of the warrant, we decline to 

grant jurisdiction under this ground. 

10 Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103 

(2009) (citing Cohen v. Beneficial Indus. Loan Corp., 337 

U.S. 541, 546 (1949)).
9

resolves an important issue completely separate from the 

merits of the case; and (3) is effectively unreviewable on 

appeal from a final judgment.11 A litigant must satisfy all 

three requirements to succeed under the collateral order 

doctrine. We narrowly construe this exception, taking into 

account that “a party is entitled to a single appeal, to be 

deferred until final judgment has been entered, in which 

claims of district court error at any stage of the litigation may 

be ventilated.”12 

Furthermore, the Supreme Court has noted that 

application of the collateral order doctrine involves a 

categorical inquiry and “[a]s long as the class of claims, taken 

as a whole, can be adequately vindicated by other means, the 

chance that the litigation at hand might be speeded, or a 

particular injustice averted, does not provide a basis for 

jurisdiction under § 1291.”13 The Court emphasized, “[t]he 

crucial question . . . is not whether an interest is important in 

the abstract; it is whether deferring review until final 

judgment so imperils the interest as to justify the cost of 

allowing immediate appeal of the entire class of relevant 

orders.”14 

Fattah appeals from the District Court’s order denying 

a motion to quash an unexecuted search warrant on Speech or 

Debate Clause grounds. He relies on our decision in United 

 

11 Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 

867 (1994).

12 Id. at 868.

13 Mohawk Indus., Inc., 558 U.S. at 107 (internal quotation 

marks and alterations omitted).

14 Id. at 108.
10

States v. McDade where we held that we had jurisdiction to 

entertain an appeal regarding a motion to dismiss an 

indictment under the Speech or Debate Clause.15 Fattah cites 

to our language in McDade stating, “[w]e also have 

jurisdiction to review any of the district court’s other rulings 

regarding the Speech or Debate Clause that satisfy all of the 

requirements of the collateral order doctrine.”16 Notably, we 

followed this statement with the caveat that “[o]ur 

jurisdiction, however, extends no further,” recognizing the 

limits of the collateral order doctrine.17 McDade, however, is 

inapplicable because Fattah’s claim under the collateral order 

doctrine falters. We review each requirement below. 

1. The first prong of the collateral order doctrine 

requires us to determine whether the District Court’s order 

conclusively determines the disputed issue. Fattah satisfies 

the first prong of the test. His motion to quash raised the 

issue of whether the search warrant could be executed, and 

the District Court conclusively answered that question in the 

affirmative. Thus, the order conclusively determined the 

disputed issue. Fattah, however, fails to satisfy either the 

second or third prongs, dooming his argument. 

2. The second inquiry of the collateral order doctrine 

asks whether the District Court’s order resolves an important

question completely separate from the merits. Fattah argues 

that the Speech or Debate Clause issues are “extremely 

important issues” that are separate from the merits of the case. 

He contends that because no indictment has been returned, 

 

15 28 F.3d 283 (3d Cir. 1994).

16 Id. at 288.

17 Id.
11

the issue is separate from the merits because there is no 

“underlying action.” He is incorrect.

The Supreme Court has defined an “important issue” 

as “one involving interests that are ‘weightier than the 

societal interests advanced by the ordinary operation of final 

judgment principles’ or one that is ‘serious and unsettled.’”

18

 

Moreover, “an issue is important if the interests that would 

potentially go unprotected without immediate appellate 

review are significant relative to efficiency interests sought to 

be advanced by adherence to the final judgment rule.”19 

Here, Fattah contends that the Speech or Debate privilege is 

one of non-disclosure and that “[t]he district court’s ruling is 

one of important constitutional dimensions broader in scope 

than just the interest of an individual Congressman, being ‘of 

great institutional interest to the House as a whole.’”

20

 

Fattah’s argument, however, misconstrues the term 

“important.” We have held that, “[t]he type of ‘important 

issue[s]’ that the ‘completely separate from the merits’

requirement encompasses are those that are important in a 

jurisprudential sense.’”

21

 First, as we have previously said,

 

18 United States v. Wecht, 537 F.3d 222, 230 (3d Cir. 2008) 

(quoting Digital Equip. Corp., 511 U.S. at 879; Cohen, 337 

U.S. at 547).

19 Pierce v. Blaine, 467 F.3d 362, 370-71 (3d Cir. 2006) 

(internal quotation marks and citation omitted).

20 Appellant’s Br. 25 (quoting In re Grand Jury (Eilberg), 

587 F.2d 589, 593 (3d Cir. 1978)).

21 Praxis Props., Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d 

49, 54 (3d Cir. 1981) (second alteration in original) (quoting 

Nemours Found. v. Manganaro Corp., New England, 878 
12

the Speech or Debate privilege, as applied to records, is one 

of non-use versus non-disclosure. That is, while the privilege 

prohibits evidentiary “use” of records, it does not prohibit 

disclosure of records to the Government in the course of an 

investigation. Thus, the issue is not unsettled—indeed, this 

Court has decisively settled the issue in a manner that 

forecloses Fattah’s argument.22 

Second, in addition to failing to raise an important

issue, we believe Fattah’s claim is not completely separate 

from the merits. The requirements for collateral appeal are

particularly “stringent” in the criminal context because “‘the 

delays and disruptions attendant upon intermediate appeal,’ 

which the rule is designed to avoid, ‘are especially inimical to 

the effective and fair administration of the criminal law.’”

23

 

Indeed, the only orders that have been held to fall within the 

collateral order doctrine in a criminal action are: orders 

denying motions to reduce bail; orders denying motions to 

dismiss on double jeopardy grounds; orders denying 

immunity under the Speech or Debate Clause; and orders 

 

F.2d 98, 100 (3d Cir. 1989)) (internal quotation marks 

omitted).

22 See United States v. Helstoski, 635 F.2d 200, 203 (3d Cir. 

1980); In re Grand Jury Investigation (Eilberg), 587 F.2d at 

597; In re Grand Jury (Cianfrani), 563 F.2d 577, 584 (3d Cir. 

1977).

23 Abney v. United States, 431 U.S. 651, 657 (1977) (quoting 

Di Bella v. United States, 369 U.S. 121, 126 (1962)).
13

directing defendants to be medicated against their will to 

render them competent to stand trial.24 

Unlike these orders, which “finally resolve issues that 

are separate from guilt or innocence,”25 a motion to suppress

an unexecuted search warrant may substantially affect the 

merits of the case. We have held that “a pretrial ruling on a 

suppression motion is not a collateral order under 28 U.S.C. § 

1291 because the motion ‘presents an issue that is involved in 

and will be part of a criminal prosecution in process at the 

time the order is issued.’”

26 The same is true of a motion to 

quash a warrant. The fruits of a search warrant may become 

part of the criminal prosecution. In most cases, the fruits 

become part of the evidentiary chain of proof. Therefore, an 

order denying a motion to quash an unexecuted search 

warrant stands in stark contrast to the orders previously 

mentioned, which, for example, challenge the very authority 

of the Government to prosecute a defendant.

27

 Accordingly, 

 

24 See Stack v. Boyle, 342 U.S. 1, 6 (1951); Abney, 431 U.S. at 

659; Helstoski v. Meanor, 442 U.S. 500, 506–08 (1979); Sell 

v. United States, 539 U.S. 166, 176 (2003).

25 Flanagan v. United States, 465 U.S. 259, 266 (1984).

26 United States v. Williams, 413 F.3d 347, 355 (3d Cir. 2005) 

(quoting Di Bella, 369 U.S. at 127).

27 See, e.g., Abney, 431 U.S. at 659 (explaining that “the very 

nature of a double jeopardy claim is such that it is collateral 

to, and separable from the principal issue at the accused’s 

impending criminal trial, i.e., whether or not the accused is 

guilty of the offense charged” and instead the claim 

“contest[s] the very authority of the Government to hale him 

into court to face trial on the charge against him”).
14

Fattah fails to satisfy this requirement of the collateral order 

doctrine.

3. The third prong of the collateral order doctrine 

focuses on whether the District Court’s order is effectively 

unreviewable on appeal. Fattah asserts that the District 

Court’s order leaves him with no remedy since it does not 

limit the Government’s access to or use of Speech or Debate 

Clause documents. First, this argument relies on Fattah’s 

misconception that the Speech or Debate Clause provides a 

privilege of non-disclosure. Instead, as we discuss further 

below, because we have held that it is a privilege of non-use 

when applied to documents, the Government is not prohibited 

from accessing the documents. In addition, his argument is 

plainly belied by our own precedent. In In re Solomon, we 

denied a defendant’s motion to suppress an unexecuted search 

warrant, holding that the defendant had other available 

remedies.28 We explained that the motion to suppress the 

search warrant was not effectively unreviewable because the 

defendant could move to suppress the evidence, and “[i]f that 

motion is denied, and if [he] is convicted, the denial of the 

motion to suppress may then be asserted as a ground for 

appeal from the final judgment.”29 The same is true here. 

Our binding precedent requires us to narrowly 

circumscribe the contours of the collateral order doctrine. 

And, as the Supreme Court has emphasized, “although the 

Court has been asked many times to expand the ‘small class’ 

of collaterally appealable orders, we have instead kept it 

 

28 465 F.3d 114, 122-23 (3d Cir. 2006).

29 Id. at 122.
15

narrow and selective in its membership.”

30

 As such, we 

decline Fattah’s invitation to expand this discerning 

membership to motions to quash unexecuted search warrants. 

Because Fattah’s claim is not completely separate from the 

merits and is reviewable upon appeal, the collateral order 

doctrine is unavailing as a basis for appellate jurisdiction. We 

therefore lack jurisdiction under the collateral order doctrine 

to entertain this appeal. 

B. The Perlman Doctrine

1. The Perlman Doctrine Does Not Provide 

Jurisdiction for Fattah’s Speech or Debate Clause 

Claims.

Fattah’s claims regarding the Speech or Debate Clause

fare no better under the so-called Perlman doctrine. The 

Perlman doctrine refers to the legal principle that a discovery 

order aimed at a third party may be immediately appealed on 

the theory that the third party will not risk contempt by 

refusing to comply.31 Disclosure orders are not final orders 

appealable under 28 U.S.C. § 1291. Rather, “[t]o obtain 

immediate appellate review, a privilege holder must disobey 

the court’s order, be held in contempt, and then appeal the 

contempt order,” which is considered a final order.

32

 The 

Supreme Court’s decision in Perlman v. United States

established an exception when the traditional contempt route 

is unavailable because the privileged information is controlled 

by a disinterested third party who is likely to comply with the 

 

30 Will v. Hallock, 546 U.S. 345, 349-50 (2006).

31 As previously noted, Google, as custodian of the records at 

issue, is the third party in this case.

32 In re Grand Jury, 705 F.3d 133, 138 (3d Cir. 2012).
16

request rather than be held in contempt for the sake of an 

immediate appeal.33 In these circumstances, a litigant 

asserting a legally cognizable privilege may timely appeal an 

adverse disclosure order. The reasoning behind Perlman lies

in the inequity of leaving a privilege-holder “powerless to 

avert the mischief of the order,” and forcing him to “accept its 

incidence and seek a remedy at some other time and in some 

other way.”34 Moreover, Perlman “reflected concern that 

where the subject of the discovery order (characteristically 

the custodian of documents) and the holder of a privilege are 

different, the custodian might yield up the documents rather 

than face the hazards of contempt, and would thereby destroy 

the privilege.”35 The question we address today is whether 

Perlman should apply even where Fattah fails to cite a legally 

cognizable privilege. 

Fattah argues that the Speech or Debate Clause 

precludes execution of the search warrant. He contends that 

the privilege is one of non-disclosure and that the search 

warrant was served on Google, which “is a disinterested third 

party which is not likely to permit itself to be placed in 

contempt” on his behalf.36 As such, he asserts that his is the 

paradigmatic Perlman case, and that he is entitled to 

immediately appeal the District Court’s order. We disagree. 

 

33 247 U.S. 7, 12-13 (1918).

34 Id. at 13.

35 In re Flat Glass Antitrust Litig., 288 F.3d 83, 90 n.9 (3d 

Cir. 2002) (quoting In re Sealed Case, 141 F.3d 337, 340 

(D.C. Cir. 1998)).

36 Appellant’s Br. at 28-29.
17

Fattah urges that our decision in In re Grand Jury is 

instructive.37 There, the Government moved to compel a law 

firm to provide documentation regarding its representation of 

a corporation that was the subject of a federal criminal 

investigation. The corporation objected to the subpoenas 

served upon the law firm, but the district court granted the 

Government’s motions to enforce. The corporation sought an 

immediate appeal under the Perlman doctrine predicated on 

the attorney-client privilege and work-product doctrine. We 

held that the corporation was entitled to immediately appeal 

the adverse disclosure order to protect those privileges.

38

 

In this case, there is an important distinction to be 

drawn: Fattah fails to cite a legally cognizable privilege. 

Indeed, Fattah relies heavily on our case law discussing the 

Perlman doctrine in the attorney-client privilege context.39 

 

37 705 F.3d at 133.

38 Id. at 149.

39 See, e.g., In re Grand Jury Subpoena, 745 F.3d 681, 686-87 

(3d Cir. 2014) (permitting a client and corporation to 

intervene and quash a subpoena directed to their attorney for 

testimony under the Perlman doctrine on the basis of the 

attorney-client privilege and work-product doctrine); In re 

Grand Jury Proceedings (FMC Corp.), 604 F.2d 798, 800-01 

(3d Cir. 1979) (permitting a corporation to intervene and 

immediately appeal an adverse disclosure order to protect the 

attorney-client privilege and work-product doctrine). The 

only case Fattah cites to applying the Perlman doctrine in the 

context of the Speech or Debate clause is In re Grand Jury 

(Cianfrani), 563 F.2d 577 (3d Cir. 1977). That case, 

however, is distinguishable. First, the case involved a state 

senator who was charged in a federal prosecution. We 
18

He fails to cite any precedent discussing Perlman’s 

applicability to the Speech or Debate Clause.40 The Speech 

or Debate Clause encompasses three main protections, it: (1) 

bars civil and criminal liability for “legislative acts”;

41 (2) 

 

ultimately held that neither the state nor federal Speech or 

Debate Clause privileges extended in such a case. Id. at 580-

82. Second, the case involved a subpoena versus an 

unexecuted search warrant. A subpoena, of course, may be 

challenged prior to compliance. In stark contrast, a search 

warrant is properly challenged after it is executed. 

Accordingly, In re Grand Jury (Cianfrani) is of limited utility 

to Fattah. 

40 For its part, the House of Representatives as amicus insists 

that Gravel v. United States, 408 U.S. 606 (1972), is “on all 

fours.” House Br. 22. We disagree. In Gravel, a Senator 

moved to prevent the questioning of his aide in a grand jury 

proceeding. The Court held that the privilege established by 

the Speech or Debate Clause that prevents the questioning of 

a Member of Congress regarding legislative acts likewise bars 

the questioning of a Member’s aide regarding actions which 

would have been legislative acts, and therefore privileged, if 

performed by the Member personally. The Court, however, 

did not squarely address the Perlman issue. Id. at 608, n.1 

(“The Court of Appeals, United States v. Doe, 455 F.2d 753, 

756-757 (CA1 1972), held that because the subpoena was 

directed to third parties, who could not be counted on to risk 

contempt to protect intervenor's rights, Gravel might be 

‘powerless to avert the mischief of the order’ if not permitted 

to appeal, citing Perlman v. United States, 247 U.S. 7, 13, 38 

S. Ct. 417, 62 L.Ed. 950 (1918). The United States does not 

here challenge the propriety of the appeal.”). 

41 Doe v. McMillan, 412 U.S. 306, 311-12 (1973).
19

guarantees that a Member, or his alter ego, may not be made 

to answer questions about his legislative acts;

42 and (3) bars 

the use of legislative-act evidence against a Member.43 Here, 

we address the evidentiary privilege as applied to records. 

While courts have recognized that the bounds of these 

protections vary, they are all rooted in the notion that, “to the 

extent that the Speech or Debate Clause creates a Testimonial 

privilege as well as a Use immunity, it does so only for the 

purpose of protecting the legislator and those intimately 

associated with him in the legislative process from the 

harassment of hostile questioning.”44 Courts have interpreted 

the term “questioning” broadly to forbid submission of 

legislative act evidence to a jury—whether in the form of 

testimony or records.45 

It cannot be, however, that the privilege prohibits 

disclosure of evidentiary records to the Government during 

the course of an investigation. In re Grand Jury (Eilberg)

provides a good example. There we held that the disclosure 

of telephone records containing Speech or Debate Clause 

 

42 Gravel, 408 U.S. at 616.

43 United States v. Helstoski, 442 U.S. 477, 487 (1979).

44 In re Grand Jury (Eilberg), 587 F.2d at 597.

45 United States v. Renzi, 769 F.3d 731, 746 (9th Cir. 2014), 

petition for cert. filed, No. 14-1082 (Mar. 9, 2015) (“Evident 

from its plain language, the focus is on the improper 

questioning of a Congressman. As such, the Clause is violated 

when the government reveals legislative act information to a 

jury because this would subject a Member to being 

‘questioned’ in a place other than the House or the Senate.” 

(internal quotation marks omitted)).
20

privileged documents was permissible.

46

 Moreover, we 

explained that the evidentiary privilege “[was] not designed 

to encourage confidences by maintaining secrecy, for the 

legislative process in a democracy has only a limited 

toleration for secrecy.”47 

This makes good sense. If it were any other way, 

investigations into corrupt Members could be easily avoided 

by mere assertion of this privilege. Members could, in effect, 

shield themselves fully from criminal investigations by 

simply citing to the Speech or Debate Clause. We do not 

believe the Speech or Debate Clause was meant to effectuate 

such deception. Rather, the “purpose of the Speech or Debate 

Clause is to protect the individual legislator, not simply for 

his own sake, but to preserve the independence and thereby 

the integrity of the legislative process.”

48

 That is, the Clause 

was meant to free “the legislator from the executive and 

judicial oversight that realistically threatens to control his 

conduct as a legislator.”49 The crux of the Clause is to 

“prevent intimidation by the executive and accountability [for 

legislative acts] before a possibly hostile judiciary.”50 It is 

clear that the purpose, however, has never been to shelter a 

Member from potential criminal responsibility.

 

46 In re Grand Jury (Eilberg), 587 F.2d at 597.

47 Id. (citing U.S. Const. art. 1 § 5, cl. 3).

48 United States v. Renzi, 651 F.3d 1012, 1036 (9th Cir. 2011) 

(quoting United States v. Brewster, 408 U.S. 501, 524-25 

(1972)).

49 Helstoski, 442 U.S. at 492 (quoting Gravel, 408 U.S. at 

618).

50 Id. at 491 (quoting United States v. Johnson, 383 U.S. 169, 

181 (1966)).
21

Any other reading of this privilege would eradicate the 

integrity of the legislative process and unduly amplify the 

protections to the individual Member. Indeed, “financial 

abuses by way of bribes, perhaps even more than Executive 

power, would gravely undermine legislative integrity and 

defeat the right of the public to honest representation. 

Depriving the Executive of the power to investigate and 

prosecute and the Judiciary of the power to punish bribery of 

Members of Congress is unlikely to enhance legislative 

independence.”

51

 We decline to strip the legislative process, 

and the public, of this protection.

Accordingly, while the Speech or Debate Clause 

prohibits hostile questioning regarding legislative acts in the 

form of testimony to a jury, it does not prohibit disclosure of 

Speech or Debate Clause privileged documents to the 

Government. Instead, as we have held before, it merely 

prohibits the evidentiary submission and use of those

documents. 

 

Thus, based on these distinctions, we hold that the 

Perlman doctrine does not apply to the Speech or Debate 

Clause with respect to records disclosed to the Government in 

the course of an investigation. The Speech or Debate Clause 

does not prohibit the disclosure of privileged documents. 

Rather, it forbids the evidentiary use of such documents. As 

such, there is no “mischief” for Fattah to stymy as there is no 

privilege in danger of destruction. Fattah is unable to 

challenge the disclosure regardless of to whom the request is 

 

51 Renzi, 651 F.3d at 1036 (emphasis in the original) (quoting 

Brewster, 408 U.S. at 524–25).
22

made. This differs from a challenge to a subpoena requesting 

attorney-client privileged documents, where, as the saying 

goes, you cannot “unring the bell.” In that scenario, no 

remedy assuages disclosure and the privilege may very well

be destroyed. Fattah’s challenge is far less serious and 

therefore should not receive such protections. There is no 

bell to unring here—the privileged documents may be 

disclosed without violating the privilege, and Fattah may 

avail himself of several remedies to any alleged illegal search 

or seizure. 

 

The impetus of the Perlman doctrine is to protect 

privilege holders from the disclosure of privileged materials 

by a disinterested third-party. Here, Fattah fails to cite a 

legally cognizable privilege to support his claim. 

Accordingly, Perlman is inapplicable, and we hold that we 

lack jurisdiction to entertain this appeal under this ground as 

well. 

2. The Perlman Doctrine Provides Jurisdiction to 

Review Fattah’s Claims Under the Attorney-Client 

Privilege and Work-Product Doctrine. 

Fattah contends that the Perlman doctrine provides 

appellate jurisdiction for this Court to review the merits of his 

attorney-client privilege and work-product doctrine claims 

regarding inadequate filtering procedures. We agree. Unlike 

Fattah’s Speech or Debate Clause claim, this claim succeeds 

because it is predicated on legally cognizable privileges 

continuously recognized under the Perlman Doctrine.

52

 

Because the attorney-client privilege and work-product 

 

52 See, e.g., In re Grand Jury Subpoena, 745 F.3d at 686.
23

doctrine are non-disclosure privileges that may in fact be 

destroyed by a disinterested third-party, Perlman applies. 

On the merits of this issue, Fattah argues that the 

District Court erred in approving the Government’s proposed 

filtering procedures regarding documents protected by the 

attorney-client privilege and work-product doctrine. These 

procedures involved the use of a “taint team” to review for 

privileged documents, a common tool employed by the 

Government.53 The team, however, is structured to include a 

non-attorney federal agent at the first level of review, 

followed by review by independent attorney federal agents. 

Moreover, Fattah contends that he does not have the 

opportunity to assert his privilege with respect to certain 

documents deemed to be “clearly not privileged” until after 

they are turned over to those prosecuting his case.

 

53 Certain courts have limited the circumstances in which 

prosecutors may employ taint teams during criminal 

investigations. See, e.g., In re Grand Jury Subpoenas, 454 

F.3d 511, 522 (6th Cir. 2006). But because Fattah does not 

argue that the use of a taint team is inappropriate in his case, 

we have no occasion to consider the appropriate limits, if any,

on their use. Of course, a court always retains the prerogative 

to require a different method of review in any particular case, 

such as requiring the use of a special master or reviewing the 

seized documents in camera itself. See, e.g., Klitzman, 

Klitzman & Gallagher v. Krut, 744 F.2d 955, 962 (3d Cir. 

1984); Black v. United States, 172 F.R.D. 511, 516 (S.D. Fla. 

1997); United States v. Abbell, 914 F. Supp. 519, 520–21 

(S.D. Fla. 1995); In re Search Warrant for Law Offices 

Executed on Mar. 19, 1992, 153 F.R.D. 55, 59 (S.D.N.Y. 

1994).
24

Fattah maintains that only attorneys should be 

involved in this type of privilege review and that the District 

Court did not realize a non-attorney agent would be the first 

line review.54 Thus, Fattah argues that “eliminated from the 

initial determination of what may be privileged is the only 

professional qualified to make that determination.”55 Fattah 

also argues that he should have an opportunity to work with 

prosecutors to identify privileged documents and that he 

should be entitled to a court ruling on any documents he 

claims are privileged before the filter agents turn these 

documents over to the prosecutorial arm of the Department of 

Justice (DOJ). Because of the legal nature of the privilege 

issues involved, we agree that the first level of privilege 

review should be conducted by an independent DOJ attorney 

acceptable to the District Court. Fattah's remaining 

arguments regarding the structure of the review process, we 

believe, are more appropriately addressed by a district court 

in the first instance on a case-by-case basis. On remand, the 

District Court may thus, in its discretion, implement those 

procedures it deems necessary to protect Fattah’s privileges.

 

54 Indeed, the District Court held that the use of “taint teams” 

had been cited with approval in this Circuit. The cases the 

District Court cited to, however, all involved an attorney at 

the first level of review. See, e.g., Manno v. Christie, No. 08-

cv-3254, 2009 U.S. Dist. LEXIS 31470 (D.N.J., Apr. 13, 

2009). Likewise, the District Court never explicitly 

acknowledged that review would be conducted by a nonlawyer. Rather, the court stated review would be conducted 

by “FBI Special Agents not involved in the investigation.” 

App. 10. 

55 Fattah Br. 61.
25

C. Fattah’s Federal Rule of Criminal Procedure 41(g) 

Motion

Fattah also styled his pre-indictment motion as a 

request for relief under Federal Rule of Criminal Procedure 

41(g) and contends that under this rule we have appellate 

jurisdiction. The Rule sets out the procedures criminal 

defendants should employ for the return of property, 

providing:

(g) Motion to Return Property. A 

person aggrieved by an unlawful 

search and seizure of property or 

by the deprivation of property 

may move for the property's 

return. The motion must be filed 

in the district where the property 

was seized. The court must 

receive evidence on any factual 

issue necessary to decide the 

motion. If it grants the motion, the 

court must return the property to 

the movant, but may impose 

reasonable conditions to protect 

access to the property and its use 

in later proceedings.

Denial of a pre-indictment Rule 41(g) motion is 

immediately appealable, only if the motion is: (1) solely for 

the return of property and (2) is in no way tied to an existing

criminal prosecution against the movant.56 In this case, the 

 

56 Di Bella, 369 U.S. at 131-32; see also In re Grand Jury, 

635 F.3d 101, 103-05 (3d Cir. 2011).
26

warrant has yet to be executed, and the Government has yet to 

seize the evidence Fattah seeks returned. Therefore, there is 

no property to return. As such, we lack appellate jurisdiction 

under this ground as well. 

III. Conclusion

We take seriously the sentiments and concerns of the 

Supreme Court that Members are not to be “super-citizens” 

immune from criminal liability or process.

57

 Permitting an 

interlocutory appeal of an order denying a motion to quash an 

unexecuted search warrant based on the Speech or Debate 

Clause would set bad precedent and insulate Members from 

criminal investigations and criminal process. This, of course, 

cannot and should not be the purpose of the Clause. Thus, for 

all of the reasons above, we dismiss Fattah’s appeal regarding 

his Speech or Debate Clause claims for lack of jurisdiction

and we remand to the District Court his claim with respect to 

inadequate filtering procedures.

 

57 Brewster, 408 U.S. at 516.
In the Matter of the Search of Electronic Communications

No. 14-3752

_________________________________________________

AMBRO, Circuit Judge, dissenting in part:

I agree with my colleagues that the Speech or Debate 

Clause does not confer a privilege of confidentiality. Thus, 

the motion to quash the search warrant on that basis must be 

denied. Any other conclusion is foreclosed by a long line of 

precedent.1 However, that Fattah’s argument lacks merit does 

not, in my view, deprive us of jurisdiction to review his claim 

under the Perlman doctrine. “Rather, the lack of merit means 

that the claim of [privilege] should be denied for just that 

reason—it lacks merit.” Powell v. Ridge, 247 F.3d 520, 527 

(3d Cir. 2001) (Roth, J., dissenting). I thus respectfully 

dissent in part. 

“When a district court orders a witness—whether a 

party to an underlying litigation, a subject or target of a grand 

jury investigation, or a complete stranger to the 

proceedings—to testify or produce documents, its order 

generally is not considered an immediately appealable ‘final 

decision[ ]’ under § 1291.” In re Grand Jury, 705 F.3d 133, 

 

1 Of course, our binding precedent also provides that, while 

the Government has a right to review the documents and 

argue privilege, Fattah has an equal right to participate in that 

process, particularly given “the information as to [what] were 

legislative acts is in his possession alone.” In re Grand Jury 

Investigation (Eilberg), 587 F.2d 589, 597 (3d Cir. 1978); see 

also id. (holding that a congressman asserting the Speech or 

Debate Clause privilege in a grand-jury proceeding “should 

be permitted to indicate by affidavit or testimony those calls 

which he contends are privileged”). 
2

142 (3d Cir. 2012) (alteration in original). The appellant 

instead only secures the right to an immediate appeal when he 

defies the order, is held in contempt, and appeals the 

contempt order. This rule, “‘though at times a harsh one,’” 

discourages “‘all but the most serious’” appeals because “[i]t 

forces the objector to weigh carefully the likelihood of 

success of its challenge” along with “the importance it 

attaches to avoiding the ordered disclosure and protecting any 

associated privileges.” Id. at 143 (quoting In re Grand Jury 

Proceedings, 604 F.2d 798, 800 (3d Cir. 1979)). In effect, 

review remains available through this route even where the 

likelihood of success is low so long as the importance 

attached is high. 

Where a disclosure order is addressed to a 

disinterested third party, however, the incentive structure 

shifts. Unlike the holder of a privilege, a mere custodian of 

records cannot be “expected to risk a citation for contempt in 

order to secure [the privilege holder] an opportunity for 

judicial review.” United States v. Ryan, 402 U.S. 530, 533 

(1971). Moreover, without a means to force the third party to 

protect the privilege holder’s rights, it is “left . . . ‘powerless 

to avert the mischief of [a disclosure] order.’” Id. (quoting 

Perlman v. United States, 247 U.S. 7, 13 (1918)). Under the 

Perlman doctrine, we allow a party opposing a discovery 

order on grounds of privilege to appeal immediately where 

the order is directed at a third party who lacks a sufficient 

stake in the proceeding to risk contempt by refusing 

compliance. See id.

The same principle applies here: As the party on which 

the warrant was served, Google could refuse to comply and 

seek appellate review through a separate proceeding for 
3

contempt.2 However, it presumably has little incentive to do 

so because the asserted privilege belongs not to Google but to 

Fattah. Moreover, without custody of the allegedly privileged 

documents, Fattah cannot himself defy the order to force an 

interlocutory appeal. Accordingly, Fattah’s case falls 

squarely within Perlman’s rationale. 

My colleagues of course suggest otherwise. They 

conclude that we are without jurisdiction because there is no 

confidentiality privilege under the Speech or Debate Clause. 

But “[t]he question of the existence of a privilege . . . 

pertain[s] to the merits,” Slark v. Broom, 7 La. Ann. 337, 342 

(1852), and it is well established that “jurisdiction under the 

Perlman doctrine does not rise or fall with the merits of the 

appellant’s underlying claim for relief,” Doe No. 1 v. United 

States, 749 F.3d 999, 1006 (11th Cir. 2014). See also Ross v. 

City of Memphis, 423 F.3d 596, 599 (6th Cir. 2005)

 

2 To the extent the Government argues that even contempt 

proceedings are unavailable for review of an unexecuted 

search warrant issued under 28 U.S.C. § 2703(b)(1), this 

position is directly inconsistent with its position in a pending 

Second Circuit case. See Brief of the United States of 

America at 8 n.5, In re Warrant To Search Certain E-Mail 

Account Controlled & Maintained by Microsoft Corp., No. 

14-2985 (2d Cir. Mar. 9, 2005) (noting that the District 

Court’s “entry of a contempt order” gave the Second Circuit 

jurisdiction to review an unexecuted search warrant issued 

under § 2703); see also In re Warrant To Search a Certain EMail Account Controlled & Maintained by Microsoft Corp., 

No. 13-mj-2814, 2014 WL 4629624 (S.D.N.Y. Aug. 29, 

2014) (Preska, C.J.). (Interestingly, in that case the 

Government also has taken the contrary position that this type 

of search warrant isn’t really a search warrant at all.) 
4

(“[Perlman] jurisdiction does not depend on the validity of 

the appellant’s underlying claims for relief.”). Rather, “[i]t is 

the possibility of disclosure of information which is thought 

to be confidential that is central to the Perlman exception.” 

United States v. Calandra, 706 F.2d 225, 228 (7th Cir. 1983)

(emphasis added). 

Not only do my colleagues fail to cite any case law for 

their novel proposition that the Perlman doctrine depends on 

the cognizability of the privilege asserted, they also overlook 

numerous cases to the contrary. This includes Perlman itself, 

where the Supreme Court reviewed the petitioner’s claims on 

interlocutory appeal despite concluding his arguments lacked 

merit. See Perlman, 247 U.S. at 13–15. Indeed, we have 

routinely invoked the Perlman doctrine as the basis for our 

jurisdiction, only to decide ultimately that the appellant lacks 

the privilege asserted. See, e.g., In re Grand Jury Impaneled 

Jan. 21, 1975, 541 F.2d 373, 381, 383 (3d Cir. 1976) 

(rejecting “the application of a state required reports privilege 

as a matter of federal common law” though concluding the 

appellant “had standing to intervene below and challenge the 

subpoena on the basis of his claim of privilege”); In re Grand 

Jury, 103 F.3d 1140, 1144 (3d Cir. 1997) (refusing to 

recognize a cognizable “parent-child privilege” but citing 

Perlman as the basis for its jurisdiction). 

We are not without company; other appellate courts 

have done the same. See, e.g., In re Grand Jury Proceedings, 

832 F.2d 554, 560 (11th Cir. 1987) (permitting an 

interlocutory appeal, but holding “that the privilege asserted 

by [the] appellants [was] without a basis in Florida law” and 

that they “ha[d] no privilege of nondisclosure under state 

law”); In re: a Witness Before the Special Grand Jury 2000-2, 

288 F.3d 289, 291, 295 (7th Cir. 2002) (invoking Perlman for 

the court’s jurisdiction though refusing to extend the attorney-
5

client privilege to communications between government 

attorneys and their state clients). 

The failure to recognize our jurisdiction under 

Perlman is particularly puzzling given that we have 

previously relied on that doctrine to review—and reject—

indistinguishable attempts to bar disclosure under the Speech 

or Debate Clause. While my colleagues distinguish one such 

case, In re Grand Jury Proceedings (Cianfrani), 563 F.2d 577 

(3d Cir. 1977), as having involved a state, rather than federal, 

congressperson, I fail to see the relevance of that distinction. 

Neither did a panel of our Court the following year when U.S. 

Congressman Eilberg intervened in grand-jury proceedings 

and appealed. See Eilberg, 587 F.2d at 597 (concluding we 

had jurisdiction to review the interlocutory appeal, but 

holding, that, “as we ha[d] said on two other occasions, the 

[Speech or Debate] privilege when applied to records or thirdparty testimony is . . . not [one] of non-disclosure” (citing 

United States v. Helstoski, 576 F.2d 511 (3d Cir. 1978), aff’d, 

442 U.S. 477 (1979), aff’d sub nom. Helstoski v. Meanor, 442 

U.S. 500 (1979); Cianfrani, 563 F.3d 577)). 

Finally, that these prior Speech or Debate Clause cases 

arose in the context of a subpoena duces tecum (rather than 

search warrant) is also an irrelevant distinction. If the 

Perlman doctrine did not apply to search warrants, Fattah 

would similarly be unable to rely on that doctrine to appeal 

his attorney-client privilege and work-product claims. Yet 

here my colleagues correctly rely on the Perlman doctrine to 

conclude that “this claim succeeds.” Majority Op. 22. 

Similarly, other courts have applied Perlman even though a 

search warrant has been used. See, e.g., In re Berkley & Co., 

629 F.2d 548, 551–52 (8th Cir. 1980) (applying Perlman to 

consider the denial of a motion to prevent the Government 

from disclosing to the grand jury certain privileged 

documents it had previously seized); United States v. Griffin, 
6

440 F.3d 1138, 1143 (9th Cir. 2006) (applying the Perlman 

doctrine where seized documents were in the temporary 

possession of a special master); In re Sealed Case, 716 F.3d 

603, 612 (D.C. Cir. 2013) (Kavanaugh, J., concurring) 

(suggesting that if a search warrant is used to seize allegedly 

privileged documents, the order would be appealable under 

Perlman (citing Berkley, 629 F.2d 548)).

The Supreme Court has repeatedly admonished 

appellate courts not to “conflate[e] the jurisdictional question 

with the merits of the appeal.” Arthur Andersen LLP v. 

Carlisle, 556 U.S. 624, 627 (2009). I believe that, by 

intertwining the cognizability of the privilege with that of an 

appellate court’s jurisdiction, the majority contravenes this 

mandate. I therefore respectfully dissent in part.