In re Search Warrant Issued June 13, 2019

A law firm (the firm) (plaintiff) represented a client in a federal investigation. A partner of the firm was suspected of assisting the client in engaging in money laundering and obstructing the federal government’s (defendant) investigation. The government accordingly applied for a search warrant for the firm’s offices and made an ex parte request to use a filter team—which was independent from the investigation team—composed of federal prosecutors and nonlawyer federal employees to review the documents to be seized from the firm. The magistrate judge issued the warrant and authorized the filter team ex parte. Federal agents executed the warrant and seized a large number of documents related to several of the firm’s clients, including documents subject to the attorney-client privilege and the work-product doctrine. The firm—claiming that the seizure and use of the filter team violated the Sixth Amendment and federal rules of procedure—demanded that the seized documents either be returned to the firm so the firm could conduct its own privilege review or be submitted to the magistrate judge or the district court for an in-camera review. The firm also requested a preliminary injunction from the district court to prevent the filter team from reviewing the documents before the firm or the judiciary could review, but the district court denied the firm’s requests, holding that the firm had failed to show that it would suffer irreparable harm without an injunction. The firm appealed to the United States Court of Appeals for the Fourth Circuit, arguing, in part, that determinations of privilege and work-product issues involve judicial functions and therefore that such determinations must be made by the magistrate judge or a special master rather than a government filter team. Otherwise, the firm argued, the nondelegation principle—which prevents the judiciary from delegating its judicial functions to executive agencies—would be violated.