Wednesday, August 17, 2016

The Subpoena, the Former Governor and the Emails

This post examines an opinion from the U.S. Court of Appeals for the 9th Circuit:  In re Grand Jury Subpoena, JK-15-029, 2016 WL 3745541 (9th Circuit 2016). The opinion begins by explaining that this
case arises in the midst of an investigation by the federal government into activities of the former Governor of Oregon, John Kitzhaber. A grand jury's subpoena seeks a broad range of information from the State of Oregon, much of which would be available to the general public under Oregon's public records laws. But a wide net is susceptible to snags.

For several years before Kitzhaber left office, copies of his personal emails were archived on Oregon's computer servers. According to Kitzhaber, he was unaware of the archiving of these emails, which include many private details unrelated to his official duties regarding him and his family, as well as private communications with his personal attorneys and with attorneys for the State of Oregon. Because this cache would be turned over to the government under the subpoena, Kitzhaber argues the subpoena is unreasonably broad, as it violates his Fourth Amendment privacy rights and invades his attorney-client privilege. Kitzhaber asserts in particular that the attorney-client privilege protects his communication with attorneys for the State of Oregon regarding issues concerning possible conflicts of interest and ethics violations. The government disclaims any interest in Kitzhaber's communications with his personal attorneys but argues it is otherwise entitled to everything it has requested.
In re Grand Jury Subpoena, supra.
The Court of Appeals went on to explain that John Kitzhaber
served as Governor of Oregon from 1995 until 2003, and again from 2011 until 2015. During this second period in office, Kitzhaber declined to use an official email address provided by the State of Oregon. Instead, he established an account with the commercial email service Gmail, which he used for official business. He requested that the Oregon Department of Administrative Services (DAS) archive on the state's servers emails sent to or from this `official’ Gmail address, and DAS complied.

In addition to his official Gmail account, Kitzhaber had a personal Gmail account and another personal account hosted at He checked all of these accounts from the same computer. According to a member of the Governor's senior staff, Kitzhaber commonly used his personal addresses `to communicate with senior staff for both personal and state business.’

In February of 2015, Kitzhaber resigned from office, surrounded by controversy over whether he had used his position to benefit his fiancée, Cylvia Hayes. See Lee van der Voo and Kirk Johnson, Governor Leaves Office in Oregon, Besieged in Crisis, N.Y. Times, Feb. 14, 2015, at A1, Shortly before Kitzhaber's resignation, a federal grand jury issued a subpoena to DAS as part of an investigation into the Governor's actions. The subpoena asked DAS to provide `all information, records, and documents’ going back to January 1, 2009, `relating to Kitzhaber, Hayes, and several businesses and other entities. The subpoena also sought `any and all email communications from or to, or regarding’ seventeen individuals, including Kitzhaber and Hayes.
In re Grand Jury Subpoena, supra.
The court went on to explain that,
[a]fter he left office, Kitzhaber intervened in the grand jury proceedings, filing a motion to quash the subpoena in the United States District Court for the District of Oregon. According to Kitzhaber, shortly before resigning he discovered that DAS had been archiving emails to and from his personal email accounts on state servers. Kitzhaber asserted that DAS was not authorized to archive his emails from his personal addresses, which he says contain a great deal of private communication, including privileged communication with his personal attorneys. He challenged the subpoena on the grounds that it was unreasonably broad; a violation of his Fourth Amendment rights; and a violation of attorney-client privilege.

The district court ruled that Kitzhaber's communication with his private attorneys over his personal email addresses was protected by the attorney-client privilege and should not be disclosed to the grand jury. The court directed the government to create a “taint/filter team” to segregate the protected emails from the remaining content generated in response to the subpoena and prevent the protected content from reaching the jury. It ruled against Kitzhaber on every other issue. The court held that third parties to a subpoena, like Kitzhaber here, may not challenge the burden of production required to comply with the subpoena. It also held that any potential Fourth Amendment violation could be raised only in a suppression motion filed if Kitzhaber ends up being indicted and brought to trial. And it held that the attorney-client privilege did not apply to Kitzhaber's communication with government attorneys. The court therefore declined to quash the subpoena. Kitzhaber timely appealed.

In re Grand Jury Subpoena, supra. A Wikipedia entry explains what a motion to quash is designed to accomplish. And Rule 17(c)(2) of the Federal Rules of Criminal Procedure states that “[o]n motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.”
The Court of Appeals began its analysis of the arguments Kitzhaber made on appeal by explaining that Kitzhaber
argues that the district court should have quashed the subpoena in its entirety. We agree.

The subpoena includes emails on his personal accounts that Kitzhaber reasonably expects to remain private, as they do not concern public business. (Like the district court, we proceed on the assumption that Kitzhaber did not authorize DAS to archive the emails from his personal accounts). The subpoena does not exclude these communications or otherwise limit the documents demanded to those within the scope of the government's legitimate concern in conducting a thorough investigation of Kitzhaber's conduct of official business. As a result, the subpoena is unreasonably overbroad—analogous, that is, to a general warrant, which constitutes an unreasonable search under the Fourth Amendment. See U.S. v. Bridges, 344 F.3d 1010, 1916 (U.S. Court of Appeals for the 9th Circuit 2003).  As such, the subpoena, as drafted, may not be enforced.
In re Grand Jury Subpoena, supra.
The Court of Appeals went on to explain that the
`grand jury is, to a degree, an entity independent of the courts, and both the authority and the obligation of the courts to control its processes are limited.’ In re Grand Jury Investigation of Hugle, 754 F.2d 863, 864 (U.S. Court of Appeals for the 9th Circuit). But the normal rule of noninterference is `not absolute.’ In re Grand Jury Investigation of Hugle, supra.  A subpoena is not automatically valid `merely because the Constitution does not prohibit it and the material [it seeks] is not privileged.’ U.S. v. Bergeson, 425 F.3d 1221, 1226 (U.S. Court of Appeals for the 9th Circuit 2005). Rather, courts may `exercise supervisory power over the grand jury where there is a clear potential for a violation of the rights either of a witness or of a nonwitness, if the violation cannot be corrected at a later stage.’ In re Grand Jury Investigation of Hugle, supra.

Here, there is a clear potential for the violation of Kitzhaber's rights. `[A]n order for the production of books and papers may constitute an unreasonable search and seizure within the 4th Amendment.’ Hale v. Hennkel, 201 U.S.43, 76 (1906), abrogated in part on other grounds by Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52, 68 (1964). This can be true `whether under a search warrant or a subpoena duces tecum.’ Hale v. Henkel, supra. When the government crafts subpoenas, it must `make a reasonable effort to request only those documents that are relevant and non-privileged, consistent with the extent of its knowledge about the matter under investigation.’ In re Horn, 976 F.2d 1314, 1318 (U.S. Court of Appeals for the 9th Circuit 1992).   A subpoena without such tailoring is `equally indefensible as a search warrant would be if couched in similar terms.’ Hale v. Henk, supra. Thus, where a grand jury's subpoena, given its overbreadth, would itself violate the privacy interests protected by the Fourth Amendment, `[j]udicial supervision is properly exercised in such cases to prevent the wrong before it occurs.’ U.S. v. Calandra, 414 U.S. 338, 346 (1974).  

The district court concluded otherwise. It was of the view that it was obliged to enforce the subpoena as long as there was a `reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation,’ citing U.S. v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991).
In re Grand Jury Subpoena, supra.
The opinion then goes on to explain that
R. Enterprises held that where `a subpoena is challenged on relevancy grounds, the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation. U.S. v. R. Enterprises, Inc., supra.  But R. Enterprises does not suggest that by self-defining the `category of materials’ sought as broadly as possible, the government insulates its subpoenas from review. Otherwise, when the government seeks all material of a broad generic type that a party possesses—every piece of paper in a corporation's files, for example, or, as in this case, all of an individual's emails over a several year period—a reasonable possibility that some of that material would be relevant would suffice to validate the subpoena, no matter how vast its sweep, and no matter the degree to which the subpoena would reach private material of no pertinence to the grand jury's inquiry.

The reference to `category of materials’ in U.S. v. R. Enterprises, Inc., supra, confirms that subpoenas typically designate for production a discrete `category’ of materials. Where one does not, and there is a broad, identifiable `category of materials the Government seeks [that] will [not] produce information relevant to the general subject of the grand jury's investigation,’ U.S. v. R. Enterprises, Inc., supra,—here, for example, material about Governor Kitzhaber's children or medical care—the subpoena is unreasonably broad.

Our decisions in In re Horn, supra  and United States v. Bergeson, supra, confirm this understanding of R. Enterprises. They make clear that a subpoena may be quashed when no effort is made to tailor the request to the investigation, even if some fraction of the material the subpoena seeks is relevant. See United States v. Bergeson, supra; In re Horn, supra.  
In re Grand Jury Subpoena, supra.
The Court of Appeals went on to explain that the
government's subpoena in this case is much broader than the subpoena we rejected in In re Horn, supra.  In Horn, the subpoena at issue sought all information regarding the financial transactions of a lawyer's clients. In re Horn, supra.  Here, there is no subject matter limitation whatsoever on the documents sought. The subpoena seeks, among other things, all of Kitzhaber's e-mail communication over several years, with no limitation on the content, senders, or recipients of the e-mails. As Kitzhaber points out, the subpoena would net, for instance, `emails between [himself] and his son's physicians or teachers.’

Notably, the government attached to the subpoena a non-exhaustive list of the kinds of documents that might be included in the data it sought. But the subpoena explicitly did not limit itself to that material, so that list did not narrow the scope of the subpoena itself. At the same time, by indicating the government's particular investigatory goals, the list confirms that a narrowing of the subpoena in accord with that list would not compromise the investigation.

Because the government did not in any manner tailor its request to relevant material, the subpoena was unreasonably broad and within the district court's supervisory power, and responsibility, to quash.
In re Grand Jury Subpoena, supra.
The Court of Appeals went on to explain that
[w]e have previously held that email should be treated like physical mail for purposes of determining whether an individual has a reasonable expectation of privacy in its content. U.S. v. Forrester, 512 F.3e 500, 511 (U.S. Court of Appeals for the 9th Circuit 2008). While an email's addressing information is visible to third parties and therefore not protected, emails also contain `content that the sender presumes will be read only by the intended recipient.’ U.S. v. Forrester, supra.

We have also noted that electronic storage devices such as laptops `contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails,’ and held that `[t]hese records are expected to be kept private and this expectation is one that society is prepared to recognize as reasonable.’ U.S. v. Cotterman, 709 F.3d 952, 964 (U.S. Court of Appeals for the 9th Circuit). The Supreme Court, too, has emphasized recently the ability of digital troves to contain `[t]he sum of an individual's private life,’ and the corresponding need for our jurisprudence to reflect the changing technological landscape. Riley v. California, 134 S.Ct. 2473 (2014). Personal email can, and often does, contain all the information once found in the `papers and effects”’ mentioned explicitly in the Fourth Amendment. Kitzhaber thus has a strong claim to a legitimate expectation of privacy in his personal email, given the private information it likely contains.
In re Grand Jury Subpoena, supra.
The Court of Appeals went on to explain that the Oregon Department of Administrative Services' (DAS)
current possession of the emails does not vitiate that claim. `[T]he Fourth Amendment protects people, not places.’ U.S. v. Davis, 332 F.3d 1163, 1167 (U.S. Court of Appeals for the 9th Circuit 2003) (citation omitted).  Kitzhaber's interests therefore attach to “the thing[s] seized,” not merely to the place where they are located. U.S. v. Davis, supra. As we held in Forrester, emails are to be treated as closed, addressed packages for expectation-of-privacy purposes. U.S. v. Forrester, supra. And a person `does not forfeit [his] expectation of privacy merely because [a private] container is located in a place that is not controlled exclusively by the container's owner.’ U.S. v. Monghur, 588 F.3d 975, 978 (U.S. Court of Appeals for the 9th Circuit 2009).  

The Fourth Amendment bars searches of closed containers even if they are not in their owners' possession. U.S. v. Davis, supra; U.S. v. Fultz, 146 F.3d 1102, 1105 (U.S. Court of Appeals for the 9th Circuit 1998). Where a third party comes into possession of a closed container accidentally, the Fourth Amendment bars the government from examining the contents of the container beyond `the extent that [it] had already been examined by third parties.’ Walter v. U.S. 447 U.S.649, 656 (1980) (plurality opinion). Kitzhaber asserts, and the government does not dispute, that he and DAS came to an agreement that his personal email accounts would be segregated on Oregon's servers and not distributed `without a court order or other legal process.’ There is no evidence in the record, and no assertion made by the government, that DAS or anyone else has opened or examined the contents of the email on Kitzhaber's personal accounts. Kitzhaber's claim to a reasonable expectation of privacy in the contents of the emails is therefore not undermined by Oregon's possession of the emails.
In re Grand Jury Subpoena, supra.
The Court of Appeals, though, also found that
Kitzhaber's privacy claim lacks force, however, with respect to any emails transmitted through his personal email accounts but concerning official business. Oregon's public records law, OregonRevised Statutes § 192.410 et seq., which applies to `every state officer,” grants a general right to the public to inspect “any writing that contains information relating to the conduct of the public's business.’ §§ 192.410, 192.420. Kitzhaber has acknowledged that he instructed DAS to archive emails in his `official’ Gmail account to comply with public records laws. The government has also offered evidence that the State of Oregon's training for employees informs them that emails on personal accounts regarding state business are not exempt from public records laws.
In re Grand Jury Subpoena, supra.
The opinion went on to explain that
[c]onsequently, whether or not Kitzhaber had a subjective expectation of privacy as to emails on his private accounts relating to official business, any such expectation is not a reasonable one. `[C]ompliance with state open records laws . . . bear[s] on the legitimacy of a[ ] [public] employee's privacy expectation.’ City of Ontario, Cal. v. Quon, 560 U.S.746 (2010).  While the existence of an open records law may not be conclusive in all cases, it is conclusive here. The public interest in open and transparent governance is at its zenith when it comes to the state's top elected official and his communication with senior advisers regarding official business. Even if state officials expect to evade those laws through the use of personal email addresses, that expectation is not a protected privacy interest.

Kitzhaber therefore had a reasonable expectation of privacy regarding emails on his personal accounts unrelated to official business. Because the subpoena was in no way tailored to the investigations being conducted, it included those purely private emails. Again, the district court had the supervisory power, and responsibility, to quash the vastly overbroad subpoena, and thereby prevent the trampling of Kitzhaber's reasonable expectation of privacy.
In re Grand Jury Subpoena, supra.
For these and other reasons, the Court of Appeals reversed the lower court’s ruling and remanded the case “for further proceedings consistent with this opinion.” In re Grand Jury Subpoena, supra.
You can, if you are interested, read more about the case in the news stories you can find here, here, and here.

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