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Media Alerts - In the matter of the search of electronic communications in the account of - Third Circuit
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September 9, 2015
  In the matter of the search of electronic communications in the account of - Third Circuit
Headline: Fattah Cannot Use Speech or Debate Clause Protections to Stop Search Warrant for His Emails, Third Circuit Holds

Area of Law: Constitutional Law

Issues Presented:

Whether the Speech or Debate Clause of the U.S. Constitution issues raised on appeal can provide the basis for appellate jurisdiction under either the collateral order or the Perlman doctrine.

What does attorney-client privilege or attorney-work product privilege, under Perlman jurisdiction, require as to review to ensure the privilege is maintained.

Whether the Federal Rule of Criminal Procedure 41(g) provides appellate jurisdiction as to unexecuted search warrants for searches of email accounts.

Brief Summary:

U.S. Rep. Chaka Fattah sued to prevent the FBI from using a search warrant to investigate the contents of his private email account in connection with a grand jury probe into alleged fraud, extortion and bribery by the congressman. The Third Circuit held that Fattah could not prevent the search from taking place because any privilege that might result from the Speech and Debate Clause was one of non-use and not one of non-disclosure. Fattah would have ample opportunity to challenge under the Speech and Debate Clause the use of any materials discovered during the search during a subsequent trial. The Court emphasized that the Speech and Debate Clause was not intended to as an absolute shield for members of Congress from investigation for criminal wrongdoing. The Court did conclude, however, that Fattah was entitled to have any documents retrieved by the search warrant reviewed by an independent Justice Department to remove any documents protected by attorney-client privilege before turning them over to prosecuting attorneys.

Extended Summary:

The Government obtained a search warrant to search U.S. Rep. Chaka Fattah's gmail account as part of a federal grand jury investigation into alleged fraud, extortion, and bribery. Fattah filed a motion in the Federal District Court of Eastern Pennsylvania to stop of the warrant from being executed. When his motion was denied, he appealed to the Third Circuit. The main issue on appeal was whether the trial judge's order could be appealed prior to the conclusion of the case as a whole. Under what is known as the collateral order doctrine, judicial review is only available for a very small subset of prejudgment orders - those that (1) conclusively determine the disputed question, (2) resolve and important issue completely separate from the merits of the case, and (3) are effectively unreviewable on appeal from a final judgment.

The Third Circuit held that Fattah's Speech or Debate Clause claim failed to meet the second and third prongs of the collateral order doctrine. The Speech or Debate Clause provides that members of Congress "shall not be questioned in any other Place" "for any Speech or Debate in either House." The Court found that the prejudgment decision on the unexecuted search warrant was not separate from, and could substantially impact, the merits of the case. The Third Circuit further held, because Fattah could later move to suppress the evidence obtained through the search warrant, as well as appeal denial of such a motion, that the decision was effectively reviewable on appeal.

The Third Circuit also found against Fattah on his Perlman doctrine claim. The Perlman doctrine is designed to protect parties from the disclosure of privileged documents held by third parties - in this case Fattah's gmail account being held by Google. The Third Circuit held that, as such, the Speech or Debate Clause is not a privilege protected under the Perlman doctrine. The Third Circuit elaborated that the Speech or Debate Clause protections, forbidding the submission of "legislative act" evidence to a jury, could not extend so far as to shield Congresspersons from criminal investigations. In the course of its discussion, the Court once again noted the difference between disclosure of Speech or Debate Clause documents, which is permitted, and evidentiary use of, Speech or Debate Clause documents, which is prohibited.

The Third Circuit, however, held that the Perlman doctrine did apply to Fattah's claims of attorney-client and work-product privileges. On the merits, the Third Circuit held that the first-level privilege review of documents should be conducted by an independent DOJ attorney and left it to the District Court to further specify requirements for the review process.

Find the full opinion at:

Panel: Ambro, Fuentes, Roth - Circuit Judges

Argument Date: January 12, 2015

Date of Issued Opinion: September 2, 2015

Docket Number: 14-3752

Decided: No appellate jurisdiction except as to attorney-client privilege and work-product privilege. Documents falling under those must be reviewed by independent DOJ attorney.

Case Alert Author: Philip Jones


Luther E. Weaver III, Esq. (argued) for Appellant

Kerry W. Kircher, Esq. (argued) (Amicus Attorney Appellant, House of Representatives Bipartisan Legal Advisory Group)

Donald E. Wieand, Jr., Esq. (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. for Appellees

Author of Opinion: Fuentes, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 09/09/2015 01:06 PM     3rd Circuit  

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