United States v. Fluitt
In United States v. Fluitt, —- F.4th —-, No. 22-30316 (5th Cir. Apr. 24, 2024), the Fifth Circuit heard an interlocutory discovery appeal brought by a third party whose documents were disclosed despite its claim of privilege. The lower court had ordered the Government to produce those disputed materials to the defendant in his criminal case, and the Fifth Circuit affirmed that order.
Factual Background: Before the Government charged Fluitt, it executed search warrants at several laboratories related to genetic testing provided by Fluitt’s company, Specialty Drug Testing LLC. The Government copied several terabytes of data from the labs.
The Government then established a “Filter Team,” which reviewed the seized materials for any potentially privileged information, pursuant to the court’s Protocol Order, which established procedures for the filter team to follow. The Order required the filter team to notify any third parties that might have a claim of privilege, and it established a process for those parties to raise a claim. After receiving notice, a third party had 14 days to assert a privilege and object to disclosure.
During the pretrial process, the laboratories’ operator filed a privilege log, but he refused to meet and confer. He also refused to modify the logs or provide any additional information to support his privilege claims. A magistrate judge held a hearing and subsequently entered an order that the Government disclose the disputed documents to Fluitt. The court held that the laboratories and their operator had no standing to challenge that order, but in the alternative, their assertions of privilege were insufficient under federal common law. The lab operator later fled, and he remains a fugitive.
Issue 1: Did the Fifth Circuit have jurisdiction to hear this interlocutory appeal? Yes.
Courts of appeals typically do not have jurisdiction to hear appeals of pretrial discovery orders because those orders are not final. If a party wants immediate appellate review, it must defy the order, be held in contempt, and appeal the contempt order. That method does not work, however, when the party cannot put themselves in contempt.
That exception applied here because the party holding the disputed materials (the Government) was different from the individuals/entities asserting privilege, so the Government did not share their interest in defying the court’s disclosure order. For that reason, the Fifth Circuit had jurisdiction to hear the appeal brought by the laboratories and the lab operator.
Issue 2: Did the non-party labs and operator have standing? Yes.
Normally, an adverse judgment may only be appealed by parties to the case, or those that become a party, but there is an equitable exception for some non-party appeals. That exception requires application of a three-part test that asks whether (1) the non-parties actually participated in the proceeding below, (2) the equities weigh in favor of hearing the appeal, and (3) the non-parties have a personal stake in the outcome. See Searcy v. Philips Elecs. N. Am. Corp., 117 F.3d 154, 157 (5th Cir. 1997). Here, all three factors weighed in favor of hearing the appeal.
Issue 3: Was the appeal moot because the Government had already provided the disputed materials to Fluitt? No.
The issue was not moot because the Fifth Circuit could “still provide [the non-party appellants] effective relief by requiring the clawback of the disclosed materials or prohibiting their disclosure to the Prosecution Team.”
Issue 4: Should the lab operator’s appeal be dismissed under the discretionary fugitive disentitlement doctrine since he fled during the pendency of the appeal? No.
The operator had filed an opening brief, and his arguments were “almost identical” to those raised by the labs, so the court could “largely resolve” his arguments by resolving the lab’s arguments. The court declined to exercise its discretion to apply the fugitive disentitlement doctrine.
Issue 5: Should the appellants prevail in their challenge to the lower court’s order that the Government provide the disputed materials to Fluitt? No, the lower court’s order was affirmed.
The Appellants raised three arguments: “(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.”
As for the first, the court called that a red herring because the Protocol Order was not the basis for the magistrate’s decision. Under federal common law, the party asserting a privilege exemption from a discovery order bears the burden of proving its applicability, and the magistrate judge did not err by requiring appellants to meet that burden.
Second, the magistrate was correct that the Appellant’s privilege logs “failed to adequately substantiate their assertions of privilege” by failing to “provide a description for the documents/emails to explain why each should be protected from disclosure.” These logs listed only:
the names of the parties to the document or communication,
the date,
the file name or subject line (if it was an email) and
a general assertion of privilege, such as “attorney client privilege.”
The logs did not disclose the “roles of the parties to the communication (attorney, client, neither)” or “the nature of the communications (legal or non-legal).” They also did not indicate whether “the materials were prepared in anticipation of litigation,” which is required for work product privilege. As a result, the logs were insufficient to prove the privilege claims, and the Appellants failed to carry their burden of proving privilege applied.
Third, the Appellants’ argument regarding “relevance” under Fed. R. Crim. P. 17 (for subpoenas) was inapt, because the disputed materials were ordered to be produced under Rule 16 (which applies to discovery). The latter requires disclosure of information that is material to the criminal defendant’s defense, and here the Government “determined that it must disclose them.”
N.B.: In a footnote, the court expressed that some members of the panel had “serious concerns about the propriety of having Government filter teams conduct privilege reviews of seized documents,” but that issue was outside the scope of this appeal.
Judge Oldham, dubitante: In a separate opinion, Judge Andrew S. Oldham expressed “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” because “[t]here is nothing traditional about filter teams.”
Here, “the filter team arrogated to itself the power to review the seized documents for privilege. As a result, [the labs were] forced to assert privilege after [their] documents had been seized, spread across the Nation, and subjected to various protocol orders without notice to [them] 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).” As a result, Judge Oldham had “no idea what legal standards should apply to filter teams, which have no obvious foundation in the Federal Rules.”