Federal Judge Rules Government Can Scour All of Lawyer's Seized Computer Records

Mary Pat Gallagher

New Jersey Law Journal

A federal judge has given prosecutors the go-ahead to review computer records seized from the office of a criminal defense lawyer, even if it means looking at files of clients who were not targets of the search.

U.S. District Judge Robert Kugler says the procedure proposed by prosecutors for the review of the records provided adequate safeguards to protect other client files and privileged materials.

Kugler's ruling stems from a May 8 search of Donald Manno's Cherry Hill, N.J., law office by FBI agents executing a warrant that authorized the seizure of documents from Aug. 1, 2006, to date that pertained to 43 individuals and entities, including alleged organized crime figure Nicodemo Scarfo.

The records sought included stock certificates, bonds and other securities-related documents, ledgers, journals and bank, telephone and tax records.

The warrant, issued on May 7 by U.S. Magistrate Judge Ann Marie Donio, allowed the seizure of all computer hardware and electronic storage devices.

The agents copied the hard drives of six office computers as well as the contents of thumb drives, CDs and other external storage devices, and they removed three laptops. An FBI receipt shows agents walked out with eight thumb drives, 40-plus CDs, three DVDs and nine floppy discs.

Manno claims that the FBI grabbed everything without trying to sort out which drives and devices contained responsive materials and that the files taken include information on every one of his clients for the past 15 years, on matters both open and closed.

On June 30, he filed his complaint and order to show cause with a request for preliminary restraints, alleging that the seizure was overbroad and violated the Fourth and Fifth amendments. He asked the court to bar prosecutors from reading the documents and to order return of the files and drives and disclosure of the names or labels of everything inspected by prosecutors.

Prosecutors moved to dismiss the suit, Manno v. Christie, 08-Civ.-3254. At an Aug. 11 hearing, they told Kugler they had not yet started their review and he told them to hold off until he ruled.

On Aug. 22, Kugler denied Manno's request for preliminary restraints, finding the prosecutors' procedure sufficient to protect privilege and thus that there was no irreparable harm.

The process involves use of a so-called "taint team" or "filter team," which comprises an FBI agent and lawyer who are not part of the prosecution team, to screen the seized files. First, an FBI agent will conduct a responsiveness review to determine whether the files are within the scope of the warrant.

Those deemed responsive will then go through a privilege review by Assistant U.S. Attorney Matt Smith, who will turn over nonprivileged items to the prosecution team. For possibly privileged documents, Smith is to decide whether the privilege has been waived or the crime-fraud exception applies. If he believes there is a waiver or exception, Smith is to "meet and confer" with Manno to try to resolve the issue.

If they cannot agree, Smith can ask the court to rule before turning the material over to the prosecution team.

Though Kugler said he shared Manno's concern that Smith might see materials relevant to other investigations he might be working on now or in the future, he termed the concern "speculative," adding that if Smith does see such materials he should stop immediately and alert the court.

Other clients who end up thinking their privileged materials were improperly viewed also have a remedy, said Kugler. They can move to suppress in a later criminal proceeding, and to the extent Manno disagrees with Smith on what is privileged, he can do the same.

Kugler denied Manno's request to appoint a special master, as done in some cases, finding it unnecessary. He noted that Manno did not claim his office was "functionally shut down" by the seizure.

Kugler also found that though the search and seizure allowed by the warrant was broad, it was reasonable and thus Manno had not shown he was likely to succeed. "If all the material in Manno's office was in paper form, government agents could have done a brief review of each document to determine its responsiveness to the warrant," wrote Kugler. "It is therefore reasonable for Agent O'Brien to briefly review each electronic document to determine if it is among the materials authorized by the warrant, just as he could if the search was only of paper files."

Kugler also agreed with prosecutors that granting the restraints sought by Manno would jeopardize an ongoing grand jury investigation.

Manno declines comment and his attorney, Justin Loughry, of Camden, N.J.'s Loughry & Lindsay, was on vacation and could not be reached.

Assistant U.S. Attorney Paul Blaine, one of the prosecutors in the underlying investigation, declines comment.

John Whipple, president of the Association of Criminal Defense Lawyers of New Jersey, says, "what's always troubling in a case like this is you have to rely upon the representations and integrity of ... the taint team."

It is not clear whether the seized CD-ROMs labeled their contents but for any that did have a label showing contents unrelated to the 43 names in the warrant, Whipple asks, "what are agents doing reviewing that CD-ROM?"

The case underscores the importance of labeling and indexing old case files scanned for electronic storage, says Whipple, of Chatham, N.J.'s Arseneault, Whipple, Farmer, Fassett & Azzarello in, noting that Opinion 692 of the Advisory Committee on Professional Ethics, issued in 2002, requires retention of client files in criminal cases while the client is alive.

Manno himself might be a target of the investigation. Kugler's opinion says an FBI affidavit attests "that Manno was using computers in furtherance of alleged criminal activity." The part of the affidavit naming the subjects of the investigation has been blacked out, except for the name Manno.