In Re Search of Electronic Communications

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 14-3752

IN THE MATTER OF THE SEARCH OF ELECTRONIC

COMMUNICATIONS (BOTH SENT AND RECEIVED) IN

THE ACCOUNT OF CHAKAFATTAH@GMAIL.COM AT

INTERNET SERVICE PROVIDER GOOGLE, INC.

Chaka Fattah, Appellant

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-14-mj-00617-001)

District Judge: Honorable Paul S. Diamond

_____________

Argued: January 12, 2015

Before: AMBRO, FUENTES, and ROTH Circuit Judges

(Opinion Filed: September 2, 2015)

Luther E. Weaver III, Esq. ARGUED

Weaver & Associates, P.C.

1525 Locust Street, 14th Floor

Philadelphia, PA 19102

Attorneys for Appellant

Kerry W. Kircher, Esq. ARGUED

United States House of Representatives

Suite 219, Cannon House Office Building

Washington, D.C. 20515

Amicus Attorney Appellant Bipartisan Legal Advisory Group

of the United States House of Representatives

Donald E. Wieand, Jr., Esq.

Stevens & Lee

190 Brodhead Road

Suite 200

Bethlehem, PA 18017

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.

United States Attorney’s Office for the Eastern District of

Pennsylvania

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Attorneys for Appellees

2

OPINION OF THE COURT

FUENTES, Circuit Judge.

This case implicates the Speech or Debate Clause of

the United States Constitution.1 The Government obtained a

search warrant to search the email account of Chaka Fattah, a

United States Congressman. Fattah, along with the

“Bipartisan Legal Advisory Group of the United States House

of Representatives” (as amicus curiae), challenged the

unexecuted search warrant in the District Court primarily on

Speech or Debate Clause grounds. Fattah now appeals the

District Court’s order denying his motion to invalidate the

unexecuted search warrant. Because an unexecuted search

warrant is not separate from the merits of the case and is

reviewable on appeal, if a defendant is convicted, it does not

qualify for review under the collateral order doctrine.

Therefore, we lack jurisdiction to review this unexecuted

search warrant and we dismiss Fattah’s claims under the

Speech or Debate Clause.

I. Factual and Procedural Background

A. The Search Warrant

1

The Speech or Debate Clause provides that, “for any Speech

or Debate in either House, [Senators and Representatives]

shall not be questioned in any other Place.” U.S. Const. art. I,

§ 6, cl. 1.

3

Fattah is the subject of a federal grand jury

investigation pending in the Eastern District of Pennsylvania.2

The Department of Justice, the United States Attorney’s

Office for the Eastern District of Pennsylvania, the Federal

Bureau of Investigation, and the Internal Revenue Service are

leading the investigation, which centers on whether Fattah

violated federal criminal laws relating to fraud, extortion, and

bribery.

Fattah maintains an email account hosted by Google,

Inc., known as “Gmail.” Google acts as a repository,

collecting emails sent and received by Gmail account holders

like Fattah. Fattah uses this Gmail account for personal

matters, but he also uses it for official business relating to his

congressional duties.3 For example, Fattah asserts that he

uses his Gmail account to “communicat[e] with members of

Congress regarding legislative matters”; to email “the

schedule and agendas for House Committee meetings and

related congressional sessions”; and to communicate “with

[his] staff regarding legislative matters and discussions and

documents directly relating to proposed legislative matters.”4

Likewise, Fattah claims that he uses his Gmail account to

engage in privileged attorney-client communications with his

legal counsel.

2

Fattah was indicted by a grand jury on July 29, 2015.

3

Each Member of the House of Representatives has an

official email account. Presently, there is no policy in place

mandating that Members solely utilize the official account to

conduct business. [Tr. 28: 18-22].

4

Gov’t Supp. App. 15.

4

In February 2014, the Government served Fattah with

a grand jury subpoena seeking various documents, including

electronic data from his Gmail account. In response, Fattah

turned over some emails but objected to others on the bases of

the Speech or Debate Clause, overbreadth, and relevance.

Several months later, a magistrate judge issued a search

warrant authorizing the FBI to search Fattah’s Gmail account.

The warrant sought essentially the same information as the

grand jury subpoena. Specifically, the search warrant

requested: “For the period of January 1, 2008, through the

present, concerning Google account

[ChakaFattah@gmail.com], all items which constitute

evidence of a criminal violation of 18 U.S.C. §§ 1343, 1344,

1951, and 201.”5

Pursuant to Google policy, Fattah received an email

from Google on June 18, 2014, stating that it had received a

search warrant from the Government seeking electronic data

from his account. Google explained that it would withhold

the documents for seven calendar days, allowing Fattah time

to object to the request in a court of competent jurisdiction.

Fattah filed a motion to intervene and to quash the search

warrant in the Eastern District of Pennsylvania, arguing that

the warrant’s execution would violate the attorney-client

privilege and work-product doctrine, the Fourth Amendment,

and the Speech or Debate Clause.

B. The District Court Opinion

The District Court granted Fattah’s motion to intervene

but denied his motion to quash the search warrant. The Court

5

Gov’t Supp. App. 11.

5

held that the execution of the warrant would not imperil the

attorney-client privilege or the protection afforded by the

work-product doctrine because the Government had

suggested adequate review procedures, which entailed the use

of a “taint team” to review for privileged documents.

Fattah argued that the warrant and affidavit did not

make out probable cause and that the warrant was general and

overbroad. The Court disagreed and additionally noted the

odd procedural posture of the case, observing that Fattah

“ha[d] cited no reported decision” supporting his contention

that he may raise a Fourth Amendment challenge to a warrant

prior to its execution.6 The Court explained that the proper

remedy for an improvident search warrant is a suppression

hearing.

Likewise, the District Court rejected Fattah’s argument

that the warrant would violate the Speech or Debate Clause.

The Court reiterated this Circuit’s standard that the Speech or

Debate Clause secures a privilege of non-use, rather than of

non-disclosure. The Court explained that “even if [Fattah’s]

private emails include a number of privileged documents, the

mere disclosure of those documents [would] not impugn the

Speech or Debate Clause.”7

In the alternative to quashing the search warrant, the

House requested that the Court modify the warrant and allow

Fattah access to the requested records. Denying the House’s

request, the Court opined that “creating special protections for

a Congressman’s private email account would encourage

6

App. 12.

7

App. 14.

6

corrupt legislators and their aides to make incriminating

communications through private emails, knowing that they

will be disclosed only with the author’s approval.”8

Fattah also fashioned his motion as a Federal Rule of

Criminal Procedure 41(g) motion, a request for return of

property. Fattah argued that the Government was in

“constructive possession” of his property. The District Court

denied this motion as well, explaining that because the

Government has neither actual nor constructive possession,

Rule 41(g) affords him no legitimate basis for relief.

Following the District Court’s rulings, Fattah filed a

notice of appeal to this Court from the District Court’s order

denying the motion to quash the unexecuted search warrant.

On the same day, Fattah filed a motion to stay the order

pending appeal. The District Court held a hearing on the

motion to stay and subsequently denied the motion.

Thereafter, we granted Fattah’s motion for a status quo order

and for a stay of the District Court’s order pending appeal.

II. Discussion

Although Fattah presents several issues on appeal, we

limit our discussion solely to jurisdiction and the proposed

filtering procedures. Fattah proffers three bases for appellate

jurisdiction: (1) the collateral order doctrine, (2) the Perlman

doctrine, and (3) Federal Rule of Criminal Procedure 41(g).

For the reasons that follow, we conclude that we lack

jurisdiction to consider Fattah’s Speech or Debate Clause

8

App. 16.

7

claims, but take jurisdiction with respect to his claims

regarding the filtering procedures.9

A. The Collateral Order Doctrine

Fattah first contends that under the collateral order

doctrine, we have appellate jurisdiction. Under 28 U.S.C. §

1291, an immediate appeal may be taken from any final

decision of the district court. “Although ‘final decisions’

typically are ones that trigger the entry of judgment, they also

include a small set of prejudgment orders that are ‘collateral

to’ the merits of an action and ‘too important’ to be denied

immediate review.”10 Under the collateral order doctrine,

however, a prejudgment order is immediately appealable if it:

(1) conclusively determines the disputed question; (2)

9

The House also suggests that jurisdiction to hear Fattah’s

claims may lie under the All Writs Act, as a petition for

mandamus. Fattah, however, has not sought mandamus

relief. Furthermore, mandamus is an extraordinary remedy,

available only where (1) there is “‘no other adequate means to

attain the relief sought;’” (2) the right to issuance of the writ

is “‘clear and indisputable;’” and (3) the issuing court is

“satisfied that ‘the writ is appropriate under the

circumstances.’” In re Pressman-Gutman Co., Inc., 459 F.3d

383, 399 (3d Cir. 2006) (quoting In re Briscoe, 448 F.3d 201,

212 (3d Cir. 2006)). As previously stated, Fattah has the right

to appeal the denial of a motion to suppress if he is convicted.

Because Fattah has an adequate remedy in a suppression

hearing following execution of the warrant, we decline to

grant jurisdiction under this ground.

10

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103

(2009) (citing Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 546 (1949)).

8

resolves an important issue completely separate from the

merits of the case; and (3) is effectively unreviewable on

appeal from a final judgment.11 A litigant must satisfy all

three requirements to succeed under the collateral order

doctrine. We narrowly construe this exception, taking into

account that “a party is entitled to a single appeal, to be

deferred until final judgment has been entered, in which

claims of district court error at any stage of the litigation may

be ventilated.”12

Furthermore, the Supreme Court has noted that

application of the collateral order doctrine involves a

categorical inquiry and “[a]s long as the class of claims, taken

as a whole, can be adequately vindicated by other means, the

chance that the litigation at hand might be speeded, or a

particular injustice averted, does not provide a basis for

jurisdiction under § 1291.”13 The Court emphasized, “[t]he

crucial question . . . is not whether an interest is important in

the abstract; it is whether deferring review until final

judgment so imperils the interest as to justify the cost of

allowing immediate appeal of the entire class of relevant

orders.”14

Fattah appeals from the District Court’s order denying

a motion to quash an unexecuted search warrant on Speech or

Debate Clause grounds. He relies on our decision in United

11

Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,

867 (1994).

12

Id. at 868.

13

Mohawk Indus., Inc., 558 U.S. at 107 (internal quotation

marks and alterations omitted).

14

Id. at 108.

9

States v. McDade where we held that we had jurisdiction to

entertain an appeal regarding a motion to dismiss an

indictment under the Speech or Debate Clause.15 Fattah cites

to our language in McDade stating, “[w]e also have

jurisdiction to review any of the district court’s other rulings

regarding the Speech or Debate Clause that satisfy all of the

requirements of the collateral order doctrine.”16 Notably, we

followed this statement with the caveat that “[o]ur

jurisdiction, however, extends no further,” recognizing the

limits of the collateral order doctrine.17 McDade, however, is

inapplicable because Fattah’s claim under the collateral order

doctrine falters. We review each requirement below.

1. The first prong of the collateral order doctrine

requires us to determine whether the District Court’s order

conclusively determines the disputed issue. Fattah satisfies

the first prong of the test. His motion to quash raised the

issue of whether the search warrant could be executed, and

the District Court conclusively answered that question in the

affirmative. Thus, the order conclusively determined the

disputed issue. Fattah, however, fails to satisfy either the

second or third prongs, dooming his argument.

2. The second inquiry of the collateral order doctrine

asks whether the District Court’s order resolves an important

question completely separate from the merits. Fattah argues

that the Speech or Debate Clause issues are “extremely

important issues” that are separate from the merits of the case.

He contends that because no indictment has been returned,

15

28 F.3d 283 (3d Cir. 1994).

16

Id. at 288.

17

Id.

10

the issue is separate from the merits because there is no

“underlying action.” He is incorrect.

The Supreme Court has defined an “important issue”

as “one involving interests that are ‘weightier than the

societal interests advanced by the ordinary operation of final

judgment principles’ or one that is ‘serious and unsettled.’”18

Moreover, “an issue is important if the interests that would

potentially go unprotected without immediate appellate

review are significant relative to efficiency interests sought to

be advanced by adherence to the final judgment rule.”19

Here, Fattah contends that the Speech or Debate privilege is

one of non-disclosure and that “[t]he district court’s ruling is

one of important constitutional dimensions broader in scope

than just the interest of an individual Congressman, being ‘of

great institutional interest to the House as a whole.’”20

Fattah’s argument, however, misconstrues the term

“important.” We have held that, “[t]he type of ‘important

issue[s]’ that the ‘completely separate from the merits’

requirement encompasses are those that are important in a

jurisprudential sense.’”21 First, as we have previously said,

18

United States v. Wecht, 537 F.3d 222, 230 (3d Cir. 2008)

(quoting Digital Equip. Corp., 511 U.S. at 879; Cohen, 337

U.S. at 547).

19

Pierce v. Blaine, 467 F.3d 362, 370-71 (3d Cir. 2006)

(internal quotation marks and citation omitted).

20

Appellant’s Br. 25 (quoting In re Grand Jury (Eilberg),

587 F.2d 589, 593 (3d Cir. 1978)).

21

Praxis Props., Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d

49, 54 (3d Cir. 1981) (second alteration in original) (quoting

Nemours Found. v. Manganaro Corp., New England, 878

11

the Speech or Debate privilege, as applied to records, is one

of non-use versus non-disclosure. That is, while the privilege

prohibits evidentiary “use” of records, it does not prohibit

disclosure of records to the Government in the course of an

investigation. Thus, the issue is not unsettled—indeed, this

Court has decisively settled the issue in a manner that

forecloses Fattah’s argument.22

Second, in addition to failing to raise an important

issue, we believe Fattah’s claim is not completely separate

from the merits. The requirements for collateral appeal are

particularly “stringent” in the criminal context because “‘the

delays and disruptions attendant upon intermediate appeal,’

which the rule is designed to avoid, ‘are especially inimical to

the effective and fair administration of the criminal law.’”23

Indeed, the only orders that have been held to fall within the

collateral order doctrine in a criminal action are: orders

denying motions to reduce bail; orders denying motions to

dismiss on double jeopardy grounds; orders denying

immunity under the Speech or Debate Clause; and orders

F.2d 98, 100 (3d Cir. 1989)) (internal quotation marks

omitted).

22

See United States v. Helstoski, 635 F.2d 200, 203 (3d Cir.

1980); In re Grand Jury Investigation (Eilberg), 587 F.2d at

597; In re Grand Jury (Cianfrani), 563 F.2d 577, 584 (3d Cir.

1977).

23

Abney v. United States, 431 U.S. 651, 657 (1977) (quoting

Di Bella v. United States, 369 U.S. 121, 126 (1962)).

12

directing defendants to be medicated against their will to

render them competent to stand trial.24

Unlike these orders, which “finally resolve issues that

are separate from guilt or innocence,”25 a motion to suppress

an unexecuted search warrant may substantially affect the

merits of the case. We have held that “a pretrial ruling on a

suppression motion is not a collateral order under 28 U.S.C. §

1291 because the motion ‘presents an issue that is involved in

and will be part of a criminal prosecution in process at the

time the order is issued.’”26 The same is true of a motion to

quash a warrant. The fruits of a search warrant may become

part of the criminal prosecution. In most cases, the fruits

become part of the evidentiary chain of proof. Therefore, an

order denying a motion to quash an unexecuted search

warrant stands in stark contrast to the orders previously

mentioned, which, for example, challenge the very authority

of the Government to prosecute a defendant.27 Accordingly,

24

See Stack v. Boyle, 342 U.S. 1, 6 (1951); Abney, 431 U.S. at

659; Helstoski v. Meanor, 442 U.S. 500, 506–08 (1979); Sell

v. United States, 539 U.S. 166, 176 (2003).

25

Flanagan v. United States, 465 U.S. 259, 266 (1984).

26

United States v. Williams, 413 F.3d 347, 355 (3d Cir. 2005)

(quoting Di Bella, 369 U.S. at 127).

27

See, e.g., Abney, 431 U.S. at 659 (explaining that “the very

nature of a double jeopardy claim is such that it is collateral

to, and separable from the principal issue at the accused’s

impending criminal trial, i.e., whether or not the accused is

guilty of the offense charged” and instead the claim

“contest[s] the very authority of the Government to hale him

into court to face trial on the charge against him”).

13

Fattah fails to satisfy this requirement of the collateral order

doctrine.

3. The third prong of the collateral order doctrine

focuses on whether the District Court’s order is effectively

unreviewable on appeal. Fattah asserts that the District

Court’s order leaves him with no remedy since it does not

limit the Government’s access to or use of Speech or Debate

Clause documents. First, this argument relies on Fattah’s

misconception that the Speech or Debate Clause provides a

privilege of non-disclosure. Instead, as we discuss further

below, because we have held that it is a privilege of non-use

when applied to documents, the Government is not prohibited

from accessing the documents. In addition, his argument is

plainly belied by our own precedent. In In re Solomon, we

denied a defendant’s motion to suppress an unexecuted search

warrant, holding that the defendant had other available

remedies.28 We explained that the motion to suppress the

search warrant was not effectively unreviewable because the

defendant could move to suppress the evidence, and “[i]f that

motion is denied, and if [he] is convicted, the denial of the

motion to suppress may then be asserted as a ground for

appeal from the final judgment.”29 The same is true here.

Our binding precedent requires us to narrowly

circumscribe the contours of the collateral order doctrine.

And, as the Supreme Court has emphasized, “although the

Court has been asked many times to expand the ‘small class’

of collaterally appealable orders, we have instead kept it

28

465 F.3d 114, 122-23 (3d Cir. 2006).

29

Id. at 122.

14

narrow and selective in its membership.”30 As such, we

decline Fattah’s invitation to expand this discerning

membership to motions to quash unexecuted search warrants.

Because Fattah’s claim is not completely separate from the

merits and is reviewable upon appeal, the collateral order

doctrine is unavailing as a basis for appellate jurisdiction. We

therefore lack jurisdiction under the collateral order doctrine

to entertain this appeal.

B. The Perlman Doctrine

1. The Perlman Doctrine Does Not Provide

Jurisdiction for Fattah’s Speech or Debate Clause

Claims.

Fattah’s claims regarding the Speech or Debate Clause

fare no better under the so-called Perlman doctrine. The

Perlman doctrine refers to the legal principle that a discovery

order aimed at a third party may be immediately appealed on

the theory that the third party will not risk contempt by

refusing to comply.31 Disclosure orders are not final orders

appealable under 28 U.S.C. § 1291. Rather, “[t]o obtain

immediate appellate review, a privilege holder must disobey

the court’s order, be held in contempt, and then appeal the

contempt order,” which is considered a final order.32 The

Supreme Court’s decision in Perlman v. United States

established an exception when the traditional contempt route

is unavailable because the privileged information is controlled

by a disinterested third party who is likely to comply with the

30

Will v. Hallock, 546 U.S. 345, 349-50 (2006).

31

As previously noted, Google, as custodian of the records at

issue, is the third party in this case.

32

In re Grand Jury, 705 F.3d 133, 138 (3d Cir. 2012).

15

request rather than be held in contempt for the sake of an

immediate appeal.33 In these circumstances, a litigant

asserting a legally cognizable privilege may timely appeal an

adverse disclosure order. The reasoning behind Perlman lies

in the inequity of leaving a privilege-holder “powerless to

avert the mischief of the order,” and forcing him to “accept its

incidence and seek a remedy at some other time and in some

other way.”34 Moreover, Perlman “reflected concern that

where the subject of the discovery order (characteristically

the custodian of documents) and the holder of a privilege are

different, the custodian might yield up the documents rather

than face the hazards of contempt, and would thereby destroy

the privilege.”35 The question we address today is whether

Perlman should apply even where Fattah fails to cite a legally

cognizable privilege.

Fattah argues that the Speech or Debate Clause

precludes execution of the search warrant. He contends that

the privilege is one of non-disclosure and that the search

warrant was served on Google, which “is a disinterested third

party which is not likely to permit itself to be placed in

contempt” on his behalf.36 As such, he asserts that his is the

paradigmatic Perlman case, and that he is entitled to

immediately appeal the District Court’s order. We disagree.

33

247 U.S. 7, 12-13 (1918).

34

Id. at 13.

35

In re Flat Glass Antitrust Litig., 288 F.3d 83, 90 n.9 (3d

Cir. 2002) (quoting In re Sealed Case, 141 F.3d 337, 340

(D.C. Cir. 1998)).

36

Appellant’s Br. at 28-29.

16

Fattah urges that our decision in In re Grand Jury is

instructive.37 There, the Government moved to compel a law

firm to provide documentation regarding its representation of

a corporation that was the subject of a federal criminal

investigation. The corporation objected to the subpoenas

served upon the law firm, but the district court granted the

Government’s motions to enforce. The corporation sought an

immediate appeal under the Perlman doctrine predicated on

the attorney-client privilege and work-product doctrine. We

held that the corporation was entitled to immediately appeal

the adverse disclosure order to protect those privileges.38

In this case, there is an important distinction to be

drawn: Fattah fails to cite a legally cognizable privilege.

Indeed, Fattah relies heavily on our case law discussing the

Perlman doctrine in the attorney-client privilege context.39

37

705 F.3d at 133.

38

Id. at 149.

39

See, e.g., In re Grand Jury Subpoena, 745 F.3d 681, 686-87

(3d Cir. 2014) (permitting a client and corporation to

intervene and quash a subpoena directed to their attorney for

testimony under the Perlman doctrine on the basis of the

attorney-client privilege and work-product doctrine); In re

Grand Jury Proceedings (FMC Corp.), 604 F.2d 798, 800-01

(3d Cir. 1979) (permitting a corporation to intervene and

immediately appeal an adverse disclosure order to protect the

attorney-client privilege and work-product doctrine). The

only case Fattah cites to applying the Perlman doctrine in the

context of the Speech or Debate clause is In re Grand Jury

(Cianfrani), 563 F.2d 577 (3d Cir. 1977). That case,

however, is distinguishable. First, the case involved a state

senator who was charged in a federal prosecution. We

17

He fails to cite any precedent discussing Perlman’s

applicability to the Speech or Debate Clause.40 The Speech

or Debate Clause encompasses three main protections, it: (1)

bars civil and criminal liability for “legislative acts”;41 (2)

ultimately held that neither the state nor federal Speech or

Debate Clause privileges extended in such a case. Id. at 580-

82. Second, the case involved a subpoena versus an

unexecuted search warrant. A subpoena, of course, may be

challenged prior to compliance. In stark contrast, a search

warrant is properly challenged after it is executed.

Accordingly, In re Grand Jury (Cianfrani) is of limited utility

to Fattah.

40

For its part, the House of Representatives as amicus insists

that Gravel v. United States, 408 U.S. 606 (1972), is “on all

fours.” House Br. 22. We disagree. In Gravel, a Senator

moved to prevent the questioning of his aide in a grand jury

proceeding. The Court held that the privilege established by

the Speech or Debate Clause that prevents the questioning of

a Member of Congress regarding legislative acts likewise bars

the questioning of a Member’s aide regarding actions which

would have been legislative acts, and therefore privileged, if

performed by the Member personally. The Court, however,

did not squarely address the Perlman issue. Id. at 608, n.1

(“The Court of Appeals, United States v. Doe, 455 F.2d 753,

756-757 (CA1 1972), held that because the subpoena was

directed to third parties, who could not be counted on to risk

contempt to protect intervenor's rights, Gravel might be

‘powerless to avert the mischief of the order’ if not permitted

to appeal, citing Perlman v. United States, 247 U.S. 7, 13, 38

S. Ct. 417, 62 L.Ed. 950 (1918). The United States does not

here challenge the propriety of the appeal.”).

41

Doe v. McMillan, 412 U.S. 306, 311-12 (1973).

18

guarantees that a Member, or his alter ego, may not be made

to answer questions about his legislative acts;42 and (3) bars

the use of legislative-act evidence against a Member.43 Here,

we address the evidentiary privilege as applied to records.

While courts have recognized that the bounds of these

protections vary, they are all rooted in the notion that, “to the

extent that the Speech or Debate Clause creates a Testimonial

privilege as well as a Use immunity, it does so only for the

purpose of protecting the legislator and those intimately

associated with him in the legislative process from the

harassment of hostile questioning.”44 Courts have interpreted

the term “questioning” broadly to forbid submission of

legislative act evidence to a jury—whether in the form of

testimony or records.45

It cannot be, however, that the privilege prohibits

disclosure of evidentiary records to the Government during

the course of an investigation. In re Grand Jury (Eilberg)

provides a good example. There we held that the disclosure

of telephone records containing Speech or Debate Clause

42

Gravel, 408 U.S. at 616.

43

United States v. Helstoski, 442 U.S. 477, 487 (1979).

44

In re Grand Jury (Eilberg), 587 F.2d at 597.

45

United States v. Renzi, 769 F.3d 731, 746 (9th Cir. 2014),

petition for cert. filed, No. 14-1082 (Mar. 9, 2015) (“Evident

from its plain language, the focus is on the improper

questioning of a Congressman. As such, the Clause is violated

when the government reveals legislative act information to a

jury because this would subject a Member to being

‘questioned’ in a place other than the House or the Senate.”

(internal quotation marks omitted)).

19

privileged documents was permissible.46 Moreover, we

explained that the evidentiary privilege “[was] not designed

to encourage confidences by maintaining secrecy, for the

legislative process in a democracy has only a limited

toleration for secrecy.”47

This makes good sense. If it were any other way,

investigations into corrupt Members could be easily avoided

by mere assertion of this privilege. Members could, in effect,

shield themselves fully from criminal investigations by

simply citing to the Speech or Debate Clause. We do not

believe the Speech or Debate Clause was meant to effectuate

such deception. Rather, the “purpose of the Speech or Debate

Clause is to protect the individual legislator, not simply for

his own sake, but to preserve the independence and thereby

the integrity of the legislative process.”48 That is, the Clause

was meant to free “the legislator from the executive and

judicial oversight that realistically threatens to control his

conduct as a legislator.”49 The crux of the Clause is to

“prevent intimidation by the executive and accountability [for

legislative acts] before a possibly hostile judiciary.”50 It is

clear that the purpose, however, has never been to shelter a

Member from potential criminal responsibility.

46

In re Grand Jury (Eilberg), 587 F.2d at 597.

47

Id. (citing U.S. Const. art. 1 § 5, cl. 3).

48

United States v. Renzi, 651 F.3d 1012, 1036 (9th Cir. 2011)

(quoting United States v. Brewster, 408 U.S. 501, 524-25

(1972)).

49

Helstoski, 442 U.S. at 492 (quoting Gravel, 408 U.S. at

618).

50

Id. at 491 (quoting United States v. Johnson, 383 U.S. 169,

181 (1966)).

20

Any other reading of this privilege would eradicate the

integrity of the legislative process and unduly amplify the

protections to the individual Member. Indeed, “financial

abuses by way of bribes, perhaps even more than Executive

power, would gravely undermine legislative integrity and

defeat the right of the public to honest representation.

Depriving the Executive of the power to investigate and

prosecute and the Judiciary of the power to punish bribery of

Members of Congress is unlikely to enhance legislative

independence.”51 We decline to strip the legislative process,

and the public, of this protection.

Accordingly, while the Speech or Debate Clause

prohibits hostile questioning regarding legislative acts in the

form of testimony to a jury, it does not prohibit disclosure of

Speech or Debate Clause privileged documents to the

Government. Instead, as we have held before, it merely

prohibits the evidentiary submission and use of those

documents.

Thus, based on these distinctions, we hold that the

Perlman doctrine does not apply to the Speech or Debate

Clause with respect to records disclosed to the Government in

the course of an investigation. The Speech or Debate Clause

does not prohibit the disclosure of privileged documents.

Rather, it forbids the evidentiary use of such documents. As

such, there is no “mischief” for Fattah to stymy as there is no

privilege in danger of destruction. Fattah is unable to

challenge the disclosure regardless of to whom the request is

51

Renzi, 651 F.3d at 1036 (emphasis in the original) (quoting

Brewster, 408 U.S. at 524–25).

21

made. This differs from a challenge to a subpoena requesting

attorney-client privileged documents, where, as the saying

goes, you cannot “unring the bell.” In that scenario, no

remedy assuages disclosure and the privilege may very well

be destroyed. Fattah’s challenge is far less serious and

therefore should not receive such protections. There is no

bell to unring here—the privileged documents may be

disclosed without violating the privilege, and Fattah may

avail himself of several remedies to any alleged illegal search

or seizure.

The impetus of the Perlman doctrine is to protect

privilege holders from the disclosure of privileged materials

by a disinterested third-party. Here, Fattah fails to cite a

legally cognizable privilege to support his claim.

Accordingly, Perlman is inapplicable, and we hold that we

lack jurisdiction to entertain this appeal under this ground as

well.

2. The Perlman Doctrine Provides Jurisdiction to

Review Fattah’s Claims Under the Attorney-Client

Privilege and Work-Product Doctrine.

Fattah contends that the Perlman doctrine provides

appellate jurisdiction for this Court to review the merits of his

attorney-client privilege and work-product doctrine claims

regarding inadequate filtering procedures. We agree. Unlike

Fattah’s Speech or Debate Clause claim, this claim succeeds

because it is predicated on legally cognizable privileges

continuously recognized under the Perlman Doctrine.52

Because the attorney-client privilege and work-product

52

See, e.g., In re Grand Jury Subpoena, 745 F.3d at 686.

22

doctrine are non-disclosure privileges that may in fact be

destroyed by a disinterested third-party, Perlman applies.

On the merits of this issue, Fattah argues that the

District Court erred in approving the Government’s proposed

filtering procedures regarding documents protected by the

attorney-client privilege and work-product doctrine. These

procedures involved the use of a “taint team” to review for

privileged documents, a common tool employed by the

Government.53 The team, however, is structured to include a

non-attorney federal agent at the first level of review,

followed by review by independent attorney federal agents.

Moreover, Fattah contends that he does not have the

opportunity to assert his privilege with respect to certain

documents deemed to be “clearly not privileged” until after

they are turned over to those prosecuting his case.

53

Certain courts have limited the circumstances in which

prosecutors may employ taint teams during criminal

investigations. See, e.g., In re Grand Jury Subpoenas, 454

F.3d 511, 522 (6th Cir. 2006). But because Fattah does not

argue that the use of a taint team is inappropriate in his case,

we have no occasion to consider the appropriate limits, if any,

on their use. Of course, a court always retains the prerogative

to require a different method of review in any particular case,

such as requiring the use of a special master or reviewing the

seized documents in camera itself. See, e.g., Klitzman,

Klitzman & Gallagher v. Krut, 744 F.2d 955, 962 (3d Cir.

1984); Black v. United States, 172 F.R.D. 511, 516 (S.D. Fla.

1997); United States v. Abbell, 914 F. Supp. 519, 520–21

(S.D. Fla. 1995); In re Search Warrant for Law Offices

Executed on Mar. 19, 1992, 153 F.R.D. 55, 59 (S.D.N.Y.

1994).

23

Fattah maintains that only attorneys should be

involved in this type of privilege review and that the District

Court did not realize a non-attorney agent would be the first

line review.54 Thus, Fattah argues that “eliminated from the

initial determination of what may be privileged is the only

professional qualified to make that determination.”55 Fattah

also argues that he should have an opportunity to work with

prosecutors to identify privileged documents and that he

should be entitled to a court ruling on any documents he

claims are privileged before the filter agents turn these

documents over to the prosecutorial arm of the Department of

Justice (DOJ). Because of the legal nature of the privilege

issues involved, we agree that the first level of privilege

review should be conducted by an independent DOJ attorney

acceptable to the District Court. Fattah's remaining

arguments regarding the structure of the review process, we

believe, are more appropriately addressed by a district court

in the first instance on a case-by-case basis. On remand, the

District Court may thus, in its discretion, implement those

procedures it deems necessary to protect Fattah’s privileges.

54

Indeed, the District Court held that the use of “taint teams”

had been cited with approval in this Circuit. The cases the

District Court cited to, however, all involved an attorney at

the first level of review. See, e.g., Manno v. Christie, No. 08-

cv-3254, 2009 U.S. Dist. LEXIS 31470 (D.N.J., Apr. 13,

2009). Likewise, the District Court never explicitly

acknowledged that review would be conducted by a non-

lawyer. Rather, the court stated review would be conducted

by “FBI Special Agents not involved in the investigation.”

App. 10.

55

Fattah Br. 61.

24

C. Fattah’s Federal Rule of Criminal Procedure 41(g)

Motion

Fattah also styled his pre-indictment motion as a

request for relief under Federal Rule of Criminal Procedure

41(g) and contends that under this rule we have appellate

jurisdiction. The Rule sets out the procedures criminal

defendants should employ for the return of property,

providing:

(g) Motion to Return Property. A

person aggrieved by an unlawful

search and seizure of property or

by the deprivation of property

may move for the property's

return. The motion must be filed

in the district where the property

was seized. The court must

receive evidence on any factual

issue necessary to decide the

motion. If it grants the motion, the

court must return the property to

the movant, but may impose

reasonable conditions to protect

access to the property and its use

in later proceedings.

Denial of a pre-indictment Rule 41(g) motion is

immediately appealable, only if the motion is: (1) solely for

the return of property and (2) is in no way tied to an existing

criminal prosecution against the movant.56 In this case, the

56

Di Bella, 369 U.S. at 131-32; see also In re Grand Jury,

635 F.3d 101, 103-05 (3d Cir. 2011).

25

warrant has yet to be executed, and the Government has yet to

seize the evidence Fattah seeks returned. Therefore, there is

no property to return. As such, we lack appellate jurisdiction

under this ground as well.

III. Conclusion

We take seriously the sentiments and concerns of the

Supreme Court that Members are not to be “super-citizens”

immune from criminal liability or process.57 Permitting an

interlocutory appeal of an order denying a motion to quash an

unexecuted search warrant based on the Speech or Debate

Clause would set bad precedent and insulate Members from

criminal investigations and criminal process. This, of course,

cannot and should not be the purpose of the Clause. Thus, for

all of the reasons above, we dismiss Fattah’s appeal regarding

his Speech or Debate Clause claims for lack of jurisdiction

and we remand to the District Court his claim with respect to

inadequate filtering procedures.

57

Brewster, 408 U.S. at 516.

26

In the Matter of the Search of Electronic Communications

No. 14-3752

_________________________________________________

AMBRO, Circuit Judge, dissenting in part:

I agree with my colleagues that the Speech or Debate

Clause does not confer a privilege of confidentiality. Thus,

the motion to quash the search warrant on that basis must be

denied. Any other conclusion is foreclosed by a long line of

precedent.1 However, that Fattah’s argument lacks merit does

not, in my view, deprive us of jurisdiction to review his claim

under the Perlman doctrine. “Rather, the lack of merit means

that the claim of [privilege] should be denied for just that

reason—it lacks merit.” Powell v. Ridge, 247 F.3d 520, 527

(3d Cir. 2001) (Roth, J., dissenting). I thus respectfully

dissent in part.

“When a district court orders a witness—whether a

party to an underlying litigation, a subject or target of a grand

jury investigation, or a complete stranger to the

proceedings—to testify or produce documents, its order

generally is not considered an immediately appealable ‘final

decision[ ]’ under § 1291.” In re Grand Jury, 705 F.3d 133,

1

Of course, our binding precedent also provides that, while

the Government has a right to review the documents and

argue privilege, Fattah has an equal right to participate in that

process, particularly given “the information as to [what] were

legislative acts is in his possession alone.” In re Grand Jury

Investigation (Eilberg), 587 F.2d 589, 597 (3d Cir. 1978); see

also id. (holding that a congressman asserting the Speech or

Debate Clause privilege in a grand-jury proceeding “should

be permitted to indicate by affidavit or testimony those calls

which he contends are privileged”).

142 (3d Cir. 2012) (alteration in original). The appellant

instead only secures the right to an immediate appeal when he

defies the order, is held in contempt, and appeals the

contempt order. This rule, “‘though at times a harsh one,’”

discourages “‘all but the most serious’” appeals because “[i]t

forces the objector to weigh carefully the likelihood of

success of its challenge” along with “the importance it

attaches to avoiding the ordered disclosure and protecting any

associated privileges.” Id. at 143 (quoting In re Grand Jury

Proceedings, 604 F.2d 798, 800 (3d Cir. 1979)). In effect,

review remains available through this route even where the

likelihood of success is low so long as the importance

attached is high.

Where a disclosure order is addressed to a

disinterested third party, however, the incentive structure

shifts. Unlike the holder of a privilege, a mere custodian of

records cannot be “expected to risk a citation for contempt in

order to secure [the privilege holder] an opportunity for

judicial review.” United States v. Ryan, 402 U.S. 530, 533

(1971). Moreover, without a means to force the third party to

protect the privilege holder’s rights, it is “left . . . ‘powerless

to avert the mischief of [a disclosure] order.’” Id. (quoting

Perlman v. United States, 247 U.S. 7, 13 (1918)). Under the

Perlman doctrine, we allow a party opposing a discovery

order on grounds of privilege to appeal immediately where

the order is directed at a third party who lacks a sufficient

stake in the proceeding to risk contempt by refusing

compliance. See id.

The same principle applies here: As the party on which

the warrant was served, Google could refuse to comply and

seek appellate review through a separate proceeding for

2

contempt.2 However, it presumably has little incentive to do

so because the asserted privilege belongs not to Google but to

Fattah. Moreover, without custody of the allegedly privileged

documents, Fattah cannot himself defy the order to force an

interlocutory appeal. Accordingly, Fattah’s case falls

squarely within Perlman’s rationale.

My colleagues of course suggest otherwise. They

conclude that we are without jurisdiction because there is no

confidentiality privilege under the Speech or Debate Clause.

But “[t]he question of the existence of a privilege . . .

pertain[s] to the merits,” Slark v. Broom, 7 La. Ann. 337, 342

(1852), and it is well established that “jurisdiction under the

Perlman doctrine does not rise or fall with the merits of the

appellant’s underlying claim for relief,” Doe No. 1 v. United

States, 749 F.3d 999, 1006 (11th Cir. 2014). See also Ross v.

City of Memphis, 423 F.3d 596, 599 (6th Cir. 2005)

2

To the extent the Government argues that even contempt

proceedings are unavailable for review of an unexecuted

search warrant issued under 28 U.S.C. § 2703(b)(1), this

position is directly inconsistent with its position in a pending

Second Circuit case. See Brief of the United States of

America at 8 n.5, In re Warrant To Search Certain E-Mail

Account Controlled & Maintained by Microsoft Corp., No.

14-2985 (2d Cir. Mar. 9, 2005) (noting that the District

Court’s “entry of a contempt order” gave the Second Circuit

jurisdiction to review an unexecuted search warrant issued

under § 2703); see also In re Warrant To Search a Certain E-

Mail Account Controlled & Maintained by Microsoft Corp.,

No. 13-mj-2814, 2014 WL 4629624 (S.D.N.Y. Aug. 29,

2014) (Preska, C.J.). (Interestingly, in that case the

Government also has taken the contrary position that this type

of search warrant isn’t really a search warrant at all.)

3

(“[Perlman] jurisdiction does not depend on the validity of

the appellant’s underlying claims for relief.”). Rather, “[i]t is

the possibility of disclosure of information which is thought

to be confidential that is central to the Perlman exception.”

United States v. Calandra, 706 F.2d 225, 228 (7th Cir. 1983)

(emphasis added).

Not only do my colleagues fail to cite any case law for

their novel proposition that the Perlman doctrine depends on

the cognizability of the privilege asserted, they also overlook

numerous cases to the contrary. This includes Perlman itself,

where the Supreme Court reviewed the petitioner’s claims on

interlocutory appeal despite concluding his arguments lacked

merit. See Perlman, 247 U.S. at 13–15. Indeed, we have

routinely invoked the Perlman doctrine as the basis for our

jurisdiction, only to decide ultimately that the appellant lacks

the privilege asserted. See, e.g., In re Grand Jury Impaneled

Jan. 21, 1975, 541 F.2d 373, 381, 383 (3d Cir. 1976)

(rejecting “the application of a state required reports privilege

as a matter of federal common law” though concluding the

appellant “had standing to intervene below and challenge the

subpoena on the basis of his claim of privilege”); In re Grand

Jury, 103 F.3d 1140, 1144 (3d Cir. 1997) (refusing to

recognize a cognizable “parent-child privilege” but citing

Perlman as the basis for its jurisdiction).

We are not without company; other appellate courts

have done the same. See, e.g., In re Grand Jury Proceedings,

832 F.2d 554, 560 (11th Cir. 1987) (permitting an

interlocutory appeal, but holding “that the privilege asserted

by [the] appellants [was] without a basis in Florida law” and

that they “ha[d] no privilege of nondisclosure under state

law”); In re: a Witness Before the Special Grand Jury 2000-2,

288 F.3d 289, 291, 295 (7th Cir. 2002) (invoking Perlman for

the court’s jurisdiction though refusing to extend the attorney-

4

client privilege to communications between government

attorneys and their state clients).

The failure to recognize our jurisdiction under

Perlman is particularly puzzling given that we have

previously relied on that doctrine to review—and reject—

indistinguishable attempts to bar disclosure under the Speech

or Debate Clause. While my colleagues distinguish one such

case, In re Grand Jury Proceedings (Cianfrani), 563 F.2d 577

(3d Cir. 1977), as having involved a state, rather than federal,

congressperson, I fail to see the relevance of that distinction.

Neither did a panel of our Court the following year when U.S.

Congressman Eilberg intervened in grand-jury proceedings

and appealed. See Eilberg, 587 F.2d at 597 (concluding we

had jurisdiction to review the interlocutory appeal, but

holding, that, “as we ha[d] said on two other occasions, the

[Speech or Debate] privilege when applied to records or third-

party testimony is . . . not [one] of non-disclosure” (citing

United States v. Helstoski, 576 F.2d 511 (3d Cir. 1978), aff’d,

442 U.S. 477 (1979), aff’d sub nom. Helstoski v. Meanor, 442

U.S. 500 (1979); Cianfrani, 563 F.3d 577)).

Finally, that these prior Speech or Debate Clause cases

arose in the context of a subpoena duces tecum (rather than

search warrant) is also an irrelevant distinction. If the

Perlman doctrine did not apply to search warrants, Fattah

would similarly be unable to rely on that doctrine to appeal

his attorney-client privilege and work-product claims. Yet

here my colleagues correctly rely on the Perlman doctrine to

conclude that “this claim succeeds.” Majority Op. 22.

Similarly, other courts have applied Perlman even though a

search warrant has been used. See, e.g., In re Berkley & Co.,

629 F.2d 548, 551–52 (8th Cir. 1980) (applying Perlman to

consider the denial of a motion to prevent the Government

from disclosing to the grand jury certain privileged

documents it had previously seized); United States v. Griffin,

5

440 F.3d 1138, 1143 (9th Cir. 2006) (applying the Perlman

doctrine where seized documents were in the temporary

possession of a special master); In re Sealed Case, 716 F.3d

603, 612 (D.C. Cir. 2013) (Kavanaugh, J., concurring)

(suggesting that if a search warrant is used to seize allegedly

privileged documents, the order would be appealable under

Perlman (citing Berkley, 629 F.2d 548)).

The Supreme Court has repeatedly admonished

appellate courts not to “conflate[e] the jurisdictional question

with the merits of the appeal.” Arthur Andersen LLP v.

Carlisle, 556 U.S. 624, 627 (2009). I believe that, by

intertwining the cognizability of the privilege with that of an

appellate court’s jurisdiction, the majority contravenes this

mandate. I therefore respectfully dissent in part.

6