In re Investigation of Ingram
In re Investigation of Ingram
Opinion of the Court
ORDER AND REASONS
Before the Court is a motion,
BACKGROUND
On April 13, 2011, Southeast Recovery Group, LLC (“Southeast”), filed a lawsuit against BP America, Inc. (“BP”), in the U.S. District Court for the Eastern District of Louisiana to recover certain payments that BP allegedly owes Southeast for use of a helicopter, provided to the St. Bernard Parish Sheriffs Office (“Sheriffs Office”), which was used to respond to the aftermath of the 2010 Deepwater Horizon oil spill (“the spill”).
In its civil lawsuit, Southeast contends that, following the spill, a BP representative contacted the Sheriffs Office and offered a cash advance against any spill-related expenses that St. Bernard Parish incurred.
In early 2011, before Southeast filed its complaint, the government became aware of alleged “discrepancies and irregularities” in the invoices submitted to BP and it initiated an investigation of the matter.
As a result of this criminal investigation, the grand jury issued subpoenas to Ingram in his official and personal capacities. These subpoenas ordered Ingram to produce several types of documents, including “[correspondence (electronic or written).”
Yahoo produced the requested evidence on January 6, January 18 and February 2, 2012.
The government’s proposed filter team protocol
Once all privilege determinations are final, non-privileged e-mails shall be submit
Ingram opposes the government’s proposed filter team protocol, contending that “the ‘taint team’ procedure impermissibly intrudes on the attorney-client privilege and runs a grave risk that privileged materials will fall into the hands of the attorneys involved in the investigation.”
LAW AND ANALYSIS
The Fifth Circuit has never endorsed or disparaged the filter team protocol that the government proposes in this case.
Ingram counters that the only U.S. Circuit Court of Appeals to have extensively examined the role of filter teams when reviewing privileged documents — the Sixth Circuit in In re Grand Jury Subpoenas, 454 F.3d 511 (6th Cir. 2006) — has decisively rejected them because they “ ‘pose a serious risk to the holders of the [attorney-client or work product] privilege.’ ”
First, Ingram failed to produce many of the e-mails that are subject to the grand jury’s investigation. Consequently, the emails seized from [email protected] and [email protected] are in the government’s possession due to the execution of a lawfully obtained search warrant. Second, the government has demonstrated respect for any potential privilege by seeking the Court’s permission before moving forward with its investigation. See Taylor, 2010 WL 2924414, at *1. The Court finds that the government’s proposed filter team protocol shows proper deference to any attorney-client or work product privileges while allowing the government’s investigation to proceed. Third, Ingram’s proposed procedure could disrupt the normal functioning of the grand jury as Ingram would have access to records, being reviewed by the grand jury, which he would not normally be entitled to review until after an indictment was returned.
Finally, the Court notes that, as other U.S. District Courts have stated, this decision “is based upon the expectation and presumption that the Government’s privilege team and the trial prosecutors will conduct themselves with integrity.” See Taylor, 2010 WL 2924414, at *1; In re Search of 5444 Westheimer Road, 2006 WL 1881370, at *3; Grant, 2004 WL 1171258, at *3.
Accordingly,
IT IS ORDERED that the motion is GRANTED and that the government’s proposed filter team protocol is APPROVED.
IT IS FURTHER ORDERED that Ingram’s attorneys shall file under seal suggested additional search terms for retrieving the attorney e-mails no later than Monday, April 16, 2012, at 5:00 p.m.
IT IS FURTHER ORDERED that AUSA Michael McMahon of the Eastern District of Louisiana shall serve as the filter AUSA to review the attorney e-mails as set forth in the approved filter team protocol.
IT IS FURTHER ORDERED that the government shall employ the approved filter team protocol when reviewing all evidence seized from both bayingram@yahoo. com and [email protected].
IT IS FURTHER ORDERED that this order be SEALED.
IT IS FURTHER ORDERED that the Clerk’s Office shall serve copies of this order on Lance Unglesby, Shaun Clarke and David Isaak, counsel for Ingram, and Assistant U.S. Attorneys Matthew Chester and Eileen Gleason, counsel for the government.
. R. Doc. No. 16.
. Such evidence includes the categories of documents retrieved from bayingram@yahoo. com and [email protected] as set forth in Special Agent Robert W. Blythe's declaration (R. Doc. No. 16, pp. 11-12) attached to the government’s motion.
. The opposition memorandum was also filed on behalf of Southeast Recovery Group, LLC ("Southeast”). For the sake of simplicity, the Court only refers to Ingram throughout this order. The Court recognizes and underscores that arguments asserted on Ingram's behalf were also asserted on behalf of Southeast.
.Ingram admits that [email protected] is his e-mail account, but explicitly "does not concede that [email protected] is his email account.” R. Doc. No. 19, pp. 1-2. Accordingly, the government argues that "Ingram has disclaimed any claim of privilege with respect to these e-mails” and requests that the Court "fashion an order that permits the United States to immediately begin reviewing these e-mails.” R. Doc. No. 24, p. 7 n. 1. As set forth in this order, the Court grants the government's motion subject to the condition that it must employ the proposed filter team protocol when reviewing evidence seized from both [email protected] and jeryaldinil [email protected].
. R. Doc. Nos. 19 and 27.
. Southeast Recovery Group, L.L.C. v. BP America, Inc., Civil Action No. 11-823.
. No. 11-823, R. Doc. No. 53-1, p. 1.
. No. 11-823, R. Doc. No. 1, ¶ 5.
. No. 11-823, R. Doc. No. 1, ¶¶ 16-7.
. No. 11-823, R. Doc. No. 1, ¶ 10.
. No. 11-823, R. Doc. No. 1, ¶ 16.
. No. 11-823, R. Doc. No. 53-1, p. 3. BP answered Southeast's complaint on July 13, 2011. In its answer, BP alleged that Southeast “submitted fraudulent invoices to BP for nearly 400 hours of fictitious flight time. Upon information and belief, Southeast’s misrepresentations were intentional and made to deceive BP.” R. Doc. No. 11, ¶¶ 4-9. BP also asserted counterclaims for fraud, violations of the Louisiana Unfair Trade Practices and Consumer Protection Act and conversion or, in the alternative, that Southeast was obligated to restore payments to BP for services which were not provided but for which Southeast received compensation. R. Doc. No. 11, ¶¶ 10-26.
. No. 11-823, R. Doc. No. 53-1, p. 1.
. The parties consented to proceed before the U.S. Magistrate Judge. No. 11-823, R. Doc. No. 68.
. No. 11-823, R. Doc. Nos. 75 and 76.
. R. Doc. No. 1-1, p. 14.
. R. Doc. No. 24, p. 2.
. R. Doc. No. 24, p. 1.
. The warrant authorized the seizure of “All email,” "Histories,” "Buddy lists,” "Profiles,” "Subscriber information,” "Method(s) of payment,” and "Detailed billings records (log on and log off times)” covering a two-year period. R. Doc. No. 16, pp. 10-11.
. R. Doc. No. 16, p. 11.
. R. Doc. No. 16, p. 11.
. R. Doc. No. 16, p. 2.
. R. Doc. No. 16, p. 2.
. R. Doc. No. 16, pp. 14-17.
. R. Doc. No. 16, pp. 14-16. The government suggests that the Court consider permitting Ingram’s attorneys to propose additional or different search terms that the agent shall use to retrieve the attorney e-mails. As set forth in this order, the Court grants the government's motion subject to the condition that Ingram’s attorneys may submit additional search terms, if Ingram chooses to exercise this right, no later than Monday, April 16, 2012, at 5:00 p.m.
. R. Doc. No. 16, p. 16. The government proposes that AUSA Michael McMahon ("McMahon”) of the Eastern District of Louisiana serve as the filter AUSA. McMahon is not assigned to the financial crimes unit, the unit pursuing Ingram’s criminal investigation. R. Doc. No. 16, p. 3.
. R. Doc. No. 16, p. 16.
. R. Doc. No. 16, p. 16.
. R. Doc. No. 16, p. 16. If the case agent locates a “non-attorney e-mail” during the investigation that appears to contain privileged material, such e-mail shall be referred to the filter AUSA and handled in accordance with the same procedure. R. Doc. No. 16, p. 17.
. R. Doc. No. 19, p. 2.
. R. Doc. No. 19, p. 4.
. R. Doc. No. 19, p. 4.
. R. Doc. No. 19, p. 4.
. R. Doc. No. 19, p. 4.
. R. Doc. No. 19, p. 4.
. U.S. v. Search of Law Office, Residence, and Storage Unit Alan Brown, 341 F.3d 404 (5th Cir. 2003), vacated a district court's order granting a motion for return of documents. Though the facts of In re Search of Law Office indicate that the government sought to review the seized documents pursuant to a "taint team” procedure similar to the government's proposed protocol in this case, the Fifth Circuit never addressed the propriety of such procedure. Id. at 407.
. R. Doc. No. 19, p. 2 (quoting In re Grand Jury Subpoenas, 454 F.3d at 523).
Reference
- Full Case Name
- In re Investigation of Bay INGRAM
- Cited By
- 3 cases
- Status
- Published