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United States v. Snyder

United States District Court, N.D. Indiana, Hammond Division

September 27, 2018

James Snyder, Defendant.

          OPINION AND ORDER [1]


         Writing to Corinthians, Apostle Paul cautioned: “'Everything is lawful,' but not everything is beneficial. ‘Everything is lawful,' but not everything builds up.” 1 Cor. 10:23 (New American Bible). And so it is in this case: while in obtaining and screening Defendant Snyder's emails, the government remained (largely) within the bounds of the law, its tactics--given that Mr. Snyder's attorney, Thomas Kirsch, had a good reputation and was cooperative--created a potential for violating Mr. Snyder's right to a fair. What the government did, it could do: the law is in its favor, even if the prudence of its actions can be questioned.

         In filtering out emails that contained privileged attorney-client communications, the government employed a process where the only check against privileged information crossing over “the Chinese Wall” was the integrity of its attorneys and the FBI agents working on this case. To be sure, there's nothing to suggest that the agents involved in the case improperly handled Mr. Snyder's emails or that the agent in charge was peaking behind the curtain of the privilege. However, any process that leaves government agents unchecked is problematic. That is, while Special Agent Eric Field appears to be an honest man, will every other agent in his situation also be honest? Likewise, although the trial team consists of two attorneys of impeccable integrity, the government, with its almost infinite resources, must be kept in check, because the temptation to skirt the safeguards of the attorney-client privilege is ever-present and next attorneys may not be as conscientious as the current set.


         Mr. Snyder claims that the government violated his Fourth, Fifth, and Sixth amendment rights when they seized his work and personal emails pursuant to a warrant. In particular, Mr. Snyder contends that the government knew that, at the time the warrant was to be executed, he had already retained counsel, Thomas Kirsch, [2] to assist him in dissuading the government from filing charges, and that the government knew that a broad sweep of his emails would inevitably seize privileged communications with his attorney. Furthermore, Mr. Snyder accuses the government of failing to set up a process that would protect privileged emails from reaching the trial team attorneys and agents. Mr. Snyder points to over forty emails that he insists are privileged and yet were not shielded from the trial team. He claims that the government was able to glean information from those emails that gave it an unfair advantage, prejudicing him to the point of no return. Mr. Snyder asks that the Court dismiss the indictment as a sanction for government's violations or, in the alternative, remove the prosecution team.

         The government maintains that it's seizure of emails was appropriate, the three-tier review process to prevent privileged emails from reaching the trial team worked (for the most part), the emails that Mr. Snyder challenges are not privileged (again, for the most part) and, in any case, Mr. Snyder has suffered no undue prejudice.

         The parties have filed multiple and voluminous briefs on the issues before the Court, and the Court held evidentiary hearings and oral arguments. The Court even conducted an ex parte hearing with Mr. Snyder's counsel. Through it all, what has become clear is that, with the exception emails containing QuickBooks data, the government trial team is not in possession of privileged materials and that the privileged financial data has not unduly prejudiced Mr. Snyder. Thus, while the Court finds no fault with the taint team process, even if the process had been faulty as Mr. Snyder argues, no error has been introduced that would necessitate either dismissal of this case or recusal of the trial team.


         Before delving into Constitutional questions, the Court will first address the challenged emails to determine if any of them are privileged under the attorney-client privilege doctrine.

         The attorney-client privilege is carefully guarded by the Courts but its violation does not rise to a violation of a constitutional right; rather, it remains an evidentiary rule. See United States v. White, 970 F.2d 328, 336 (7th Cir. 1992) (“The attorney-client privilege is a testimonial privilege. Consequently, so long as no evidence stemming from the breach of the privilege is introduced at trial, no prejudice results.”). The privilege protects communications between attorney and client that are conducted in confidence and for the purpose of seeking or providing legal assistance to the client. See United States v. BDO Seidman, 492 F.3d 806, 815 (7th Cir. 2007). The knowing disclosure to a third party of an otherwise privileged communication eliminates the privilege. See In re Pebsworth, 705 F.2d 261, 263 (7th Cir. 1983). Likewise, there's no privilege for statements made to one's attorney in the presence of a third party. See Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007). “The party seeking to invoke privilege bears the burden of proving all its essential elements.” United States v. Evans 113 F.3d 1457, 1461 (7th Cir. 1997).

         The attorney-client privilege extends to confidential communications passing from one party to the attorney of the other party or vice versa for a common purpose related to the defense of both. See Evans, 113 F.3d at 1467). The joint defense doctrine applies so long as the attorneys “engage in a common legal enterprise.” United States v. Keplinger, 776 F.2d 678, 701 (7th Cir. 1985).

         An attorney's agents--such as paralegals, investigators, secretaries, etc.--are also within the realm of the privilege if they are engaged to assist the attorney in providing legal services for the client. The same does not extend to a defendant's agents.

         In addition to privileged communications, materials prepared by attorneys in anticipation of litigation are also protected from the eyes of the government. This is known as the work-product doctrine and it “shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.” United States v. Nobles, 422 U.S. 225, 238 (1974). The work-product doctrine also protects the work prepared by the attorney's agents. “As with the attorney-client privilege, documents that are not primarily legal in nature are not privileged under the work product doctrine.” RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 217 (N.D. Ill. 2013) (citing Loctite Corp. v. Fel-Pro, Inc., 667 F.2d 577, 582 (7th Cir.1981) (“Only where the document is primarily concerned with legal assistance does it come within [attorney-client or work product] privileges.”)). “[T]he work-product doctrine is intended to guard only against divulging the attorney's legal impressions and strategies. The doctrine cannot be used to protect the underlying facts found within work-product.” United States v. Dean Foods Co., 2010 WL 3980185, at *2 (E.D. Wis. Oct. 8, 2010) (citing Hickman v. Taylor, 329 U.S. 495, 507 (1947) (“Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.”))

         The Court will review the emails in light of the law stated above.

         A. Grand Jury Subpoenas (Exhibits 12-14, 20)

         The day Mr. Snyder received multiple grand jury subpoenas he retained Mr. Kirsch as his counsel and emailed him copies of the subpoenas (Exhibit 13). Mr. Kirsch immediately responded confirming his receipt of the email (Exhibit 12). Several months later, Mr. Snyder retransmitted the same email to Mr. Kirsch “so it is fresh” (Exhibit 14) and Mr. Kirsch emailed Mr. Snyder two subpoenas (Exhibit 20).

         These emails are not privileged as they contain no request for nor give any legal advice. Likewise, they contain no privileged materials.

         B. Press inquiries and newspaper article (Exhibits 5, 6, 16, 19)

         Several times, when Mr. Snyder received inquiries from the press, he forwarded them to Mr. Kirsch without discussion. He also forwarded to Kirsch a newspaper article. These emails are not privileged.

         C. Scheduling phone calls (Exhibits 17, 24, 26)

         Three emails relate to scheduling phone calls between Mr. Snyder and Mr. Kirsch. These are not privileged emails.

         D. SRC's corporate status (Exhibits 15, 22)

         Mr. Kirsch emailed Mr. Snyder with a subject line, “Is SRC an S Corp?”[3] Mr. Snyder responded the same day with one line: “Just confirmed at SOS website that it is LLC thanks.” Mr. Kirsch's request for publicly available information is not privileged nor is Mr. Snyder's response that is based on that publicly available information. The emails contain neither legal advice nor a request for such advice.

         E. Emails copied to Joseph Calhoun and Amanda Lakie (Exhibits 1, 2)

         The government agrees that Mr. Snyder's October 21, 2014, email to Mr. Kirsch and his other attorney, Mr. Dogan, was privileged. But Mr. Snyder forfeited that privilege when he forwarded the same email to Calhoun.[4] Calhoun responded the next day at which time Mr. Snyder added Lakie[5] to the chain. Mr. Kirsch did not represent either Calhoun or Lakie, nor is there a joint defense between them and Mr. Snyder. Moreover, although she was Mr. Snyder's administrative assistant, Lakie wasn't Mr. Kirsch's agent so as to create a privileged relation with Mr. Snyder.

         F. Fraternal Order of Police (Exhibits 23, 27)

         Mr. Snyder emailed Kirsch the meeting minutes of the Fraternal Order of Police. The meeting minutes themselves are not privileged and the emails contain no request for legal advice. There's no basis here for Mr. ...

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