United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER 
S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE.
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.
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.
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,  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.
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.
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.
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.
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).
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
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
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.”))
Court will review the emails in light of the law stated
Grand Jury Subpoenas (Exhibits 12-14, 20)
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).
emails are not privileged as they contain no request for nor
give any legal advice. Likewise, they contain no privileged
Press inquiries and newspaper article (Exhibits 5, 6, 16,
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
Scheduling phone calls (Exhibits 17, 24, 26)
emails relate to scheduling phone calls between Mr. Snyder
and Mr. Kirsch. These are not privileged emails.
SRC's corporate status (Exhibits 15, 22)
Kirsch emailed Mr. Snyder with a subject line, “Is SRC
an S Corp?” 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.
Emails copied to Joseph Calhoun and Amanda Lakie (Exhibits 1,
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. Calhoun responded the next
day at which time Mr. Snyder added Lakie 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.
Fraternal Order of Police (Exhibits 23, 27)
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. ...