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Anyone know anything about the "lawsuit entitled First Atlantic Bank et. al. v. Emeka Offor"? I can't find anything on PACER and can't figure out why.
Ahh, now I see it.
Kobi, I'm hoping you can help me understand this a little better. I keep getting stuck on "who" could be indicted. As I understand it, individuals are charged for their actions, not the company they represent.
And, imo, as I've stated previously, there's no way it could be the current employees who've been there about 6 months. So, I'm not sure what this means to the company.
From a link Mongo posted previously, re: FCPA investigations, individuals were indicted and in one of the cases the company was charged fines.
Since it seems you know your way around the legal system, can you help me understand the potential impact on the company if there is evidence of FCPA violations? tia.
Case 4:06-mc-00238 Document 1-3 Filed 06/09/2006 Page 1 of 5
And, title is "Proposed Order". So those who suggested that this order had not been "signed, sealed and delivered", imo, are correct.
Dadd, and thank you for the website and all the work you do to keep it up to date.
Sidenote: I couldn't find a place on your site to "contact" you other than commentary. You may want to consider adding.
And, for all, I've been glad to be able to give something back to this board. There's so much good information posted here regularly that I'm very appreciative of...
Anything?
The address is correct - it took along time to go out from me so hopefully it's just the size causing the delay. I'm sure you know this but wanted to throw it out there, just in case, check Junk mail, too.
Ok, you should have it. Let me know if not.
LOL! I just searched your previous posts and found it. It's still "sending" but you should receive it pretty quick.
I have a couple of the documents but I need Dadd's email. I can't find it on his site. Dadd, if you're here can you post? Otherwise, anyone else have it? tia
Here's beginning of posts re: Active X. Maybe this will help.
Posted by: PatD100
In reply to: IH Admin [Matt] who wrote msg# 66030 Date:4/17/2006 12:08:48 PM
Post #of 68135
Matt, Tech Help... PLEASE! Everything works fine on my IHUB but now all of a sudden when I click on FAVORITES a pop up appears saying I need to run Active X to view.. Click here to run. When I do it closes my whole window and I have to reopen . Don't / Can't figure out what happened but need my favorites. PM if possible Thanks Pat D
I seem to remember the Active X having something to do with automatic updates for your computer. MS had an update that was causing this to occur. If my memory serves me, it was Susie who was experiencing this and she eventually fixed it.
This was filed by ERHC. No government documents have been filed because they are sealed. ERHC's filings are not.
And, to all who've suggested ways to get documents to Dadd, I'm not really computer savvy but will try throughout the weekend.
Nope, I don't get "save target as" and I tried "file" "send" to my email (to see if I could send to Dadd) and it won't. Any other suggestions? Anyone?
So far all of the "exhibits" have been scanned in. I have no idea how to copy and post these.
If anyone wants to see them for themselves, Pacer is free until you start viewing documemts. Then I think it's about .10/page. Here's link:
http://pacer.uspci.uscourts.gov/cgi-bin/menu.pl?puid=01150496240
If anyone can tell me how to copy/paste a scanned image onto ihub, I'd be willing to try.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
In The Matter Of The Search Of 5444
Westheimer Road, Suite 1570, Houston
Texas on May 4, 2006
§
§
§
§
§
§
§
§
§
Case No.
ORDER
Having considered the Motion For Return Of Property, to Enjoin Government Review of
Seized Documents and Computer Images, and to Unseal Affidavit in Support of Search Warrant,
the Response of the United States, and the Reply of Movants,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows:
1. The United States is enjoined from review of seized ERHC material, pending
final judicial determination of a privilege review procedure;
2. No later than 10 days from the date of this Order, the United States shall allow
ERHC to obtain a copy set of all of its seized documents currently in the
Government’s possession;
3. No later than 10 days from the date of this Order, the United States shall return all
facially privileged paper documents to ERHC’s counsel for review;
4. No later than 45 days after receipt of all facially privileged paper documents from
the United States, ERHC shall have reviewed all facially privileged paper
Case 4:06-mc-00238 Document 1-3 Filed 06/09/2006 Page 1 of 5
documents seized by the Government and shall produce to the Government all
non-privileged documents;
5. No later than 45 days after receiving all facially privileged paper documents from
the United States, ERHC shall produce a privilege log setting forth the following
information for any documents withheld based upon an assertion of privilege: (a)
the date of the document; (b) the author(s) of the document; (c) the recipients of
the document; (d) the nature of the privilege asserted; and (e) a description of the
document;
6. No later than 10 days from the date of this Order, the United States shall return all
imaged computer hard drives and other electronic data to ERHC’s counsel for
review;
7. No later than 45 days after receipt of all imaged computer hard drives and other
electronic data from the United States, ERHC shall produce to the Government all
non-privileged documents responsive to the Government’s search warrant at
Schedule B;
8. No later than 45 days after receipt of all imaged computer hard drives and other
electronic data from the United States ERHC shall produce a privilege log setting
forth the following information for any material withheld based upon an assertion
of privilege: (a) the date of the document; (b) the author(s) of the document; (c)
the recipients of the document; (d) the nature of the privilege asserted; and (e) a
description of the document;
9. As of the date of this Order, the Court will appoint a special master to review all
remaining seized ERHC material currently in the Government’s possession, and
Case 4:06-mc-00238 Document 1-3 Filed 06/09/2006 Page 2 of 5
within a time period established by the special master, any privileged materials
reviewed by the special master shall be returned to ERHC and logged on a
privilege log to be provided to the Government; and
10. No later than 10 days from the date of this Order, the United States shall provide
ERHC’s counsel with a copy of the Affidavit filed in support of the Search
Warrant executed on ERHC’s premises on May 4, 2006;
So ORDERED in Houston, Texas, this ___ day of _____, 2006
______________________________
United States Judge
cc:
All Counsel of Record
Donald J. DeGabrielle, Jr.
United States Attorney’s Office
Southern District of Texas
P.O. Box 61129
Houston, TX 77208
Mark F. Mendelson
Mary Kit Dimke
Department of Justice
Criminal Fraud Division
1400 New York Avenue, NW
Washington, DC 20005
___________________
Gregory V. Brown
Akin Gump Strauss Hauer & Feld, LLP
1111 Louisiana Street
44th Floor
Houston, TX 77002-5200
Michael J. Madigan
Case 4:06-mc-00238 Document 1-3 Filed 06/09/2006 Page 3 of 5
These are the additional documents available. It's time for family right now for me, but if anyone sees anything they think is important, let me know and I'll get it.
3 Proposed Order 5 pages
4 Exhibit Exhibit A 8 pages
5 Exhibit Exhibit B 15 pages
6 Exhibit Exhibit C 5 pages
7 Exhibit Exhibit D 8 pages
8 Exhibit Exhibit E 3 pages
9 Pro Hac Vice Applications 6 pages
More footnotes:
5 The particularity requirement of the Fourth Amendment mandates that warrants “particularly describe the
place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. This requirement is intended
to prevent “general exploratory rummaging in a person’s belongings.” Coolidge v. New Hampshire, 403 U.S. 443,
467 (1971); Gurleski v. United States, 405 F.2d 253, 258 (5th Cir. 1968) (“[The search] must not be a general
exploratory search through which the officers merely hope to discover evidence of wrong-doing.”). Given that
virtually every single ERHC document was seized and all ERHC computer hard drives were completely and totally
imaged, there is good reason to believe that the Fourth Amendment’s particularity requirement was ignored. “[T]he
warrant must describe – in a particularity congruent with the supporting facts – the place to be searched and the
things to be seized.” United States v. Carlson, 236 F. Supp. 2d 686, 688 (S.D. Tex. 2002) (citations omitted).
Therefore, the determination of whether the warrant’s specifications are “congruent with the supporting facts” can
only be made by reviewing the basis asserted in the affidavit for probable cause. Only a review of the Griffin
Affidavit will establish what, if anything, the Government presented to the Magistrate Judge to justify such
draconian measures.
Here are footnotes:
1 The exception to this production back to the Government would be any documents deemed outside the
scope of the search warrant, as revealed through an examination of the sealed affidavit purporting to provide
probable cause. As will be discussed supra, ERHC must examine the sealed affidavit in order to fully determine whether, and to what extent, the wholesale imaging of all computers at ERHC office’s exceeded the scope of the warrant. Any such data or documents would be submitted to the Court for review and determination as to scope.
2 As a result of the sealed Griffin Affidavit, ERHC is requesting only the return of privileged documents
under Rule 41 at this time. ERHC reserves the right to seek the return of additional documents after it reviews the
Griffin Affidavit.
3 See United States v. Oliver, 2000 WL 263954, at *2 (4th Cir. Mar. 9, 2000); In re Search of the Offices of
Stephen Amato, No 05-MJ-05-B, 2005 U.S. Dist. LEXIS 6870, at *11 (D. Me. Apr. 14, 2005), aff’d 2005 U.S. Dist.
LEXIS 17098 (D. Me. Aug. 15, 2005); In the Matter of the Search of 8420 Ocean Gateway, 353 F. Supp. 2d 577 (D.
Md. 2004), aff’d 353 F. Supp. 2d 584, 588 (D. Md. 2004); In re Search Warrant for 2934 Anderson Morris Rd., 48
F. Supp. 2d 1082, 1083 (N.D. Ohio 1999); In re Search of Up N. Plastics, 940 F. Supp. 229, 232 (D. Minn. 1996);
In re Search Warrants Issued Aug. 29, 1994, 889 F. Supp. 296, 301 (S.D. Ohio 1995); Sloan v. Sprouse, 968 P.2d
1254, 1258 (Okla. Crim. App. 1998).
4 See also Amato, 2005 U.S. Dist. LEXIS 6870, at *11 (D. Me. Aug. 15, 2005) (“The Fourth Amendment
commands that warrants not issue save upon probable cause . . . . That language implies a right, in a person whose
property has been subjected to search and/or seizure pursuant to a warrant, to challenge whether the warrant was in
fact predicated on probable cause. That, in turn, implies a right to view the underlying materials that purportedly
established probable cause for the search.”); In re Search of Up N. Plastics, 940 F. Supp. at 232 (D. Minn.) (“This court concludes that a person whose property has been seized pursuant to a search warrant has a right under the
warrant clause of the Fourth Amendment to inspect and copy the affidavit upon which the warrant was issued.”).
Agreed, I have to read the blog to see exactly what is said but it seemed as though, from comments being made here, that it was clearly not connected to Jefferson. So far, I haven't seen that. Reviewing the footnotes now.
Amj, I haven't read the blog but as soon as someone posted that it was filed in court I checked Pacer. But all the comments on here were saying, according to Joe, the warrant had nothing to do with Jefferson.
From my readings thus far, it seems that ERHC has no idea why the warrant was issued and that's a big part of this filing - they want it unsealed.
Absolutely. eom.
That's it, I did not include "footnotes" as I thought it would be even more difficult to follow. There are also "exhibits". If as I am reading through the document, I think they are significant, I'll get and post. I'm not getting them now since there is a (nominal) fee for each page you view. And, unfortunately, I'm not experienced enough with the court system that I often have no idea what I'm going to be viewing prior to opening it. It can add up if I just keep opening 10 page documents and drives me crazy when they are of no significance. Happy reading, all!
It is ERHC, in fact, that has a compelling need – to examine the affidavit that justified an
unannounced and unconsented search by warrant of its place of business. Beyond the obvious
intrusion into the attorney-client privilege, which is discussed supra, ERHC is entitled under the
Fourth Amendment to determine whether or not the scope of the seizure exceeded whatever may
have been justified by the probably cause affidavit, constituting a violation of the Fourth
Amendment’s particularity requirement.5 Absent the opportunity to review the affidavit, ERHC
lacks the ability to exercise this constitutional right. The only way for ERHC to make such a
determination, however, is to review the affidavit.
2. Less Restrictive Alternatives Are Available
Although counsel for ERHC suggested compromise measures such as redacting the
affidavit or limiting disclosure of the affidavit to ERHC and its counsel, the Government has
refused to consider less restrictive alternatives and has signaled its intention to keep the affidavit
under seal for several months, at a minimum. The Government’s refusal notwithstanding, this
Court has a variety of options in fashioning less restrictive alternatives.
For example, the Court can order disclosure be made only to ERHC and its counsel, with
appropriate confidentiality restrictions. See Amato, 2005 U.S. Dist. LEXIS 6870, at *11, n.7 (noting that defense counsel and the government agreed that if the Court ordered the affidavit
unsealed – which it did – disclosure would be made only to the defendant and his attorneys).
This court can also redact the affidavit to protect the identities of any cooperating witnesses. See
id. at *32 (redacting affidavit to protect patient and witness names); In re Search Warrants Issued
on April 26, 2004, 353 F. Supp. 2d at 592 (ordering production of redacted affidavit); In re
Search Warrants Issued August 29, 1995, 889 F. Supp. at 302 (ordering government to submit
redacted affidavit). Thus, in light of the lack of a compelling reason for withholding the
affidavit, and ERHC’s compelling need for disclosure, ERHC asks that this Court exercise its
power to unseal the affidavit in the interest of justice and fairness.
CONCLUSION
For the foregoing reasons, ERHC’s Motion to For Return of Property, To Enjoin
Government Review of Seized Documents and Computer Images Pending Judicial Review, and
to Unseal the Search Warrant Affidavit should be granted.
DATED: June 9, 2006
Respectfully submitted,
/s/
GREGORY V. BROWN
State Bar No. 00793409
Federal I.D. No. 21038
AKIN GUMP STRAUSS HAUER & FELD, LLP
No Fifth Circuit opinion, or district court decision within
the circuit, has been issued since addressing this issue, which remains an open one in the Fifth
Circuit. As a result, this Court is not bound by this opinion. Virtually every court to address this
issues head on in the intervening years has rejected the Seventh Circuit’s conclusory reasoning.
Accordingly, in light of the Fourth Amendment issues at stake and the support of the
overwhelming majority of Fourth Amendment caselaw, the Court should not accept the
Government’s blanket refusal to unseal the affidavit purporting to provide probable cause against
ERHC.
B. This Court Should Require the Government to Demonstrate a
Compelling Governmental Interest and the Unavailability of Less
Restrictive Measures to Justify Keeping the Affidavit Under Seal
Here, the Government has not, and cannot, demonstrate a compelling need to prevent
disclosure of the affidavit to ERHC. The vast majority of Courts have rejected a blanket refusal
to unseal or redact an affidavit after the search has been conducted, instead recognizing the need
to balance the rights of the subject of a search warrant against the interests of law enforcement.
In striking this balance, the burden is on the Government to demonstrate that “precluding access
is essential to preserve higher values and is narrowly tailored to serve that interest.” Oliver, 2000
WL 263954, at *4. The right of access may be denied only where the Government demonstrates
“(1) that a compelling governmental interest requires the materials to be kept under seal and (2)
there is no less restrictive means, such as redaction, available.” Id. (citing In re Search Warrants Issued Aug. 29, 1994, 889 F. Supp. at 299); see also Amato, 2005 U.S. Dist. LEXIS 6870, at *23;
In re Search Warrants Issued on Apr. 26, 2004, 353 F. Supp. at 591; In re Search of Up N.
Plastics, 940 F. Supp. at 232-33. The Court should similarly require the Government here to
demonstrate a compelling interest and the unavailability of less restrictive alternatives.
1. There Is No Compelling Need to Withhold From
ERHC the Contents of the Griffin Affidavit
The Government has not put forth any justification for keeping the affidavit under seal
other than the need to maintain secrecy during an ongoing investigation. Moreover, the
Government has indicated that it will be months before it might even consider unsealing the
affidavit. This is precisely the undefined and overbroad rationale that courts have rejected,
recognizing that the Government’s position would justify placing many or all search warrant
affidavits under seal while depriving search subjects like ERHC of the right to challenge
probable cause until whatever time the Government decided to unseal the affidavit.
For example, In re Search of Up North Plastics, Inc. involved an antitrust investigation in
which the Government executed a search warrant and filed under seal the affidavit in support of
the warrant. 940 F. Supp. at 230. The subject of the search contested the under seal filing and
the Government claimed there was a compelling need “because disclosure would harm an
investigation into criminal activities.” Id. at 234. The Court ruled that the Government’s
contentions amounted to nothing more than “conclusory allegations” and failed to make a
“specific showing” of compelling need because the purported justifications would “require the
sealing of search warrants in nearly every criminal investigation.” Id.; see also Baltimore Sun
Company v. Goetz, 886 F.2d 60, 66 (4th Cir. 1989) (overruling district court’s decision to seal
affidavit and rejecting government’s “compelling need” argument because “conclusory assertions
are insufficient to allow review; specificity is required”).
As stated cogently in a recent Maryland opinion where the court ordered
the unsealing of an affidavit connected to a search warrant:
By its plain words, the Amendment insulates the public from ‘unreasonable’ intrusions
and sets forth the specific requirement that search warrants be supported by probable
cause. Implicit in that language is the public’s right to challenge both the reasonableness
of the search and the degree to which the warrant was supported by probable cause.
Without the right of access to the affidavit on which the search warrant was based, the
search subject could never make such a challenge.
In re Search Warrants Issued on Apr. 26, 2004, 353 F. Supp. 2d at 588 (emphasis added).
Similarly, in United States v. Oliver, another case involving the use of a sealed search warrant
affidavit, the Fourth Circuit recognized that the Fourth Amendment provided defendants with the
right to examine affidavits filed in support of such warrants unless “precluding access is essential
to preserve higher values and is narrowly tailored to serve that interest.” 2000 WL 263954, at
*2. And as stated by the Southern District of Ohio, in ordering the unsealing of an affidavit,
“[t]he Fourth Amendment right to be free of unreasonable searches and seizures includes the
right to examine the affidavit that supports a warrant after the search has been conducted and a
return has been filed with the Court pursuant to Fed. P. Crim. P. 41.” In re Search Warrants
Issued Aug. 29, 1994, 889 F. Supp. at 301. Against the backdrop of the ever growing strong consensus among courts nationwide,
one relatively old, and poorly reasoned Seventh Circuit opinion stands alone in holding that the
Government’s blanket refusal to unseal an affidavit purporting to provide probable cause does
not infringe on Fourth Amendment rights. See In re EyeCare Physicians, 100 F.3d 514 (7th Cir.
1996). In a two-sentence statement, the court in EyeCare held that the lack of access to a sealed
search warrant affidavit did not implicate the Fourth Amendment. Id. at 517. The Seventh
Circuit’s conclusory reasoning has been analyzed, and discredited, and rejected by subsequent
courts because depriving search subjects of the right to view an affidavit on which probable
cause is based denies citizens of the protections upon which the Fourth Amendment is
predicated. See, e.g., In the Matter of the Search of 8420 Ocean Gateway, 353 F. Supp. 2d at 581
(“Recognizing only a common law right of access, the [Seventh Circuit] appeared to place the
burden on the target to demonstrate its compelling need . . . rather than on the government . . . .
This appears incongruous with the functioning of a democracy where openness must be the rule,
secrecy the carefully limited exception.”); Amato, 2005 U.S. Dist. LEXIS 6870, at *14-15, n.10
(disagreeing with Seventh Circuit); Sloan v. Sprouse, 968 P.2d at 1258 (Okla. Crim. App.)
(disagreeing with Seventh Circuit).
One year after the Eyecare opinion, the Fifth Circuit was confronted with a situation
where a District Court had issued a conditional suppression order, sua sponte, requiring that the
Government produce a sealed affidavit that had been filed with another court, despite the fact
that defendants never raised the issue before the District Court. In re Grand Jury Proceedings,
115 F.3d 1240, 1244 (5th Cir. 1997). The Fifth Circuit reversed the District Court’s sua sponte order with regard to the affidavit on procedural grounds and, in dictum, made a favorable
reference to Eyecare. In reversing the District Court's sua sponte order, however, the Fifth
Circuit clearly stated that “this court [the Fifth Circuit] has not yet determined whether the
issuance of a search warrant combined with a sealed affidavit constitutes a violation of the
Fourth Amendment . . . .” Id. at 1246.
Finally, the appointment of a special master will best ensure that the ERHC’s privilege is not
further invaded by the Government.
III. This Court Should Permit ERHC to Review the
Affidavit Filed in Support of the Search Warrant
Despite repeated requests from ERHC’s counsel, the Government refuses to unseal or
permit ERHC’s counsel to view – even for “attorneys eyes only” or in redacted form – the sealed
affidavit on which the executed search warrant was based. Instead, the Government merely
repeats its position that unsealing the affidavit would be premature because its investigation is
ongoing. This refusal to provide ERHC with the sole source of the Government’s purported
probable cause merely because its investigation is not yet complete deprives ERHC of the blanket refusal to unseal an affidavit violates the rights guaranteed to all citizens under the
Fourth Amendment.
protections provided by the Fourth Amendment.
Without examining the underlying document that purportedly provides probable cause for
the search warrant, it is impossible for ERHC to challenge whether the Government has
demonstrated probable cause in the first instance. Moreover, the Government’s conduct leaves
ERHC unable to determine whether the extremely broad wording and scope of the search
warrant itself satisfies the Fourth Amendment’s particularity requirement. Finally, without
access to the underlying affidavit, ERHC’s ability to assert its rights under Rule 41 of the Federal
Rules of Criminal Procedure and to seek appropriate judicial relief, including the return of
improperly seized property, is severely limited.2 Thus, ERHC respectfully petitions this Court
for an Order unsealing the affidavit.
A. The Fourth Amendment Protects a Party’s Right to Examine
an Affidavit Filed in Support of a Search Warrant
The Fourth Amendment protects ERHC’s right to examine the sealed affidavit. The
Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. The Supreme Court has recognized that the purpose of the warrant
requirement “is to provide the [search subject] with sufficient information to reassure him of the
entry’s legality.” Michigan v. Tyler, 436 U.S. 499, 508 (1978).
Although courts have the power to order affidavits sealed, “this is an extraordinary
action, and should be done only if the government shows a real possibility of harm.” 3A Charles
Alan Wright, Nancy J. King & Susan R. Klein, Federal Practice and Procedure § 672, at 332-33
(3d ed. 2004) (emphasis added); see also In re Search of the Offices and Storage Areas Utilized
by Stephen Amato, 2005 U.S. Dist. LEXIS 6870 (D. Me. Apr. 14, 2005); In re Search Warrants
Issued on April 26, 2004, 353 F. Supp. 2d 584, 589 (D. Md. 2004).
Here, the Government has provided no “real possibility of harm” to justify either the
continued sealing of the affidavit or the continued refusal to allow ERHC counsel to review even
an “attorneys eyes only” or redacted version of the affidavit. Indeed, the Government has not
stated any credible grounds for the continued secrecy of the affidavit. The Government’s desire
to control the investigation’s timing at the expense of ERHC’s rights does not suffice as “harm.”
It is now well-settled law that the Government’s current position of a blanket refusal of
access to the search warrant affidavit implicates the Fourth Amendment. The Fourth Circuit, as
well as district courts in four other circuits (First, Third, Sixth, and Eighth), have ruled that a
Thus, in light of its ability to demonstrate need under Rule 41(g), ERHC seeks the
immediate return of all potentially and facially privileged files identified on the Government’s
Evidence Receipt, including all imaged computer hard drives and electronic data.
2. For All Other Privileged Materials, the Court Should Appoint a
Special Master to Separate and Return to ERHC the Remaining
Privileged Documents and Computer Data
In addition to the immediate return under Rule 41(g) of ERHC’s wrongfully seized
privileged materials, the Court should appoint a special master to review all remaining seized
materials to review and return to ERHC any additional attorney-client privileged or attorney
work product privileged materials. The Court, as the source of the search warrant, has the power
to oversee the Government’s execution of the search and seizure of ERHC property, including
privileged materials. See Hunsucker, 497 F.2d at 32 n.3 (courts have the inherent authority to
oversee the conduct of its officers); see also In re Search Warrant for 14 Straight St., 117 F.R.D.
591, 594 (W.D. Mich. 1987) (“The government is in the possession of the documents solely by
virtue of the court’s order, and it is the court’s authority which defines the parameters of a search
. . . .”). Indeed, once a search is completed, a federal court has the “duty to ensure that the
intrusion created by its order is no greater than is justified by the government’s legitimate
investigation.” Id. One aspect of this duty is necessarily to ensure the proper observance by the
Government of the attorney-client privilege.
The appointment of a special master, or other neutral judicial officer, ensures fairness for
the review of additional ERHC privileged materials for a privilege review must not only be fair,
but also have the appearance of fairness. See United States v. Stewart, 02 Cr. 395, 2002 U.S.
Dist. LEXIS 10530, at *23 (S.D.N.Y. June 11, 2002) (“The appearance of fairness helps to
protect the public’s confidence in the administration of justice and the willingness of clients to consult with their attorneys.”). For that reason, the use of a special master is the procedure
favored by many courts considering the protection of privileged documents. See, e.g., Neill, 952
F. Supp. at 841 n.13 (“[T]he more traditional approach is to submit contested materials for in
camera review by a neutral and detached magistrate.”); In re Search Warrant for Law Offices,
153 F.R.D. at 159 (“[R]eliance on the implementation of a Chinese Wall, especially in the
context of a criminal prosecution, is highly questionable, and should be discouraged.”).
Here, a special master is in the best position to conduct a review of all seized material
remaining in the Government’s possession after the requested Court-ordered return to ERHC of
those materials on the Government’s Evidence Receipt that are clearly identified as likely
attorney work product or attorney-client communications. The special master could then conduct
an impartial review, and return any privileged material to ERHC, providing a privilege log to the
Government as necessary.
3. Alternatively, the Court Should Appoint a Special
Master to Conduct the Entire Privilege Review
If the Court does not order the immediate return of clearly identifiable privileged
materials, and those likely to contain such materials, the Court should appoint a special master to
conduct a privilege review on all of ERHC’s documents in the Government’s possession prior to
any review by the investigation attorneys and agents. All of the arguments set forth above for the
appointment of a special master over the use of a “taint team” are applicable here. As the issuer
of the search warrant, the Court has the equitable power to supervise the Government’s review of
materials seized under the warrant. See Hunsucker, 497 F.2d at 32. Additionally, Courts prefer
the appointment of a special master over government staffed “taint teams” because the special
master, as a neutral party, furthers the judicial policy of promoting the appearance of fairness.
See Neill, 952 F. Supp. at 841 n.14; In re Search Warrant for Law Offices, 153 F.R.D. at 59.
In re Search of Law Offices, 341 F.3d at 410
(quoting Hunsucker, 497 F.2d at 34-35). If the balance of these factors weighs in favor of the
movant, the court “should exercise its equitable jurisdiction to entertain the motion.” United
States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005); see also In re Search of Law Offices, 341
F.3d at 410.
First, as already described, the Government displayed a “callous disregard for
constitutional rights” during the seizure by refusing to segregate and return privileged files
identified by ERHC counsel during the execution of the warrant, and by refusing to put in place
any measures to prevent the seizure of privilege documents during its wholesale imaging of
entire ERHC computer hard drives and seizure virtually every single ERHC paper file. This
callous disregard continues with the Government’s refusal to allow ERHC counsel or a special
master to review and log privileged documents without the involvement of a Government “taint
team.”
Second, ERHC has an “interest in and need for the materials” seized. The Government
has deprived ERHC of virtually all of its business records. ERHC (1) owns the attorney-client
privileged communications, documents, and data, (2) holds the exclusive right to waive its
privilege, and (3) has need of the seized privileged materials to run its business. ERHC’s ability
to contract, maintain compliance, and otherwise do business in accordance with previously
obtained legal advice has been, and will continue to be, severely compromised by the
Government’s wholesale seizure.
Third, ERHC has been “irreparably harmed” by the Government’s continued refusal to
return the wrongfully seized and facially privileged attorney-client communications and attorney work product. Here, the government has seized all of ERHC’s privileged files and imaged all
computer and electronic data containing privileged communications without implementing any
safeguards to limit the intrusion. Such a seizure is the quintessential example of a government
intrusion that will chill candid, complete, and unrestrained attorney-client communications. See
United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997) (Any intrusion into the privilege
chills the “full and frank communication between lawyers and their clients” that is necessary to
“the broader public interests . . . of justice.”); see also United States v. Levy, 577 F.2d 200, 209
(3d Cir. 1978) (“Free two-way communication between client and attorney is essential if the
professional assistance guaranteed by the Sixth Amendment is to be meaningful.”).
Further, ERHC has been irreparably injured because the attorney-client privilege “is
clearly applicable in the search warrant context” and a governmental “invasion” of the privilege
“generates an irreparable injury to the possessor of the privilege.” See, e.g., In re Search of 636
South 66th Terrace, 835 F. Supp. at 1306. Accordingly, the seizure’s “invasion” of ERHC’s
privilege has generated the irreparable injury necessary to trigger the Court’s equitable
jurisdiction to order a just remedy.
Fourth, ERHC has “no other adequate remedy at law.” Absent the Court’s order returning
ERHC’s wrongfully seized and facially privileged materials – and providing for an appropriate
review mechanism allowing ERHC, not the Government, to assert the company’s privilege over
its attorney-client communications – there is no other remedy for ERHC. The Government is in
possession of the documents and data because of a search and seizure executed pursuant to a
warrant. A Rule 41(g) motion for return of property is the sole satisfactory remedy available
under the circumstances.
As shown by its own Evidence Receipt, the
Government has already seized numerous facially privileged materials after making no
provision to prevent the seizure of privileged material and after ignoring requests from ERHC’s
counsel to segregate facially privileged documents during the search and seizure. At the very
least, then, the Government has intentionally seized ERHC’s privileged materials.
Now, the Government insists on the continued possession of ERHC’s privileged materials
so that it can conduct its own timely review of those materials, rather than providing them back
to ERHC’s counsel or to an independent special master. That procedure is tantamount to
“tak[ing] matters” into its own hands and ignoring ERHC’s assertions of privilege. See Neill,
952 F. Supp. at 841. The Neill court explained:
Where the government chooses to take matters into its own hands rather than
using the more traditional alternatives of submitting disputed documents under
seal for in camera review by a neutral and detached magistrate or by court
appointed special masters, it bears the burden to rebut the presumption that the
tainted material was provided to the prosecution team.
Id. Further, where a “taint team” is used, the Government must demonstrate that “no privileged
information regarding trial strategy or otherwise has been communicated to the prosecutors [by
the taint team] and used to the defendant’s detriment.” Id.
As a result, the Government now has in its possession privileged communications, in
various forms, between ERHC and its counsel, as well as attorney work product. Because of this
intrusion, as well as the inherent unfairness that arises from “taint teams,” ERHC’s privilege
rights are in peril absent the Court’s intervention. C. The Court Chooses the Appropriate Procedure for Determining Privilege
1. The Court Is Empowered to Return Unlawfully Seized Privileged
Documents During the Pre-Indictment Stage
The Court can, and should, order the immediate return to ERHC of all seized facially
privileged paper and electronic materials because the materials were unlawfully seized. A
seizure that violates the attorney-client privilege and work product doctrine is unlawful. Under
the Federal Rules of Criminal Procedure, “[a] person aggrieved by an unlawful search and
seizure of property or by the deprivation of property may move for the property’s return.” Fed.
R. Crim. P. 41(g). Under Rule 41(g), therefore, the Court should either return to ERHC the
documents wrongfully seized by the Government, or impose reasonable conditions beyond those
of a “taint team” to protect improper and unlawful access to the property and to protect ERHC’s
privilege.
Indeed, the Court has broad equitable powers to fashion an appropriate remedy for the
wrongful deprivation of ERHC property. See Fed. R. Crim. P. 41(g); see also Soviero v. United
States, 967 F.2d 791, 793 (2d Cir. 1992); United States v. Martinson, 809 F.2d 1364, 1367-68
(9th Cir. 1987); In re Documents of Matthew Hale, 228 F.R.D. 621, 623-24 (N.D. Ill. 2005). The
Court’s power to order the return of privileged materials “derives from the inherent authority of
the court over those who are its officers.” In re Search of Law Offices, 341 F.3d 404, 409 (5th
Cir. 2003); Hunsucker v. Phinney, 497 F.2d 29, 30-31 (5th Cir. 1974) (same).
ERHC can demonstrate to the Court’s satisfaction all four factors of the test at issue in a
Rule 41(g) request for the return of seized property, namely that: (1) the government “in seizing
the property displayed a ‘callous disregard for . . . constitutional rights’”; (2) the movant “has an
individual interest in and need for the material whose return he seeks”; (3) the movant “would be irreparably injured by denial of the return of the property”; and (4) the movant has an “adequate
remedy at law for the redress of his grievance.”
United States v. Nobles, 422 U.S. 225, 238
(1975). Work product protection plays an even more vital role in a criminal investigation. Id.
(“Although the work product doctrine most frequently is asserted as a bar to discovery in civil
litigation, its role in assuring the proper functioning of the criminal justice system is even more
vital.”).
Given the Government’s unwillingness to return ERHC’s facially privileged documents,
time is of the essence to prevent the Government’s further invasion of the company’s rights. The
Government has already seized ERHC’s privileged documents and data, and has proposed that it,
through its own attorneys and agents, review this material and make a determination regarding
the existence and scope of ERHC’s privilege rights. Once the Government is allowed to invade
ERHC’s privilege in this manner, “any confidentiality of the communications involved may well
be lost, and the movant will be effectively denied the protection of the privilege.” In re Search of
636 South 66th Terrace, 835 F. Supp. 1304, 1306 (D. Kan. 1993). Indeed, the legal and public
policy significance of the attorney-client privilege rights at issue here is the reason that courts
“traditionally deem [these rights] worthy of maximum legal protection.” Haines v. Liggett
Group Inc., 975 F.2d 81, 90 (3d Cir. 1992).
Accordingly, ERHC asks the Court to enjoin the Government from further review of all
seized documents or data pending a Court-sanctioned review process to protect ERHC’s
privileged attorney-client communications and attorney work product. B. The Government’s Proposed Use of a “Taint Team” to
Unilaterally Review Documents or Records to Which Privilege
Is Claimed By ERHC Offends the Constitution
As stated, the Government has proposed a “taint team” to review ERHC’s paper
documents and imaged computer hard drives to determine whether communications, documents,
or electronic data are privileged attorney-client communications or attorney work product.
ERHC’s counsel has advised the Government that a “taint team” is untenable and unacceptable.
Instead, ERHC’s counsel has requested that the Government agree to either (1) the return of
seized facially privileged paper and electronic materials to ERHC’s counsel to allow it to review,
assert, and log privileged communications, documents, and data in a timely manner acceptable
to the Court, or (2) the appointment of a special master or other judicial officer, to conduct a
privilege review of all seized paper and electronic communications, documents, and data. To
date, the Government has refused to agree to ERHC’s proposals, insisting instead on its proposed
“taint team” process.
The Government’s “taint team” proposal ignores the well-settled principle that the
attorney-client privilege is ERHC’s alone to assert. Only ERHC, not a Government “taint team,”
is in a position to know information about the company or the company’s past and current
operations that would enable it to determine if a particular communication or document is
attorney-client privileged or attorney work product. To allow a Government “taint team” the
unilateral ability to stand in the place of ERHC and assert the company’s privilege rights on its
behalf is unacceptable.
Indeed, a “taint team” process under these conditions could constitute a per se intrusion
into the company’s constitutional right to the effective assistance of counsel because it would be
an intentional interference with ERHC’s attorney client privilege rights. See, e.g., Weatherford v. Bursey, 429 U.S. 545, 554-55 (1977) (stating that an intrusion on the attorney-client privilege
may result in a constitutional violation if privileged information is intentionally obtained and
used to the defendant’s detriment at trial)
Fourth, with respect to all imaged computer hard drives,
ERHC requests that the Court order the immediate return to ERHC or its undersigned counsel all
such imaged hard drives. ERHC’s counsel will then review and produce on a timely basis
acceptable to the Court responsive material from the imaged hard drives to the United States,
after all privileged materials have been separated and logged (or if necessary, lodged with the
Court).1 In the alternative, ERHC requests that the Court appoint a special master or neutral
magistrate to screen all paper and electronic materials, including imaged computer hard drives,
for any privileged materials. Fifth, ERHC requests that the Court unseal the affidavit purporting
to provide probable cause for the search warrant issued on May 3, 2006, and executed on May 4,
2006.
I. ERHC is Entitled to a Copy of All Seized Documents
As an initial matter, this Court should order the Government to immediately permit
ERHC to obtain a copy set of the documents seized. The Government's recent decision to
condition return of a copy set of the 118 boxes of documents upon ERHC's willingness to waive
its privilege objections and agree to a taint team is completely unreasonable and irreparably
harms ERHC. ERHC must have these documents to run its business and has offered to pay all
copying and scanning costs. See In re the Search of the Office of Ken Tylman, 245 F.3d 978, 980
(7th Cir. 2001) (ordering government to provide copies of seized documents to search subject);
In re Singh, 892 F. Supp. 1, 4 (D.D.C. 1995) (“[t]he government has made no argument that
providing copies of movant’s documents to him, at movant’s expense, would somehow thwart the progress of their ongoing investigation. Accordingly, and in keeping with the ‘spirit of
compromise’ embodied in the amended Rule 41(e), this Court finds that movant is entitled to
have copies made of all documents still in the government’s possession for movant’s use . . . .”);
In re Search Warrants for 14 Straight St., S.W., 117 F.R.D. 591 (W.D. Mich. 1987) (ordering
government to provide copies of seized documents where seizure had shut down entire business).
II. The Government Has Exceeded, and Threatens to Continue
Exceeding, Its Authority to the Detriment of ERHC’s Fundamental
Rights
A. The Government May Not Review Privileged Attorney-Client
Communications and Attorney Work Product
The Government’s intrusion into ERHC’s attorney-client privilege endangers ERHC’s
fundamental right to effective assistance of counsel and the right to a fair trial. The attorneyclient
privilege is “the oldest and most venerated of common law privileges of confidential
communications” and “serves important interests in our judicial system.” United States v.
Edwards, 303 F.3d 606, 618 (5th Cir. 2002); see also Upjohn Co. v. United States, 449 U.S. 383,
389 (1981). In Upjohn Co., the Supreme Court underscored the purpose and importance of the
privilege:
Its purpose is to encourage full and frank communication between attorneys and
their clients and thereby promote broader public interests in the observance of law
and administration of justice. The privilege recognizes that sound legal advice or
advocacy serves public ends and that such advice or advocacy depends upon the
lawyer being fully informed by the client.
Id. at 389. Indeed, the attorney-client privilege is the “key to the constitutional guarantees of the
right to effective assistance of counsel and a fair trial.” See Neill v. United States, 952 F. Supp.
834, 839 (D.D.C. 1997). Similarly, the work product doctrine is grounded in “strong public policy,” Upjohn, 449 U.S. at 398, and its principal purpose is to protect the accused and “assure
the thorough preparation and presentation of a case.”
him into a conference room, closed the door, and questioned him. Shortly thereafter, ERHC’s
counsel returned to ERHC’s office to find Mr. Ihekwoaba being questioned by the Government
despite having been specifically instructed that ERHC’s employees were represented by counsel
and, accordingly, should not be questioned in counsel’s absence. See id. at ¶¶ 10-13. ERHC
counsel entered the conference room and informed the Government that they were questioning a
represented company employee outside of the presence of counsel, and demanded that the
questioning cease. See id. When ERHC’s counsel later reiterated its objection to the
Government’s questioning of ERHC employees represented by counsel, the Government asserted
that ERHC’s counsel was “obstructing justice.” See id. at ¶ 17. Nonetheless, ERHC’s counsel
restated its objections in a letter to the Government sent that same day. See Exhibit E.
In light of all of these problems, ERHC’s Washington, DC counsel met with the
Government. At this meeting, ERHC counsel requested that the Government: (1) promptly
allow ERHC to copy all seized documents so that the company could conduct its business
operations; (2) immediately return all potential attorney-client privileged communications and
attorney work product materials so that ERHC’s counsel could conduct a privilege review and
provide the Government with a privilege log ; and (3) provide ERHC counsel with the
opportunity to review the sealed affidavit purporting to provide probable cause for the search and
seizure. ERHC’s counsel’s requests were denied.
Instead, in a subsequent telephone call with ERHC’s counsel, the Government indicated
for the first time that it was in the process of setting up a “taint team,” comprised of Department
of Justice attorneys and FBI Agents, to review and determine whether any of ERHC’s attorneyclient
privileged materials had been seized. Under the Government’s proposal, ERHC’s counsel
would have absolutely no role in this proposed privilege review. Only the Government would be permitted to review the seized materials and to determine ERHC’s right to assert attorney-client
privilege or attorney work product protection over a particular communication or document.
Given the inherent intrusion into ERHC’s attorney-client privilege, ERHC’s counsel advised the
Government that this proposal was untenable and unacceptable.
Although the Government had been engaged in negotiations with ERHC’s counsel on the
issue of copying all 118 boxes of ERHC’s seized company documents (at ERHC’s cost), the
Government, in a telephone call on June 9, 2006, has now conditioned copying and return to
ERHC of all of its company documents on the company agreeing to use of the proposed “taint
team” process.
Finally, throughout the negotiations, including the most recent call of June 9, 2006, the
Government has consistently refused to provide ERHC’s counsel with an opportunity to review
even a redacted version of the sealed Griffin Affidavit, and indicated that it would be several
months before the Government would consider unsealing the affidavit. To date, the Government
has failed to provide a compelling reason for its refusal.
ARGUMENT
First, ERHC requests that the Court enjoin the United States and any of its agents from
reviewing any seized materials, including paper documents and imaged computer hard drives,
pending judicial determination of an appropriate privilege review mechanism. Second, ERHC
requests that the Court order the Government to allow ERHC to obtain a copy of all 118 boxes of
seized documents so that it may resume normal business operations. Third, ERHC requests that
the Court order all seized facially privileged paper documents listed on the Government’s
Evidence Receipt returned to ERHC or its undersigned counsel for review and production back
to the United States once all privileged materials have been separated and logged (or if necessary, lodged with the Court).
This is more of same document just not sure how much Ihub will let me post. Document is 30 pages but probably about 10 won't need to be copied:
On May 3, 2006, Magistrate Judge Calvin Botley issued a search warrant authorizing a
search of ERHC’s premises. See Search Warrant In The Matter Of The Search Of The Offices of
ERHC Energy, Inc., Issued May 3, 2006, Warrant # H-06-326M (attached hereto as Exhibit A).
The first page of the search warrant states that probable cause supporting the warrant was
established by facts set forth in a sealed affidavit submitted by FBI Special Agent Dana Griffin
(“Griffin Affidavit”). See id. The warrant lists various federal criminal statutes allegedly
implicated by the sealed affidavit, including the Foreign Corrupt Practices Act, the mail and wire
fraud statutes, and securities fraud statutes. Despite the egregious nature of the implicated
federal criminal statues, no other information is provided on the face of the warrant.
On May 4, 2006, approximately 14 armed federal Agents wearing bulletproof vests,
along with U.S. Department of Justice attorney Mary Kit Dimke, arrived at ERHC’s office and
executed the search warrant. After entering the office, the Agents provided a copy of the warrant
to the two ERHC employees present, including CEO Walter Brandhuber. Since Agent Griffin’s
affidavit was filed under seal, the search warrant presented to Mr. Brandhuber contained no
assertion of probable cause for the search. Instead, the warrant contained only Schedule B,
calling for the seizure of extremely broad categories of ERHC property. See id.
Schedule B’s blanket categories essentially authorized the seizure of all “papers” related
to “the operation of ERHC as a business,” with no discernable limits or context. See id. For
example, the description of documents to be seized included:
18. Financial records, address lists, personal diaries, ledgers, general ledgers, logs,
telephone records, correspondence, and other papers relating to or reflecting the operation of the business in contracting with persons, consultants, private entities,
publicly traded entities, or foreign governmental entities;
19. Bank statements, cancelled checks, deposit slips, withdrawal transactions, or wire
transfers related to the operation of the business;
20. Sales invoices, receipts, cash register tapes, and sales journals related to the
operation of the business.
See id. (emphasis added). In short, the warrant called for the seizure of all paper records related
to all of ERHC’s financial transactions, all contracts, all issuance of shares or any other “paper”
related to the company’s operations. In addition, Schedule B made absolutely no provision to
prevent the search and seizure of ERHC’s attorney-client privileged communications and
attorney work product. See id. In the end, virtually every single paper document in ERHC’s
offices was removed – some 118 boxes in all. See Evidence Receipt (attached hereto as Exhibit
B).
In addition to the wholesale seizure of paper documents, the Agents completely “imaged”
all computers located at ERHC offices. Agents made no attempt to search those computer hard
drives to seize only electronic data that would arguably fall within the scope of Schedule B. See
Exhibit B at 1 (Evidence Receipt listing only “Imaged hard drive of Presario SR1000,” “Mirror
Image of Compaq Presario 5000,” “Image of Sony Vaio Laptop,” and “Image of Hard Drive of
Computer”). As a result, all electronic data contained on ERHC computers is now in the
possession of the Government, regardless of whether the Government is entitled to that data
under the terms of its own search warrant.
During the search, ERHC counsel present at the scene asserted ERHC’s privilege over
any attorney-client privileged communications or attorney work product in paper or electronic
form on the premises. See Affidavit of Allison Baker, Esq. at ¶ 11 (attached hereto as Exhibit C).
ERHC counsel requested that any clearly labeled attorney-client privileged files – such as those listing letters from ERHC counsel Baker Botts and files from ERCH counsel Brewer &
Pritchard).
In addition to its refusal to acknowledge efforts by ERHC’s counsel to assert privilege
over company documents during the search, the Government ignored, on at least one occasion,
instructions by ERHC’s counsel not to speak with, and certainly not to question, any ERHC
employee in the absence of ERHC’s counsel. See Affidavit of John Clay, Esq. at ¶ 5 (attached as
Exhibit D). Shortly after an ERHC employee asked to call ERHC counsel, but before counsel’s
arrival, the Government questioned CEO Walter Brandhuber in an ERHC conference room. See
id. at ¶ 8. This questioning occurred despite the Government having been informed by an ERHC
employee that ERHC was represented by counsel, and that counsel was on the way to the
company’s office to represent the company and its employees during the search. See May 4,
2006 Letter from John Clay, Esq. to Mary Kit Dimke, Esq. (attached as Exhibit E). After
entering the company’s office, ERHC counsel immediately informed the Government that he
needed to confer with his client; at that point, Mr. Brandhuber stepped out of the conference
room, where he had just been questioned by the Government. See Exhibit D at ¶¶ 8, 9.
Afterward, ERHC counsel informed the Government that ERHC and its employees are
represented by counsel, and that counsel had advised ERHC employees not to entertain questions
from the Government outside of the presence of ERHC counsel. See id. at ¶ 9.
Despite this notification to the Government, at a later point during the search the
Government again questioned an ERHC employee, CFO and Vice President for Finance,
Franklin Ihekwoaba, outside of the presence of ERHC counsel. See id. at ¶ 11. Mr. Ihekwoaba
entered ERHC’s office while ERHC counsel had momentarily stepped outside of the company’s
office suite. In the absence of ERHC counsel, the Government stopped Mr. Ihekwoaba, escorted
INTRODUCTION
On May 4, 2006, at least 14 armed federal Agents wearing bulletproof vests arrived at the
offices of ERHC, a publicly-traded Houston-based independent oil and gas company, to execute
a search warrant based on a sealed probable cause affidavit. Over the course of an entire
business day, Agents conducted a wholesale vacuuming of virtually all original paper files contained in ERHC’s office (over 118 boxes worth of documents), as well as a complete and
total electronic “imaging” of all ERHC computer hard drives and computer data, including all
ERHC email communications. The seized documents and the computer hard drives are replete
with attorney-client privileged communications and attorney work product. Yet, the Government
made absolutely no attempt during the search to prevent seizure of any of ERHC’s privileged
materials. In fact, throughout the day, the Government ignored the efforts of ERHC’s counsel
present at the search who repeatedly asserted ERHC’s privilege over clearly labeled privileged
files and provided the lead Agent with a list of lawyers and law firms retained by ERHC so that
privileged materials could be segregated during the search and returned to the company.
Rather than seek documents from ERHC through a subpoena – with which ERHC would
have fully complied – the Government chose to act through an exceedingly heavy-handed
seizure process that has resulted in the Government’s possession of all of ERHC’s attorney-client
privileged communications and attorney work product. A subpoena process would have allowed
ERHC’s counsel to review and produce responsive materials in a timely manner, and provide the
Government with a privilege log of attorney-client communications and attorney work product.
However, the Government’s actions have put ERHC in a position where it has no option but to
seek the immediate return of all privileged materials from the Government, if it is to protect
ERHC’s privilege rights.
Accordingly, on several occasions since the seizure, ERHC’s counsel has sought from the
Government the immediate return of all seized privileged materials, to no avail. Instead, the
Government has made the unacceptable offer to have a “taint team,” comprised of Department of
Justice attorneys and FBI Agents, unilaterally review the seized documents and computer hard
drives and make a determination of privilege on ERHC’s behalf. That is no solution. The Government’s “offer” ignores the well-settled principle that the attorney-client privilege is
ERHC’s alone to assert, and that only ERHC is in a position to determine whether seized
materials are privileged communications or attorney work product. Moreover, the Government’s
proposal that a “taint team” unilaterally review ERHC’s material and determine whether, and to
what extent, seized materials are privileged ignores the court-recognized principle that a “taint
team” may constitute a per se intentional governmental intrusion into ERHC’s constitutional
rights to effective counsel and a fair trial.
ERHC has repeatedly informed the Government that it does not consent to its privilege
rights being usurped and asserted by the Government, and has instead proposed two solutions:
either (1) the return of all facially privileged materials to ERHC’s counsel for a privilege review
and subsequent production to the Government of a privilege log, or (2) an agreement to submit
all seized materials to a special master or other neutral judicial officer to allow a special master
to conduct a review for attorney-client privileged communications and attorney work product.
The Government has repeatedly refused both of ERHC’s offers.
Moreover, as the Government has been informed, ERHC has been unable to resume its
normal functioning since the seizure of all of the company’s documents on May 5, 2006. All that
remains in ERHC’s offices are the company’s computers (which were imaged by the
Government), and a few miscellaneous documents – all other paper documents are gone. As a
result, ERHC has been engaged in ongoing negotiations with the Government to obtain a copy
set of all 118 boxes of seized documents. In order to promptly obtain a copy set of its documents
and resume its normal business operations, ERHC preliminarily agreed, at the Government’s
request, to pay the cost of a second copy set and electronic imaging process requested by the
Government, a cost likely totaling $60-$80,000. Despite that concession by ERHC, the Government has now broken off negotiations on this issue. Although the Government had
agreed, pending the identification of a mutually acceptable vendor, to provide ERHC with a copy
set of its own paper documents and electronic image of all seized documents (at ERHC’s cost),
the Government has now conditioned that process on ERHC’s agreement to allow a Government
“taint team” to first review ERHC’s seized documents and determine on its own which of the
seized materials are privileged. ERHC simply cannot agree to such a waiver of its privilege
rights, and should not have to do so in order to merely obtain a copy of its own seized property.
The Government asks ERHC to waive these rights in the context of repeated Government
refusals to allow ERHC counsel to review even an “attorneys eyes only” or redacted version of
the sealed affidavit supporting the executed search warrant. The Government’s blanket refusal
leaves ERHC completely in the dark as to the factual basis for an apparent Department of Justice
investigation that has left the company subject to an unconsented search and without any of its
business documents. Similarly, without access to the affidavit, ERHC cannot begin to assess
whether or not its constitutional rights have been violated by a search and seizure that exceeded
the scope of the warrant, whether the warrant properly provided for the protection of ERHC’s
privileged materials (which clearly did not occur), or whether the warrant was based on
improperly established probable cause. To date, the Government has not provided a compelling
reason to deny ERHC access to the factual basis underlying the warrant. As a result, ERHC asks
the Court to protect its constitutional rights and unseal the affidavit.
STATEMENT OF FACTS
ERHC is a Houston-based independent oil and gas company. Its sole business location is
5444 Westheimer Road, Suite 1570, Houston, Texas. The company is engaged in oil exploration in the Gulf of Guinea off the coast of Nigeria and the island nation of Sao Tome and Principe,
and the development of oil and gas fields elsewhere.
Getting Pacer documents now. Haven't reviewed, just copying and pasting at this point. Here's first:
ERHC ENERGY INC.’S MOTION FOR RETURN OF PROPERTY, TO ENJOIN
GOVERNMENT REVIEW OF SEIZED DOCUMENTS AND COMPUTER IMAGES
PENDING JUDICIAL REVIEW, AND TO UNSEAL AFFIDAVIT IN SUPPORT OF
SEARCH WARRANT
For the reasons set forth in the attached memorandum of law, under Fed. R. Crim. P.
41(g), ERHC Energy Inc. (“ERHC”), moves for the return of property and to enjoin, prior to
judicial determination of an appropriate review mechanism, any review of documents and
computer hard drives seized by the Government pursuant to a search warrant dated May 3, 2006
and executed on May 4, 2006 because the seized documents and computer hard drives contain all
manner of attorney-client privileged communications and attorney work product. ERHC further
moves, under the Fourth Amendment to the United States Constitution, for the Court to unseal
the affidavit in support of the search warrant dated May 3, 2006 and executed at ERHC’s offices
on May 4, 2006. A proposed Order is attached.
DATED: June 9, 2006
Respectfully submitted,
Google's secret weapon
Where does Coca-Cola's competitive advantage lie? In its secret formula, most would say. But the real moat around the soft-drinks business is its powerful distribution system. Strangely enough, the same is true of Google.
Sergey Brin and Larry Page have known for years that the most formidable barrier to entry to Google's near-monopoly of internet search is not their unique algorithm. Rather it's the company's global network of thousands of stripped-down PCs that keeps competitors at bay. Investors don't seem to get this. When the search company's costs go up, they mark down its price. Instead they should applaud Google for building a moat around the business.
MSFT22.07, +0.19, +0.9%) recently disclosed plans to ramp up capital spending by pouring billions of dollars into search, Wall Street thumbed its nose at the company and its stock. What Microsoft understood, but has failed to communicate clearly, is that its best hope of catching Google is to deploy its own network of linked personal computers capable of producing rapid and relevant search results.
Google users expect instant gratification. That reinforces the importance of continued hardware deployment and hefty capital investment, since delivering search results in a fraction of a second requires that data centers be as physically close to users as possible. If one data center has technical problems, queries are routed instantly and seamlessly to the next closest location. Google users never see any of this, but they remain addicted to the search engine because it instantly, and without fail, satisfies their curiosity.
With every dollar that Google spends on its computer network, it raises the barriers to entry to outsiders. Competitors may one day crack the search algorithm, but they'll have a hard time catching up.
-- David Vise
http://www.marketwatch.com/News/Story/Story.aspx?dist=newsfinder&siteid=google&guid=%7BBF6CA...
Oilman, here's link to poster on RB:
http://ragingbull.lycos.com/mboard/boards.cgi?board=ERHE&read=97229
Glty.
Can't get article yet, but House votes to strip Jefferson of committe post. "Breaking News" on msnbc.com.