The Fourth Circuit on Filter-Protocol Appeals
In In re Search Warrants Issued February 18, 2022, the Fourth Circuit dismissed an appeal that challenged the filter protocols for seized evidence. The district court had approved certain protocols to weed out potentially protected evidence. The district court later denied a privilege claimant’s motion seeking to alter those protocols. The Fourth Circuit held that under DiBella v. United States, the order was neither an appealable final decision nor an appealable denial of a preliminary injunction.
The Filter-Protocol Decision
The dispute stemmed from the government’s seizure of documents related to a fraud investigation. Due to the risk that some of the seized material might be privileged or protected by work product, the government proposed—and the district court approved—a filter protocol for preventing the disclosure of protected material.
The privilege claimant later intervened. He also moved under Federal Rule of Criminal Procedure 41(g) to modify the filter protocol. The district court denied that request, and the privilege claimant appealed.
Dismissing the Filter-Protocol Appeal
The privilege claimant presented two theories for appellate jurisdiction. The Fourth Circuit rejected both.
Not a Final Decision
First, the court of appeals held that the filter-protocol decision was not a final decision under 28 U.S.C. § 1291.
In the course of doing so, the Fourth Circuit explained that the Supreme Court’s decision in DiBella v. United States “applies today with just as much force to rule 41(g) orders as it did” to the order at issue in DiBella. DiBella held that pre-indictment suppression motions are not immediately appealable. And even though a successful Rule 41(g) motion doesn’t require suppression, the concerns that animated DiBella—such as avoiding delay tactics—applied to Rule 41(g) motions.
DiBella has an exception for motions that (1) seek no more than the return of property and (2) are completely unrelated to an ongoing criminal prosecution. But the motion in question didn’t fit that exception. The documents had been copied, so the government had returned the originals to the privilege claimant. And no one disputed that the privilege claimant was a target of the grand-jury investigation for which the documents were seized.
Not an Appealable Injunction Denial
The Fourth Circuit then held that the order was not an appealable injunction under 28 U.S.C. § 1292(a)(1). Even if the order could be characterized as denying a preliminary injunction, the Fourth Circuit has held that DiBella’s bar on appeals applies to injunction appeals, too.
In re Search Warrants Issued February 18, 2022, 2024 WL 3627613 (4th Cir. Aug. 2, 2024), available at the Fourth Circuit and Westlaw
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
In In re Grand Jury Subpoeans Dated Sep. 13, 2023, the Second Circuit held that the target of a grand jury investigation could appeal an order directing the target’s attorneys to disclose documents over a claim of attorney-client privilege. The order was appealable via the Perlman doctrine, which generally allows privilege claimants to appeal from discovery […]
Continue reading....
In CPC Patent Technologies Pty Ltd. v. Apple Inc., the Ninth Circuit held that a 28 U.S.C. § 1782 discovery proceeding was not final because the district court had not definitively resolved the scope of discovery. Although the district court had authorized a subpoena, the court had not addressed the discovery target’s objections to the scope of […]
Continue reading....
In In Re Grand Jury Investigation, the Eleventh Circuit held that a privilege claimant could not appeal orders compelling it and third parties to produce documents. The analysis of the order directed at the privilege claimant was straightforward. Privilege claimants normally must take contempt appeals to challenge a discovery order. The privilege claimant in Grand […]
Continue reading....
In Asante-Chioke v. Dowdle, the Fifth Circuit reviewed an order refusing to limit the scope of discovery to qualified-immunity issues. The court said that it could immediately review this sort of order via the collateral-order doctrine. But I have my doubts. The Fifth Circuit relied on a line of cases holding that defendants can appeal […]
Continue reading....
In In re Grand Jury 2021 Subpoenas, the Fourth Circuit joined several other circuits in holding that only non-parties can take Perlman appeals. I wrote about this issue a few years ago when the Second Circuit did the same. This cutting back on Perlman appeals is as wrong now as it was then.
Continue reading....Recent Posts
This month’s roundup features two decisions on litigants’ attempts to voluntarily dismiss some of their claims. In one, a defendant filed a written, pretrial notice that it abandoned one of its counterclaims. In another, the parties stipulated to a dismissal, but one defendant did not sign the stipulation. In both cases, the court deemed the […]
Continue reading....
In Gessele v. Jack in the Box Inc., the Ninth Circuit held that when a district court alters its judgment by granting a post-judgment motion, the time to appeal runs from the entry of an amended judgment. Unlike orders denying post-judgment motions, the appeal clock does not start with the order itself.
Continue reading....
In Simmons v. USI Insurance LLC, the Eleventh Circuit held that the purported abandonment of a counterclaim before trial was ineffective and thus precluded appellate jurisdiction. The counterclaim was the only theory of relief that had not been resolved at summary judgment or trial. And in a written notice before trial, the defendant had said […]
Continue reading....
September’s biggest development in federal appellate jurisdiction concerned appeals from denials of anti-SLAPP motions under California law. The Ninth Circuit overruled its longstanding rule that defendants can immediately appeal from these denials via the collateral-order doctrine. But only a week later, the Federal Circuit followed that now-overruled caselaw and heard an anti-SLAPP appeal. It will […]
Continue reading....
Last month saw the Ninth Circuit apply its rule that a minute order can count as a separate document for purposes of starting the appeal clock. The Sixth Circuit explained when it cannot review contract-formation issues in an arbitration appeal. And the Fourth Circuit declined to exercise pendent appellate jurisdiction over standing and ripeness issues […]
Continue reading....