Appellate Decisions

The Fourth Circuit on Filter-Protocol Appeals

The Fourth Circuit held that a privilege claimant could not appeal to challenge filter protocols for potentially protected evidence.

August 8, 2024

By Bryan Lammon

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

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