In re Grand Jury Subpoena, No. 15-35434 (9th Cir. 2016)
Annotate this CaseIn the midst of a federal investigation into activities of the former Governor of Oregon, John Kitzhaber, a grand jury subpoena seeks a broad range of information from the State of Oregon. For several years before Kitzhaber left office, copies of his personal emails were archived on Oregon’s computer servers. Because this cache would be turned over to the government under the subpoena, Kitzhaber argues the subpoena is unreasonably broad. The government disclaims any interest in Kitzhaber’s communications with his personal attorneys but argues it is otherwise entitled to everything it has requested. The court agreed with Kitzhaber that he had a reasonable expectation of privacy in much of his personal email (although the Fourth Amendment’s protection does not extend to any use of a personal email account to conduct public business), and that the subpoena in this case - which is not even minimally tailored to the government’s investigatory goals - is unreasonable and invalid. The court disagreed, however, that Kitzhaber may assert the attorney-client privilege for his communications, including communications regarding potential conflicts of interest and ethics violations, with the State of Oregon’s attorneys. Whatever privilege may protect those communications belongs to the State of Oregon, not to Kitzhaber as an individual officeholder in his personal capacity. Accordingly, the court reversed and remanded with instructions to quash the government’s present subpoena in its entirety.
Court Description: Grand Jury Subpoena. The panel reversed the district court’s order declining to quash a grand jury subpoena seeking a broad range of information from the State of Oregon as part of a federal investigation into activities of former Governor John Kitzhaber, and remanded. For several years before Kitzhaber left office, copies of his personal emails were archived on Oregon’s computer servers. The panel agreed with Kitzhaber, an intervenor, that he had a reasonable expectation of privacy in much of his personal email (although the Fourth Amendment’s protection does not extend to any use of a personal email account to conduct public business), and that the subpoena in this case — which is not even minimally tailored to the government’s investigatory goals – is unreasonable and invalid. The panel held that Kitzhaber may not assert the attorney-client privilege for his communications, including communications regarding potential conflicts of interest and ethics violations, with the State of Oregon’s attorneys. The panel explained that whatever privilege may protect those communications belongs to the State of Oregon, not to Kitzhaber as an individual officeholder in his personal capacity. The panel remanded with instructions to quash the present subpoena in its entirety. The panel declined to address in the first instance issues likely to arise concerning the means of IN RE GRAND JURY SUBPOENA 3 segregating and producing the material requested by a subpoena tailored in accordance with this opinion.
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