## Facts

- Federal agents obtained and executed a search warrant for criminal-defense attorney Donald F. Manno’s law offices in New Jersey during an ongoing federal investigation.
- The warrant authorized the seizure of 16 categories of documents and electronic information “pertaining to” 43 identified individuals or entities.
- During execution, agents inspected files on office computers, copied six hard drives and other electronic storage devices, and seized three laptops.
- Manno alleged the search and seizure were overbroad because agents reviewed and seized data containing information about clients beyond those listed in the warrant.
- Manno also alleged the seizure threatened attorney-client privilege and attorney work product because the devices contained confidential client communications and litigation materials.
- Manno filed a verified civil complaint and sought preliminary restraints asking the court to: (i) stop the government from reading or inspecting the seized electronic files, (ii) order return of the originals and any copies, and (iii) require the government to disclose the names or labels of files the agents had inspected.
- The government responded that seizing and copying entire drives was necessary so computer specialists could locate materials authorized by the warrant and then retrieve, analyze, and authenticate responsive data.
- The government proposed a staged privilege-screening process: a “privilege agent” would first identify materials within the warrant’s scope; a separate “privilege prosecutor” would review responsive items for privilege; non-privileged material would be provided to a separate prosecution team; and disputed items would be addressed through a meet-and-confer process with Manno or other privilege holders, followed by a judicial determination if needed.
- At the time the court considered the application, the government represented that the prosecution team had not yet viewed the seized electronic material.

## Issues

1. Whether the court should grant preliminary restraints barring the government from reviewing electronic data seized from an attorney’s office, ordering return of originals and copies, and requiring disclosure of inspected file names/labels, based on claims of overbreadth and attorney-client privilege/work-product risk.
2. Whether the government’s proposed filter-team procedure, with judicial resolution of disputes, provided sufficient protection for potentially privileged materials while allowing the investigation to proceed.

## Decision

- The court denied Manno’s request for preliminary restraints preventing review of the seized electronic materials and compelling return of originals and copies.
- The court permitted the government to proceed with review under the proposed privilege-screening protocol, including the meet-and-confer process and court resolution of privilege disputes before any disputed material could be provided to the prosecution team.
- The court declined to order the government to disclose the names or labels of files agents inspected during execution of the warrant as part of the requested preliminary relief.

## Legal Principles

- Preliminary injunctive relief is an extraordinary remedy; the movant must show, among other things, a likelihood of success on the merits and irreparable harm without relief, and the court must consider the balance of harms and the public interest.
- In pre-indictment disputes over seized property and evidence, a district court has limited equitable authority and considers factors such as whether agents showed callous disregard for constitutional rights, the movant’s need for the property, the risk of irreparable injury, and whether the movant has an adequate remedy at law.
- A search of a law office pursuant to a warrant is not automatically invalid because privileged or work-product material may be present; courts manage privilege risks through procedures that prevent the prosecution team from exposure to protected material.
- In electronic-data searches, it can be reasonable to seize or copy entire storage devices for off-site review when on-site segregation is impractical, so long as review is controlled and confined to items within the warrant’s scope.
- A filter-team process that separates screening personnel from the prosecution team, requires consultation with privilege holders, and provides for judicial determinations of disputed privilege claims can reduce the risk that privileged communications are disclosed or used improperly.
- When the prosecution team has not yet viewed the seized material and a screening protocol is in place, claimed harm from disclosure of privileged material may be too speculative to justify broad pre-review restraints, particularly given the government’s interest in completing a criminal investigation.

## Conclusion

The court refused to halt the government’s review of electronic media seized from attorney Donald Manno’s office because Manno did not show the extraordinary need for sweeping pre-review restraints, especially where the government had not yet provided the data to the prosecution team and proposed a structured filter-team process with meet-and-confer steps and court review to address attorney-client privilege disputes while allowing the investigation to continue.


Donald F. Manno v. Christopher J. Christie, 2008 U.S. Dist. LEXIS 65106 (2008)