Search Warrant Affidavits: What to Do

The government has filed under seal a detailed affidavit with the search warrant that could help formulate a strategy for your client. But obtaining it unsealed may be a mixed blessing: The affidavit is likely loaded with scathing allegations by a government agent ' complete with citations to fraud and corruption statutes and possibly RICO ' based on untested hearsay and the word of a whistleblower with a profit motive. Such allegations, if made public, could cause serious problems for your client. While the lawyer for an organized-crime figure without a good reputation to lose would want the affidavit unsealed, counsel for a business must weigh the potential damage from release of these allegations against the benefits to be gained from seeing the government's theories and 'facts' in the warrant affidavit.

The downside can be swift and devastating. For example, when the affidavit in support of a search warrant executed on a Tenet Health Care facility was unsealed in October 2002, Tenet's stock lost almost half of its value within 4 days. See The Wall St. Journal, Nov. 6, 2002, at A2. Besides harming reputation, unsealing may reveal proprietary or other sensitive business information.