Search Warrant Affidavits: What to Do

How can counsel keep search warrant materials, especially the affidavit, from the public eye?

Constitutional and Common-Law Rights of Access

Federal Rule of Criminal Procedure 41(i) requires that the warrant, return, inventory and 'all other related papers' be filed with the clerk of the district court where the property was seized. Absent a motion to seal the warrant materials, the magistrate judge is required to make them public. A corporation's best hope of keeping a search warrant affidavit sealed remains for the Assistant U.S. Attorney (AUSA) to move for sealing on the grounds that release of the materials will reveal the government's theories or expose its informants.

Unfortunately, AUSAs will not always be sufficiently concerned to move for sealing. Furthermore, in the wake of highly publicized corporate scandals, judges are becoming increasingly reluctant to seal warrant materials in their entirety based solely upon a prosecutor's broad assertion that unsealing could hurt the government's ability to investigate ' particularly if the media moves to intervene and seeks access to those materials. Some circuit courts of appeals recognize that the media have a First Amendment right of access to warrant materials. See e.g., In Re Search Warrant, 855 F.2d 569, 574-575 (8th Cir. 1988) (stating that access can only be denied if there is a compelling government interest narrowly tailored to serve that interest). While others do not recognize a constitutional right of access, they do recognize a common-law right of access to warrant materials, see e.g., Baltimore Sun v. Goetz, 886 F.2d 60, 65-66 (4th Cir. 1989), and they apply a similar analysis as those courts recognizing the constitutional right. For example, the Fourth Circuit has held that the common-law right of access can be overcome only where sealing is 'essential to preserve higher values and is narrowly tailored to serve those interests.' Baltimore Sun, 886 F.2d at 65-66. Among the 'higher values' counsel can rely upon to argue that warrant materials should remain sealed are the company's and its employees' reputation and privacy interests; protection of trade secret or proprietary information; and collateral consequences to the company's employees and shareholders.

'Higher Values'

The most compelling 'higher value' for counsel to rely upon is the reputation and privacy interests of the company and its employees. The Supreme Court has recognized that public disclosure of warrant materials may undermine the legitimate reputational and privacy interests of persons and entities who are identified in warrant materials but have not been charged. Cf. Nixon v. Warner Communications, 435 U.S. 589, 598 (1978) ('courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption').

The case law, however, generally discusses privacy and reputational concerns with respect to people, not corporations. Nevertheless, courts should acknowledge that 'higher values' are implicated when a corporation seeks to keep potentially devastating allegations in search warrant affidavits sealed. After all, corporations act through their employees, and criminal allegations about corporations necessarily impact individuals in those corporations. Privacy interests are of particular concern where no indictment has issued because 'where no indictments have issued against persons allegedly involved in criminal activity there is a clear suggestion that, whatever their truth, the government cannot prove these allegations. The court of public opinion is not the place to seek to prove them.' Certain Interested Individuals v. Pulitzer Pub'g Co., 895 F.2d 460, 466 (8th Cir. 1990). Similarly, the Third Circuit has stated that the 'risk of serious injury to innocent third parties is a grave one' where search warrant materials have been disclosed pre-indictment. United States v. Smith, 776 F.2d 1104, 1113 (3rd Cir. 1985).

Notably, a broad array of statutes and rules recognize privacy and reputation interests as higher values. For example, a central purpose of the grand jury secrecy rule is to protect the reputation of individuals until the grand jury issues an indictment. See Douglas Oil Co. v. Petrol Stops N.W., 441 U.S. 211, 219 (1979). Prohibitions on disclosure of matters occurring before the grand jury are codified in Fed. R. Crim. P. 6(e)(2) (prohibiting disclosure of grand jury material), Rule 6(e)(4) (magistrate judge may seal indictment), Rule 6(e)(5) (grand jury hearings are closed to the public), and Rule 6(e)(6) (records, orders and subpoenas relating to proceedings must be kept under seal).

The Freedom of Information Act (FOIA) exempts from public disclosure agency records containing information compiled for law enforcement purposes that 'could reasonably be expected to constitute an unwarranted invasion of personal privacy,' 5 U.S.C. ' 552(b)(7)(C), in order to protect persons identified in such records from the stigma of being associated with criminal investigations. See U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 767 (1989).

Similarly, when the government terminates an electronic surveillance investigation under Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. ” 2510-2522 (1994), it is required to maintain 'under seal all of the applications and orders (including affidavits and accompanying materials) that were filed in support of the electronic surveillance.' U.S. Attorney's Manual, ' 9-7.250. A primary purpose of this sealing requirement is 'to protect the privacy rights of those individuals implicated in the Title III investigation.' Id.

Preventing the public disclosure of a warrant affidavit is also a 'higher value' in situations where unsealing exposes confidential trade secret and proprietary information. The Supreme Court has held that a company's interest in preserving the confidentiality of proprietary information which, if disclosed prior to indictment, would harm its competitive standing, may outweigh the public's interest in disclosure. See Nixon, 435 U.S. at 598. Moreover, a provision of FOIA, 5 U.S.C. ' 552(b)(4), exempts company trade secrets or proprietary information from disclosure if 'substantial harm to a competitive position' would occur as a result of release. See Calhoun v. Lyng, 864 F.2d 34, 36 (5th Cir. 1988).

Finally, the Department of Justice has recognized the protection of non-culpable persons associated with corporations from adverse collateral consequences as a higher value. See Memorandum from Larry D. Thompson, Deputy Attorney General, to Heads of Department Components & U.S. Attorneys (Jan. 20, 2003), at 'II(A)(7). Specifically, prosecutors should consider 'disproportionate harm to shareholders, pension holders and employees not proven personally culpable and impact on the public arising from the prosecution' of a business organization. Depending on the circumstances, counsel may be able to argue that unsealing warrant materials would cause irreparable harm not only to the company, but to its innocent shareholders and employees as well.

Common Cause with the Prosecutor

As counsel to a company whose premises have been searched, you may share common ground with the prosecutor on the question of sealing. You and the AUSA may both favor sealing, albeit for different reasons: The prosecutor does not want confidential sources and theories exposed, and you are concerned with the company's reputation, stock price and future business. As defense counsel, your arguments could fill in the gaps where the government's arguments do not apply, and, together, you both might persuade the magistrate judge to seal the entire affidavit. As counsel, you must be prepared to argue that redaction does not adequately protect the corporation from harm. Some courts have held that redaction is not practical and will not protect the privacy or reputation interests at stake. See e.g., In Re Search Warrant, 48 F.Supp.2d. 1082, 1084 (N.D. Ohio 1999).

In the final analysis, your primary objective is to persuade the prosecutor not to charge your client. If you succeed, but scathing allegations in the search warrant affidavit were previously released, the company may have won the battle, but lost the war: its reputation damaged, stock price depressed, shareholders and innocent employees personally impacted and trade secret or proprietary information released. To prevent this result, you must be prepared to show that 'higher values' favor sealing.

Brien T. O'Connor is a former federal prosecutor in the District of Massachusetts and is a partner at Ropes & Gray in Boston. Randy Katz is a litigation associate at Ropes & Gray.

Federal agents descend upon a manufacturing facility of a publicly traded client that makes parts for Department of Defense contractors. The agents conduct a day-long search and drive away with hundreds of boxes of documents, as well as data downloaded from company computers. You are the company's counsel, and within 2 days you piece together the government's core theories and many of the 'facts' that caused it to conduct the search.

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.

How can counsel keep search warrant materials, especially the affidavit, from the public eye?

Constitutional and Common-Law Rights of Access

Federal Rule of Criminal Procedure 41(i) requires that the warrant, return, inventory and 'all other related papers' be filed with the clerk of the district court where the property was seized. Absent a motion to seal the warrant materials, the magistrate judge is required to make them public. A corporation's best hope of keeping a search warrant affidavit sealed remains for the Assistant U.S. Attorney (AUSA) to move for sealing on the grounds that release of the materials will reveal the government's theories or expose its informants.

Unfortunately, AUSAs will not always be sufficiently concerned to move for sealing. Furthermore, in the wake of highly publicized corporate scandals, judges are becoming increasingly reluctant to seal warrant materials in their entirety based solely upon a prosecutor's broad assertion that unsealing could hurt the government's ability to investigate ' particularly if the media moves to intervene and seeks access to those materials. Some circuit courts of appeals recognize that the media have a First Amendment right of access to warrant materials. See e.g., In Re Search Warrant, 855 F.2d 569, 574-575 (8th Cir. 1988) (stating that access can only be denied if there is a compelling government interest narrowly tailored to serve that interest). While others do not recognize a constitutional right of access, they do recognize a common-law right of access to warrant materials, see e.g., Baltimore Sun v. Goetz , 886 F.2d 60, 65-66 (4th Cir. 1989), and they apply a similar analysis as those courts recognizing the constitutional right. For example, the Fourth Circuit has held that the common-law right of access can be overcome only where sealing is 'essential to preserve higher values and is narrowly tailored to serve those interests.' Baltimore Sun, 886 F.2d at 65-66. Among the 'higher values' counsel can rely upon to argue that warrant materials should remain sealed are the company's and its employees' reputation and privacy interests; protection of trade secret or proprietary information; and collateral consequences to the company's employees and shareholders.

'Higher Values'

The most compelling 'higher value' for counsel to rely upon is the reputation and privacy interests of the company and its employees. The Supreme Court has recognized that public disclosure of warrant materials may undermine the legitimate reputational and privacy interests of persons and entities who are identified in warrant materials but have not been charged. Cf. Nixon v. Warner Communications , 435 U.S. 589, 598 (1978) ('courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption').

The case law, however, generally discusses privacy and reputational concerns with respect to people, not corporations. Nevertheless, courts should acknowledge that 'higher values' are implicated when a corporation seeks to keep potentially devastating allegations in search warrant affidavits sealed. After all, corporations act through their employees, and criminal allegations about corporations necessarily impact individuals in those corporations. Privacy interests are of particular concern where no indictment has issued because 'where no indictments have issued against persons allegedly involved in criminal activity there is a clear suggestion that, whatever their truth, the government cannot prove these allegations. The court of public opinion is not the place to seek to prove them.' Certain Interested Individuals v. Pulitzer Pub'g Co. , 895 F.2d 460, 466 (8th Cir. 1990). Similarly, the Third Circuit has stated that the 'risk of serious injury to innocent third parties is a grave one' where search warrant materials have been disclosed pre-indictment. United States v. Smith , 776 F.2d 1104, 1113 (3rd Cir. 1985).

Notably, a broad array of statutes and rules recognize privacy and reputation interests as higher values. For example, a central purpose of the grand jury secrecy rule is to protect the reputation of individuals until the grand jury issues an indictment. See Douglas Oil Co. v. Petrol Stops N.W. , 441 U.S. 211, 219 (1979). Prohibitions on disclosure of matters occurring before the grand jury are codified in Fed. R. Crim. P. 6(e)(2) (prohibiting disclosure of grand jury material), Rule 6(e)(4) (magistrate judge may seal indictment), Rule 6(e)(5) (grand jury hearings are closed to the public), and Rule 6(e)(6) (records, orders and subpoenas relating to proceedings must be kept under seal).

The Freedom of Information Act (FOIA) exempts from public disclosure agency records containing information compiled for law enforcement purposes that 'could reasonably be expected to constitute an unwarranted invasion of personal privacy,' 5 U.S.C. ' 552(b)(7)(C), in order to protect persons identified in such records from the stigma of being associated with criminal investigations. See U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press , 489 U.S. 749, 767 (1989).

Similarly, when the government terminates an electronic surveillance investigation under Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. ” 2510-2522 (1994), it is required to maintain 'under seal all of the applications and orders (including affidavits and accompanying materials) that were filed in support of the electronic surveillance.' U.S. Attorney's Manual, ' 9-7.250. A primary purpose of this sealing requirement is 'to protect the privacy rights of those individuals implicated in the Title III investigation.' Id.

Preventing the public disclosure of a warrant affidavit is also a 'higher value' in situations where unsealing exposes confidential trade secret and proprietary information. The Supreme Court has held that a company's interest in preserving the confidentiality of proprietary information which, if disclosed prior to indictment, would harm its competitive standing, may outweigh the public's interest in disclosure. See Nixon, 435 U.S. at 598. Moreover, a provision of FOIA, 5 U.S.C. ' 552(b)(4), exempts company trade secrets or proprietary information from disclosure if 'substantial harm to a competitive position' would occur as a result of release. See Calhoun v. Lyng , 864 F.2d 34, 36 (5th Cir. 1988).

Finally, the Department of Justice has recognized the protection of non-culpable persons associated with corporations from adverse collateral consequences as a higher value. See Memorandum from Larry D. Thompson, Deputy Attorney General, to Heads of Department Components & U.S. Attorneys (Jan. 20, 2003), at 'II(A)(7). Specifically, prosecutors should consider 'disproportionate harm to shareholders, pension holders and employees not proven personally culpable and impact on the public arising from the prosecution' of a business organization. Depending on the circumstances, counsel may be able to argue that unsealing warrant materials would cause irreparable harm not only to the company, but to its innocent shareholders and employees as well.

Common Cause with the Prosecutor

As counsel to a company whose premises have been searched, you may share common ground with the prosecutor on the question of sealing. You and the AUSA may both favor sealing, albeit for different reasons: The prosecutor does not want confidential sources and theories exposed, and you are concerned with the company's reputation, stock price and future business. As defense counsel, your arguments could fill in the gaps where the government's arguments do not apply, and, together, you both might persuade the magistrate judge to seal the entire affidavit. As counsel, you must be prepared to argue that redaction does not adequately protect the corporation from harm. Some courts have held that redaction is not practical and will not protect the privacy or reputation interests at stake. See e.g., In Re Search Warrant, 48 F.Supp.2d. 1082, 1084 (N.D. Ohio 1999).

In the final analysis, your primary objective is to persuade the prosecutor not to charge your client. If you succeed, but scathing allegations in the search warrant affidavit were previously released, the company may have won the battle, but lost the war: its reputation damaged, stock price depressed, shareholders and innocent employees personally impacted and trade secret or proprietary information released. To prevent this result, you must be prepared to show that 'higher values' favor sealing.

Brien T. O'Connor is a former federal prosecutor in the District of Massachusetts and is a partner at Ropes & Gray in Boston. Randy Katz is a litigation associate at Ropes & Gray.