Appeals from the United States District Court for the District of New Jersey, D.C. Misc. No. 85-79 and Civil No. 85-1114.
Seitz,*fn* Sloviter and Greenberg, Circuit Judges.
These two appeals were consolidated for argument before this court. The origin of this controversy is recounted in our earlier opinion. In re Impounded Case (Law Firm), 840 F.2d 196 (3d Cir. 1988). We will repeat that scenario only to the extent necessary to an understanding of the issues raised on these appeals.
In 1985, in a miscellaneous criminal proceeding, the law firm*fn1 involved in these appeals was served with a search warrant authorizing the search of its office and the seizure of certain identified files and other material. The application for the warrant was supported by an affidavit of a special agent asserting the bases for probable cause to believe that evidence of certain identified federal crimes would be found at the office. Because of a recognized concern for privacy interests, the terms of the warrant provided that certain files were not to be inspected without leave of court, pursuant to a notice procedure. The government does not attack this procedure.
Shortly after the search and seizure, the law firm filed an application in the miscellaneous proceeding in the district court in which it sought to prevent the government from inspecting the seized material and to have it sealed. The court by order dated February 21, 1985, granted such relief until further order of the court. Thereafter, by order dated March 26, 1985, in the same proceeding, the court granted what amounted to a preliminary injunction essentially continuing the sealed status of the seized documents.
Meanwhile, on March 1, 1985, the law firm filed an independent civil action in the district court seeking, inter alia, injunctive relief in the form of an order directing the return of the seized items. In 1987, the district court granted mandatory relief in the civil action, directing the return of the documents, solely on the ground that the search warrant was overbroad and thereby violated the fourth amendment. A stay was granted and thereafter this court reversed, In re Impounded Case (Law Firm), above, concluding that the warrant was not overbroad. It remanded the case to the district court for further proceedings.
After remand, the district court granted the government's motion for partial summary judgment in the civil action by order dated October 17, 1988. It rejected the firm's attacks on the manner in which the search warrant had been executed and the reasonableness of the government's seizure of certain files. On December 15, 1988, the district court issued a final order dismissing the law firm's complaint. This is one of the two orders appealed (No. 89-5152).
During this same period, on October 27, 1988, the government filed a renewed request in the miscellaneous proceeding for the entry of an order authorizing it to inspect the seized but sealed documents. The government filed with its application an affidavit by a Special Attorney in the Department of Justice supporting its position on the application of the crime-fraud exception to the attorney-client privilege and the work product doctrine. The district court ordered the law firm to show cause why the requested order should not be entered.
After briefing and argument, the district court entered an order on December 5, 1988, in the miscellaneous proceeding, permitting the government to inspect the seized material with two limitations:
(1) the law firm was given until December 12, 1988, to present to the court any document disclosure of which the law firm believed "'would implicate the client in the very criminal activity for which legal advice was sought.' See In re Grand Jury Investigation (Tinari), 631 F.2d 17, 19 (3d Cir. 1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 869, 66 L. Ed. 2d 808 (1981)." If the law firm presented any such document the court would then decide whether it was privileged.
(2) the parties were given until the same date to meet, examine the exteriors of the files, and determine whether the files were properly seized pursuant to the search warrant.
The December 5, 1988, order is the second order appealed (No. 88-5940). This court denied a stay of this inspection order and apparently the government was given access to most of the previously sealed documents. On December 15, 1988, the law firm filed one notice of appeal covering the final order in the civil action dated December 15, 1988 and the December 5, 1988 order in the miscellaneous proceeding. By orders dated December 22, 1988 and January 20, ...