Metropolitan News-Enterprise


Thursday, July 14, 2016


Page 3


Court Rejects Subpoena for Former Governor’s Personal Emails

But Panel Says Oregon’s Former Chief Executive Cannot Claim Privilege as to Communications With State Lawyers




Federal prosecutors probing possible corruption in the awarding of Oregon state contracts went too far in subpoenaing the personal emails of a former governor, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

U.S. District Judge Marco Hernandez had denied former Gov. John Kitzhaber’s motion to quash, in support of which the ex-chief executive said he was unaware that copies of his personal emails had been archived for years on the state’s computer servers. To open those communications, including those discussing personal and family matters unrelated to his official duties, and communications with his personal attorneys and state lawyers, would violate the Fourth Amendment and the attorney-client privilege, he argued.

The subpoena was served in February of last year, on the very day that Oregon’s longest-serving governor announced his resignation. Kitzhaber denied any wrongdoing, but his position became untenable after numerous political leaders, including fellow Democrats, said he should step down in the face of allegations that fiancée Cylvia Hayes used the power of his office to land contracts for her green-energy consulting firm.

Elected Four Times

Kitzhaber, 69, is a medical doctor and was first elected governor in 1995. He stepped down after two terms, in 2003, then returned to the office eight years later and was elected to a fourth term two years ago, resigning a little over a month into the new term.

Hernandez agreed with lawyers for Kitzhaber that communications between the former governor and his personal attorneys were privileged, and ordered the government to segregate those and keep the secret from the grand jury before which the other emails were to be produced. But he rejected all of the other arguments, holding that Kitzhaber could only seek constitutional protections by moving to suppress, in the event he were to be indicted.

Judge Marsha Berzon, however, writing for the appeals court, said the motion should have been granted as to Kitzhaber’s personal emails, because the governor did not lose his right to privacy and the subpoena was “unreasonably overbroad.”

The panel did, however, agree with prosecutors that Kitzhaber cannot claim attorney-client privilege with respect to emails exchanged with the state’s lawyers, including those in which he discussed potential conflicts of interests and ethics violations.

Precedent Cited

Ninth Circuit precedent, Berzon said, “make[s] clear that a subpoena may be quashed when no effort is made to tailor the request to the investigation, even if some fraction of the material the subpoena seeks is relevant.”

The judge also concluded that possession of the emails by the state on its servers does not vitiate Kitzhaber’s reasonable expectation of privacy in those emails that only discuss personal matters. But the privacy claim “lacks force,” she said, with respect to any email that relates to official business and therefore meets the definition of a public record under Oregon law.

Similarly, she said, the ex-governor cannot claim attorney-client privilege with respect to emails between himself and government lawyers.

“In no instance, as far as we are aware, has a former officeholder successfully claimed that a government staff lawyer discussing a matter relating to official business was representing the officeholder personally during a conversation had while both were government employees.

“Moreover, a consultation concerning conflict-of-interest or ethics laws is a consultation about an office holder’s official actions and obligations.”

Judge’s Footnote

In a footnote, Berzon said the result would be different in the case of a lawyer provided by the government to sue a public official or employee sued in a personal capacity.

The court did not rule on what mechanisms should be employed to segregate discoverable from undiscoverable emails in the likely event the prosecution issues a new, narrower subpoena. One approach, Berzon said, would be to have a neutral third party sort through the emails.

Judge Paul Watford and Senior Judge Raymond C. Fisher concurred in the opinion in In re Grand Jury Subpoena, 14-35434.

Gerri Badden, spokeswoman for the U.S. Attorney’s office for the district of Oregon, told The Associated Press in an email: “The investigation continues.” She declined to comment on the court’s ruling.

Kitzhaber’s attorney could not be reached for comment, AP reported.


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