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Federal government prosecutors and agents in Utah say that while they scooped up hundreds of emails between defense attorneys and the defendant in a criminal case, they did not read them and did not violate the long-established principles of privacy that accompany such communications.
The U.S. attorney's office for Utah argues in a court filing that the case against former Orbit Medical executive Jacob Kilgore should not be dismissed or given to another prosecution team because his attorneys have failed to show a violation of the confidential attorney-client relationship known as privilege.
"The United States did not intrude — deliberately or otherwise — into the attorney-client relationship of the defendant," Assistant U.S. Attorney Mark Hirata wrote in his response to the questions raised by Kilgore's attorneys last week about the seizure of their communications with Kilgore through a search warrant to Google.
Kilgore, a co-owner and former executive at Orbit Medical Inc., was indicted in October 2013 for allegedly pushing sales representatives to alter or forge doctors' prescriptions and documentation to boost sales of power wheelchairs and accessories paid for by Medicare and other government-sponsored health insurance programs.
Kilgore has pleaded not guilty and a five-week jury trial is set to begin Nov. 16 before U.S. District Judge David Nuffer.
But last week, attorneys Eric Benson and Loren Weiss filed a motion asking Nuffer to either dismiss the case or disqualify the U.S. attorney's office in Salt Lake City from prosecuting it because FBI agents and prosecutors used a search warrant to gather up emails from a Gmail account Kilgore had set up to communicate with this attorneys.
While he praised the prosecution team's integrity, Loren Washburn, a former assistant U.S. attorney now in private practice, said that, Kilgore should not have been put into a position of having to trust the government.
"What Mr. Kilgore deserves is a system and a process that is created to make sure regardless of the integrity of the prosecutor and agent — and even if they were people who lacked integrity — the process should make it so they don't have any ability to access attorney-client communications," said Washburn. "The process here is lacking and we have to rely too much on individual integrity and that's not a good situation for a system and a process in place for every criminal prosecution we have."
The allegation of a violation of attorney-client privilege is the second to surface in recent months against the U.S. attorney's office.
The high-profile case involving St. George businessman Jeremy Johnson was shaken by revelations that as many as 4,000 emails between Johnson and his attorneys were seized by prosecutors and agents using a search warrant on a Gmail account.
In the Kilgore case, an FBI agent sought a warrant after seeing that Kilgore had forwarded some of his Orbit emails to his Gmail account.
But Kilgore's attorneys have argued that since prosecutors already possessed those same emails through Orbit, there was no reason for them to seek the same ones that had been forwarded into his private Gmail account.
Nuffer has set a hearing for next Thursday to hear arguments on the defense motions. He also is presiding over the Johnson case.
One of the similarities between the accusations against prosecutors in the two cases is whether the government established so-called "taint teams" to filter out communications between attorneys and clients so the privileged is maintained. Such teams also are called filter teams or privilege teams.
According to the U.S. Attorneys' Manual posted on the Department of Justice website, a privilege team should consist of "agents and lawyers not involved in the underlying investigation" in order to ensure the prosecution team doesn't have access to the materials.
The two FBI agents involved in the Kilgore search warrants were members of the prosecution team. But Hirata says a filter team was used to screen out attorney-client emails.
FBI Agent Todd Thompson turned the emails over to the FBI's Intermountain West Regional Forensic Computer Lab with instructions to screen out emails involving Benson, Weiss and their firm Ray Quinney & Nebeker. He later turned all the emails and other evidence over to another FBI lab that processes large volumes of materials in complex cases, also with instructions to filter out attorney-client emails.
But at least twice, Thompson and Agent Kevin Mortensen encountered potentially privileged emails after filters had been applied, in one case about 1,300 were discovered still in the FBI's evidence database, according to the documents filed by the U.S. attorney's office.
Then in January of 2014, all the emails were copied onto two CDs and provided to the defense attorneys along with other evidence, apparently with no indication that potentially privileged communications had been seized. The originals were returned to Thompson, and a paralegal in the U.S. attorney's office also kept a copy.
"Contrary to the defendant's unsupported allegations, no member of the prosecution team deliberately ignored every legal, ethical, and professional limitation, and purposefully read any privileged material contained in the Kilgore Gmail account," Hirata wrote.
The U.S. attorney's office for Utah declined to comment further on the issue. Benson also declined to comment. His reply to the government assertions is due Monday in anticipation of the Thursday hearing.