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A judge ruled Thursday that a federal prosecution team did not "intentionally intrude" into the confidential emails between a criminal defendant and his attorneys and declined to impose sanctions.
Chief U.S. District Judge David Nuffer found that there were problems with how the team obtained a search warrant and how it processed the emails. But those mistakes don't meet the requirements for sanctions found in legal precedents, Nuffer ruled at the end of a hearing on the issue.
"This did not rise to the level of an intentional intrusion," said Nuffer, though he admitted that precedents are scarce on such cases.
Nuffer held the hearing after attorneys for indicted businessman Jacob Kilgore asked that either the case be tossed or the prosecution team be disqualified after they discovered that emails with their client had been seized.
Kilgore has pleaded not guilty and is facing a five-week jury trial beginning Nov. 16 on nine charges related to allegations that he directed sales representatives of Orbit Medical Inc. to alter or forge doctors' prescriptions and documentation to boost sales of wheelchairs and accessories paid for by Medicare and other government-sponsored health insurance programs
One of Kilgore's attorneys, Loren Weiss, took issue with Nuffer's finding that the prosecution team had not "intentionally intruded" on what is known as attorney-client privilege.
"I don't believe that intentional intrusion means that they intend to invade and use [confidential emails]," Weiss said after the hearing. "I think it means they intended to act in the way they did, and getting a warrant is as intentional an act as I can imagine."
The government served a search warrant on Google in April 2013, about three years after it began the investigation of Orbit Medical. An FBI agent obtained the warrant on the premise that emails provided by Orbit showed that Kilgore had forwarded some of them to his Google account and the government wanted to look for further evidence there.
Assistant U.S. Attorney Mark Hirata, the lead prosecutor in the Kilgore case, told Nuffer that, although the disks containing the emails sat in the desk of a paralegal at the U.S. attorney's office, no one had used them.
"I did not, nor did my co-counsel, nor did anyone at the U.S. attorney's office," he told Nuffer, denying that any "intentional intrusion" had occurred.
But Weiss said two FBI agents who are part of the prosecution team had accessed some emails and obviously had discussed them.
"This is not a case where their good faith and their word should be relied upon," Weiss said.
Because of the seizure of the emails in the Gmail account, which was set up so he could talk to his attorneys, Kilgore no longer will email or call his attorneys, Weiss said.
Nuffer suggested the U.S. attorney's office needed to tighten up the language of its search warrant requests and institute a more vigorous and independent process for filtering communication that might contain attorney-client communications.
U.S. Attorney John Huber, who sat at the prosecution table during the hearing, said his office will be analyzing and discussing the points raised by Nuffer — what Huber called "fair criticism of us."
"No case is so important that we would cash in our integrity, and those are words we live by," Huber said after the hearing.
The Kilgore-emails dispute is the second high-profile case involving seized emails between a defendant and attorneys. The case against St. George businessman Jeremy Johnson also was shaken recently by revelations that as many as 4,000 emails with his attorneys were seized by prosecutors and agents using a search warrant on a Gmail account.
Nuffer also presides over the Johnson case and has set a hearing for Oct. 29 to hear evidence about the emails in that case.