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United States v. Hill

United States District Court, District of Columbia

June 20, 2018

UNITED STATES OF AMERICA, Petitioner,
v.
Donna M. Hill, Respondent.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN, United States District Judge

         Before the court are the United States' Petition and Amended Petition for Summary Enforcement of Inspector General Subpoena, and Respondent's Motion to Quash, or in the Alternative, for a Protective Order. For the reasons stated below, the court will GRANT in part and DENY in part the United States' petitions and Respondent's motion.

         I. BACKGROUND

         In January 2018, the United States Department of Justice Office of the Inspector General (“OIG”) initiated an investigation into alleged misconduct by Federal Bureau of Prisons (“BOP”) “employees in connection with a BOP contract award.” ECF No. 2-1 (Declaration of Greg Thompson, “Thompson Decl.”) ¶ 3. Pursuant to this investigation, the OIG requested that Respondent Donna M. Hill-an Executive Assistant at the BOP-produce the BOP-owned Samsung mobile telephone (hereinafter, “Samsung phone”) and Microsoft Surface Pro Tablet (hereinafter, “Microsoft tablet”) issued to her in connection with her employment. Id. ¶¶ 4, 6. The OIG has reason to believe that these electronic devices contain communications relevant to its investigation. Id. ¶ 5.

         Despite the issuance of two administrative subpoenas requesting the immediate production of the Samsung phone and Microsoft tablet to the OIG, Respondent refused to produce the electronic devices, asserting that she was entitled to withhold the devices because personal information is stored on them. Id. ¶¶ 6, 7, 9, 16. She maintained this position even after the OIG sent an email to her counsel, explaining that the BOP warned her that she had no expectation of privacy while operating the electronic devices. See Id. ¶ 10-13.

         On February 16, 2018, the government filed a Petition for Summary Enforcement of Inspector General Subpoena, requesting that the court order Respondent to immediately produce the BOP-owned electronic devices pursuant to the OIG administrative subpoenas. ECF No. 1 (Gov't Pet.). A week later, the government filed a Motion for Temporary Restraining Order. ECF No. 2. Under the terms of the government's proposed temporary restraining order, Respondent would be required to immediately produce the BOP-issued devices, but the government would be prohibited from searching the devices until the government's Petition for Summary Enforcement was resolved or a search warrant was properly obtained. ECF No. 2-3 at 2. Respondent then filed a Motion to Quash, or in the Alternative, for Protective Order, arguing that because she has a constitutionally protected right to her personal information on the electronic devices, she did not have to comply with the OIG's subpoenas. ECF No. 5 (Respondent Mot.).

         On March 16, 2018, this court entered a Temporary Restraining Order, concluding that (1) the United States was likely to succeed on the merits of its Petition for Summary Enforcement, (2) Respondent's continued withholding of the electronic devices would likely result in irreparable and serious damage to the OIG's investigation, (3) Respondent's alleged Fourth Amendment rights would not be violated as a result of a temporary restraining order because the OIG was temporarily prohibited from searching the devices, and (4) the public interest favored entry of the Order. ECF No. 7 (TRO) at 3-4. The court ordered Respondent to immediately produce the Samsung phone and Microsoft tablet to Senior Special Agent Greg Thompson or any other OIG Special Agent. Id. at 4. The court also ordered the OIG to “refrain from taking any action with respect to the devices, including any action to physically or remotely search the devices or otherwise physically or remotely access the devices for any purpose” until further order of the court or until a search warrant was properly obtained. Id.

         On April 27, 2018, the OIG learned that Respondent maintained possession of a third BOP-issued device-a Blackberry mobile telephone (hereinafter, “Blackberry”). ECF No. 17-1 (Second Supplemental Declaration of Greg Thompson, “Second Suppl. Thompson Decl.”) ¶ 2. The OIG has reason to believe that the Blackberry also contains communications relevant to its investigation. Id. ¶ 4. Accordingly, on May 9, 2018, the OIG e-mailed a subpoena to Respondent's counsel-whom has maintained possession of the Blackberry since February 14, 2018-requesting production of the Blackberry “FORTHWITH.” Id. ¶¶ 2-3.

         Respondent refused to produce the Blackberry absent the OIG's agreement not to search it. See ECF No. 19 (Respondent Notice) at 1. Unwilling to enter into such an agreement, the government filed an Amended Petition for Summary Enforcement of Inspector General Subpoena and for Expedited Ruling. ECF No. 17 (Gov't Am. Pet.). In the Amended Petition, the government asks the court to order Respondent to produce her Blackberry and permit the government to search all three BOP-issued devices. Id. at 8. The parties rely on the briefing submitted in support of or in opposition to the government's initial Petition to Enforce (ECF No. 1) to support and oppose the Amended Petition. See ECF No. 16 (May 22, 2018 Order), see also Respondent Notice at 1, 3.

         II. DISCUSSION

         The court's role “in a proceeding to enforce an administrative subpoena is a strictly limited one.” FTC v. Texaco, Inc., 555 F.2d 862, 871-72 (D.C. Cir. 1977). The court is to determine whether “‘the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant'” to the agency's investigation. United States Int'l Trade Comm'n v. ASAT, Inc., 411 F.3d 245, 253 (D.C. Cir. 2005) (quoting United States v. Morton Salt Co., 338 U.S. 632, 652 (1950)). The subpoenaed party bears the burden of showing that the administrative subpoena is unreasonable; a burden “not easily met.” Texaco, Inc., 555 F.2d at 882.

         Respondent does not contest the OIG's authority to issue the February and May 2018 subpoenas.[1] Therefore, the court focuses its analysis on the two remaining requirements of enforcement: that the requested information not be too indefinite and the information sought be reasonably relevant to the investigation.

         A. The Subpoenas Are Not Too Indefinite

         Respondent argues that the subpoenas are too indefinite because they “describe[] a general investigation into employee misconduct” and “[n]othing more.” Respondent Mot. at 6. She further argues that the subpoenas fail to reveal whether she “is a ‘subject, ' ‘target, ' or ‘witness'” in the investigation. Id. Because ‚Äúthere are no bounds, no direction and no limits to the ...


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