United States District Court, District of Columbia
S. CHUTKAN, United States District Judge
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.
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.
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.
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.).
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.
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.
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.
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.
does not contest the OIG's authority to issue the
February and May 2018 subpoenas. 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.
The Subpoenas Are Not Too Indefinite
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 “there are no
bounds, no direction and no limits to the ...