Powell v. United States of America

Background

Calvin Powell brought a civil-rights lawsuit concerning a 2018 search of his apartment building, his arrest, and his criminal prosecution. The opinion states that officers searched the first and second floors under a warrant but also searched part of the third floor, where they found drugs, drug paraphernalia, and cash. The criminal charges were later dismissed after the prosecution conceded that the evidence had been seized from the third floor.

Powell subpoenaed the Office of the Special Narcotics Prosecutor, which was not a party to this lawsuit, for documents connected to the warrant application. He sought notes taken by Assistant District Attorney Justin Ashenfelter while interviewing a cooperating informant, an unredacted warrant application, transcripts of proceedings concerning the application, and a privilege log describing documents withheld on privilege grounds.

Law-Enforcement Privilege

The court held that the Office of the Special Narcotics Prosecutor had shown, although only barely, that the law-enforcement privilege applied to the requested materials. This is a qualified privilege, meaning it can be overcome in some circumstances after balancing the public interest in withholding information against the requesting party’s need for it.

Powell’s lawsuit was nonfrivolous and brought in good faith, but the court found that he had not shown that the information was unavailable through other discovery. He had already obtained some relevant information in depositions and could depose two defendants who had not yet been questioned. The court also held that Powell had not shown a compelling need for the requested information because the warrant itself authorized a search only of the first two floors. The information provided by the informant therefore was not necessary to determine whether officers exceeded the warrant’s scope.

The court noted that the parties had not addressed whether defendants might have given up a privilege by relying on the informant’s information to justify the third-floor search. The court did not decide that issue.

Attorney Work-Product Privilege

The court also held that Ashenfelter’s interview notes were protected by the attorney work-product privilege. Work product generally protects materials prepared by or for a lawyer in anticipation of litigation or trial. Although the usual federal discovery rule did not directly protect the nonparty prosecutor’s office, the court held that the broader work-product doctrine recognized in earlier Supreme Court and appellate decisions could apply to a nonparty.

The notes were taken during an interview intended to obtain a search warrant and discover evidence for criminal proceedings. The court concluded that disclosure could discourage the prosecutor’s office from conducting similar investigations. Powell could obtain relevant information through other means and had not shown a substantial need for the notes or that an equivalent could not be obtained without undue hardship. The court emphasized that the conduct central to Powell’s claims occurred after the warrant was issued, not during the informant interview.

Privilege Log

The court held that the Office of the Special Narcotics Prosecutor had to provide a privilege log. Under Federal Rule of Civil Procedure 45, a person withholding subpoenaed information as privileged must identify the privilege and describe the withheld materials sufficiently for the parties to evaluate the claim without revealing the protected information. The court rejected the office’s argument that the discovery rule for ordinary parties did not apply to it because Rule 45 governs subpoenas to nonparties.

Motion to Seal and Disposition

The court granted the motion to redact and keep sealed the portions of Powell’s filing that identified the cooperating informant by name and vehicle-registration number. It found that the information was sensitive and that privacy and safety interests supported sealing it.

The court denied the motion to compel in all respects other than the request for a privilege log. It ordered the Office of the Special Narcotics Prosecutor to produce a compliant privilege log by July 17, 2022. The court granted the motion to seal.