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Case 3:24-cr-30153-DWD Document 144 Filed 05/26/26 Page 1 of 6 Page ID
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. ) Case No. 24-CR-30153
)
DANA C. HOWARD, RICHARD )
SCOTT MYERS, and GLENN )
SUNQUIST, )
Defendants.
MEMORANDUM AND ORDER
This matter is before the Court on the Motion to Dismiss the Indictment or, in the
Alternative, to Disqualify the Prosecution Team filed by Defendant Richard Scott Myers
and joined by Defendants Dana C. Howard and Glenn Sunquist. (Doc. 80) and on the
Government’s Motion to Disclose (Doc. 115). The Court heard oral argument as to both
motions on May 14, 2026.
I. Background
In May 2023, the government obtained a search warrant authorizing the seizure of
three corporate email accounts, one associated with each Defendant. On July 24, 2023, the
FBI delivered the seized materials to the United States Attorney’s Office (“USAO”) on a
flash drive. Because the USAO had reason to believe the materials could contain attorney-
client privileged information or work product, a filter team was established. The filter
team’s role was to review the materials, segregate any potentially privileged items, and
provide only non-privileged materials to the prosecution team.
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Unfortunately, the filter process was flawed. On more than one occasion, members
of the prosecution team identified potentially privileged materials while reviewing a
database of seized materials that was not supposed to contain any privileged items. It
remains unclear how significant those flaws were or whether any member of the
prosecution team actually viewed the content of any privileged material. These issues
with the filter process form the basis of the pending motion to dismiss the indictment or
disqualify the prosecution team.
II. Discussion
Defendants contend that the filter process is inherently flawed because, under In
re Search Warrant Issued June 13, 2019, 942 F.3d 159 (4th Cir. 2019), assigning privilege
determinations to an executive-branch filter team, without prior judicial oversight,
violates separation-of-powers principles. They argue that resolving attorney-client
privilege and work-product disputes is exclusively a judicial function.
The Court disagrees. The Fourth Circuit decision is distinguishable and not controlling
in this Circuit. The Court is more persuaded by the reasoning of the Seventh Circuit in
United States v. Snyder, 71 F.4th 555 (7th Cir. 2023), rev’d and remanded on other grounds,
603 U.S. 1 (2024). In Snyder, the Seventh Circuit upheld a pre-indictment filter-team
process for a defendant’s emails, rejected Sixth Amendment right-to-counsel challenges
(because the right had not yet attached), and declined to require upfront judicial
oversight or appointment of a special master.
The Snyder Court read in re search warrant as standing for the proposition that
“once a claim of privilege is made, a court may not delegate its responsibility to resolve
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that dispute to the executive branch.” Id. at 565. In other words, the prohibition applies
only after a specific, concrete claim of privilege has been asserted as to a particular
document or communication; not to a generic assertion that privileged materials “might”
exist somewhere in a large production. The Seventh Circuit rejected any broader reading
that would require courts to act as “legal advisers to investigators” or to resolve
hypothetical legal questions “before any claim of privilege is made or any concrete
dispute arises,” because such an approach would violate Article III’s prohibition on
advisory opinions. See id. (citing E.F.L. v. Prim, 986 F.3d 959, 962 (7th Cir. 2021)).
Accordingly, Defendants’ motion directed at the filter process is premature. No
specific claim of privilege has yet been asserted as to any particular document. Without
concrete assertions of privilege, followed by a determination whether the identified
documents are in fact privileged and whether any such privileged material was actually
viewed by the prosecution team, the Court cannot meaningfully assess the filter process,
evaluate the existence or extent of any taint, or determine whether dismissal or
disqualification is warranted.
III. Recent Developments
The Court does not fault Defendants for the current lack of specific assertions. It is
the Court’s understanding that each Defendant was provided with copies of the
potentially privileged seized materials associated with his own email account only
recently. As detailed in the Government’s motion to disclose filter materials, on April 17,
2026, after resolving multiple disputes among the Defendants and after a newly assigned
filter attorney conducted an entirely new filter review, the Government was authorized
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to disclose items identified as being potentially privileged (approximately six thousand
items in total) to the respective individual Defendant. Additionally, as the Court
understands the parties’ representations during oral argument, the non-privileged seized
materials have been or are in the process of being distributed to all Defendants.
For the first time, therefore, each Defendant now possesses the potentially
privileged emails from his own business email account. The Government maintains that,
absent a valid specific privilege objection, the Defendants’ arguments as to the filter
process are without merit. Additionally, the Government contends that, absent a valid
specific privilege objection, the entirety of these materials should be made available to
each co-Defendant because they contain co-conspirator statements. As to the need for a
valid, specific privilege objection, the Court agrees. Generalized objections that the filter
process was “flawed” or that “privileged materials may exist” are insufficient. To enable
the Court to rule on the pending motion, Defendants must articulate specific privilege
objections to specific documents.
IV. Procedure for Resolving Privilege Disputes
To facilitate orderly, efficient, and protected resolution of these issues, the Court
adopts the following procedure:
1. A sealed miscellaneous case file will be opened for each Defendant. Access to each
miscellaneous case will be strictly limited to: (a) the individual Defendant to whom
the case corresponds, (b) the filter attorney from the USAO (AUSA Amanda
McQuaid), and (c) the Court. No member of the prosecution team will have access
to any of the miscellaneous cases.
On or before June 12, 2026 each Defendant shall file, under seal in that Defendant’s
respective miscellaneous case, specific objections asserting privilege or work-
product protection. For each disputed document, the objection must (a) identify
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the document by Bates number (or by another equally precise identifier that allows
the filter attorney to locate it immediately) and (b) state the basis for the claimed
privilege or work-product protection. Each Defendant shall also provide the Court
with a copy of every disputed document by filing it under seal in that Defendant’s
respective miscellaneous case. Alternatively, if the disputed documents are
numerous and filing them would be cumbersome, a Defendant may instead
provide the Court with a thumb drive containing the disputed documents for in
camera review.1
2. The filter attorney shall file a response, under seal in each respective miscellaneous
case, on or before June 26, 2026.
3. All briefing in the miscellaneous cases shall remain sealed and shall not be visible
to the prosecution team or to the other Defendants.
4. After receiving the briefing, the Court will review the disputed documents in
camera and issue a ruling in each miscellaneous case as to whether a valid
privilege or work-product protection exists.
5. If the Court determines that any document is privileged, the Court will then:
a. seek additional information from the filter attorney (via affidavit or other
appropriate means) regarding whether any member of the prosecution
team viewed the content of that specific document;
b. hold a taint hearing if necessary; and/or
c. rule on the pending Motion to Dismiss or Disqualify (Doc. 80) on the basis
of the pleadings and any supplemental submissions.
6. Once the Court has ruled on the existence of privilege for the disputed documents,
it will also address, as appropriate, the Government’s request to disclose any non-
privileged (or no-longer-privileged) materials among the co-Defendants.
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The parties previously contemplated filing copies of the entire universe of potentially privileged
documents (approximately 6,000 in total), in part to ensure that each Defendant would have access to his
own documents. However, each Defendant already possesses his own documents. Moreover, the Court
need only review those documents for which a specific privilege objection is being asserted. Therefore,
there is no need to burden the Court, or the filing process, with copies of all documents that have been
flagged as “potentially privileged.” It is sufficient to provide the Court with copies of the documents as to
which objections have been raised.
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This process will allow the Court to resolve the privilege disputes efficiently while
protecting any legitimate attorney-client or work-product interests and while
maintaining the integrity of the prosecution team’s separation from the filter process.
SO ORDERED.
Dated: May 26, 2026
DAVID W. DUGAN
United States District Judge
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