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FBI agents didn't filter out attorney email addresses, law firm Internet domain names or the names of associate attorneys and support staff when processing emails seized from the accounts of indicted St. George businessman Jeremy Johnson, according to testimony in federal court Thursday.
And an agent on the team prosecuting Johnson said he went through a database that contained emails even before those involving at least two of Johnson's attorneys were filtered out.
The agents testified Thursday at a federal court hearing called to gather evidence about whether the prosecution had access to, or read, private emails between Johnson and his attorneys after gathering them up through a sealed search warrant.
Communications between attorneys and their clients are considered privileged in the U.S. legal system, meaning they are normally supposed to be private, so prosecutors, investigators and outside parties are not to have access to them.
But in Johnson's case, where he and three other officers in his online marketing company face charges related to bank fraud, the FBI used a May 17, 2013, search warrant to obtain emails from Johnson's Gmail accounts, including thousands between Johnson and his attorneys.
FBI Special Agent Randy Kim, who works at the agency's local computer forensics lab, said after receiving the emails from a member of the prosecution team he filtered out those that contained the names of attorneys from a list provided by another agent. But under questioning from Johnson attorney Rebecca Skordas, Kim said he filtered out emails using names only.
"So if there were email addresses associated with these individuals, you didn't do a search of those addresses?" Skordas asked.
"Correct," Kim responded, answering the same way when asked about the domain names of law firms and names of others associated with those firms such as paralegals.
Skordas is expected to file a motion to dismiss the case based on assertions the team of prosecutors and investigators violated Johnson's attorney-client privilege by gathering and then having access to thousands of his emails with attorneys.
FBI Special Agent Jason Henrikson, who obtained the warrant that sought evidence of alleged witness tampering by Johnson, testified that he was aware that the search warrant would gather up all Johnson's emails from those accounts, including ones with attorneys.
Henrikson said he provided Kim with discs from Google and a list of attorneys for filtering that he had obtained from the U.S. attorney's office for Utah, but also said he had looked through the database before Kim had added in the names of two attorneys.
"So you were searching the database before the names of Rodney Snow and Ron Yengich were added?" Skordas asked.
"I think I was," the agent replied.
Agents and prosecuting attorneys have said they did not read privileged emails.
Assistant U.S. Attorney Robert Lunnen pressed Pamela Lindquist, an investigator who worked with Yengich when he represented Johnson, over whether she might have violated a court order not to disclose evidence when she wrote an affidavit about the emails that Johnson filed in a Nevada civil case brought against him by federal regulators. Lindquist said she believed the affidavit would be filed under seal and not available for public access, but the judge had apparently unsealed it.
The questioning of Lindquist brought about the most drama of the hearing when attorney Marcus Mumford started to object to a question Lunnen had posed.
Mumford, who represents another defendant and who now employs Lindquist, started to state his objection when U.S. Magistrate Judge Paul Warner cut him off, saying the attorney was not allowed to participate in the hearing.
Mumford persisted.
"Mr. Mumford I think I was clear this is not your hearing," Warner said.
Still Mumford kept trying to object before Warner called U.S. Marshals to the courtroom; Mumford then sat down.
Warner gave Skordas until Nov. 23 to file a brief in the case. Prosecutors will have several weeks to respond before the judge makes a decision.