FILED July 15, 2021 No. 19-20624 Lyle W. Cayce Clerk Harbor Healthcare System, L.P.,

Plaintiff—Appellant,

versus United States of America,

Defendant—Appellee.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18-CV-3195

Before Higginbotham, Elrod, and Haynes, Circuit Judges. Per Curiam: Harbor Healthcare System, L.P., filed a pre-indictment motion under Rule 41(g) of the Federal Rules of Criminal Procedure, seeking return of documents seized by the United States in five searches of Harbor locations and offices. After exercising its discretionary equitable jurisdiction for a time to oversee the implementation of protective processes to screen Harbor’s privileged information, the district court declined to exercise that equitable jurisdiction further and dismissed the case. Harbor appealed, seeking reversal of the district court’s decision to not reach the merits of Harbor’s motion. Because we have jurisdiction to consider this appeal and because the No. 19-20624

district court erred in its assessment of the pre-indictment harm resulting from an allegedly unlawful seizure of privileged material, we REVERSE and REMAND. I. Harbor became the subject of two qui tam lawsuits—filed in 2014 and 2016—alleging violations of the False Claims Act, 31 U.S.C. §§ 3729–3733. As part of its investigation into the allegations of those qui tam lawsuits, the United States Department of Health and Human Services, Office of Inspector General issued a “Request for Information” regarding certain patients from Harbor. The Civil Division of the Department of Justice then issued a Civil Investigative Demand to Harbor in March of 2017, seeking documents and answers to interrogatories. Harbor responded to the demand in April of 2017, producing those documents and answers to the interrogatories. Eric Sprott, Harbor’s Director of Compliance, coordinated Harbor’s response to the Request for Information and the Civil Investigative Demand. Sprott hired Justo Mendez—a solo practitioner and former general counsel of Harbor—as outside counsel to assist in the response to the Civil Investigative Demand. Both Sprott and Mendez communicated with attorneys in the United States Attorney’s Office for the Eastern District of Texas and the Department of Justice regarding the Civil Investigative Demand. The Department of Justice shared the allegations in the qui tam actions with its prosecutors to investigate possible criminal activity. Prosecutors from the United States Attorney’s Office for the Eastern District of Texas sought warrants to search Harbor locations and offices. The warrants were signed by magistrate judges from the Western District of Louisiana and the Eastern and Southern Districts of Texas. The warrants

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authorized seizure of twenty-two broad categories of documents dating from January 1, 2010 to May 2017 as well as “[c]ellular telephones, [s]mart phones, iPads, tablets or other mobile electronic devices used in the course of business” and stored e-mail exchanges between Harbor employees, agents, and representatives. The government executed those search warrants on May 18, 2017. The government seized twenty-nine smartphones, twenty computers and computer hard drives, and the e-mail accounts of seventeen employees. In total, the