Earlier this year, we wrote about a decision from the Fourth Circuit[1] that seemed to cast doubt on the legality of taint teams. Since then, two recent district court cases affirmed the legality of the practice, but emphasized limitations on government review of privileged material. These cases, together, suggest that the days of courts rubber-stamping whatever privilege review protocol the government proposes may be over, and provide a preview for how courts will handle privilege review in the future. In both, courts set limits on filter team review, ruling that sending non-privileged material straight to the prosecution without prior review by the privilege-holder fails to adequately protect the privilege-holder’s interests.
In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means (S.D. Fla. Aug. 17, 2020).
In In re Sealed Search Warrant, prosecutors requested a search warrant for several Miami companies whose owners were accused of a decade-long money laundering plot. The Magistrate Judge approved the warrant and, during the search, the government discovered that the companies’ in-house counsel maintained an office at the location. Out of the 125,000 pages seized during the search, 7,688 pages were deemed potentially privileged. The subjects of the searches filed a “Motion to Prohibit Law Enforcement Review of Seized Materials,” arguing that the search of the company office was “the functional equivalent of a law office search.”[2] Citing the Fourth Circuit decision in In re Search Warrant Issued June 13, 2019, the subjects of the search objected to the use of a filter team, arguing that it violated the non-delegation doctrine and that the protocol proposed by the government was flawed because it did not allow privilege holders an opportunity to participate in establishing the protocol for segregating privileged documents.[3] In particular, the movants argued that the proposed protocol determination was flawed because (1) the court authorized the filter team protocol prior to the search, without knowledge of the nature of the seized items, (2) the subjects of the search had no opportunity to argue the deficiencies in the protocol, and (3) “extensive review of client communications and lawyer discussions” by government agents and prosecutors violated the attorney-client privilege, the work-product doctrine, and the Sixth Amendment.[4]
The Magistrate Judge found the case in part distinguishable from the Fourth Circuit decision because the government had returned documents from the work areas of in-house counsel without reviewing them. The court also pointed to the fact that, unlike in the In re Search Warrant case, the searched area was not a criminal defense firm and therefore did not pose the added threat that taint team members may review documents regarding separate criminal clients who they might prosecute in the future. The court, nevertheless, still found that the proposed protocol did not sufficiently protect the subjects of the search because (1) it did not adequately filter out attorney work product or communications between non-lawyers reasonably necessary for the transmission of attorney-client communication, and (2) the protocol did not “provide the movants with a mechanism for challenging the filter team’s privilege determinations” prior to disclosure to the prosecution team.
The magistrate judge, therefore, ordered a “Modified Review Protocol” that permitted the defendants “to conduct an “initial privilege review of all...
