Corporate criminal enforcement is a top priority for the Department of Justice.1 As the number of corporate search warrants rise, so does the government's use of taint, or filter, teams. A wave of recent caselaw addressing the procedure, role, and handling of taint teams along with potentially privileged material has varied among the circuits, leaving in its wake dramatically unsettled law.
This article discusses what taint teams are, recent circuit splits about them, and how the Supreme Court, the DOJ, and the ABA can, and should, address issues that impact one of the oldest privileges in western jurisprudence.
I. Taint Teams
Taint teams review seized documents for privileged communications and attorney work-product before the documents are transmitted to the prosecution team. The inherent flaw with this system is that "the government's fox is left in charge of the henhouse."2 This is not just a theoretical flaw. The government's use of taint teams reveals a history of shortcomings, including accusations of leaking privileged material to prosecutors and otherwise using the privilege-holder's protected materials against them. To mitigate these risks, taint teams must establish a review protocol; however, even if a taint team has an adequate protocol to prevent the transmission of privileged material to a prosecution team, the optics of the government having access to privileged information is concerning. Courts are not insensitive to this. As the Fourth Circuit opined, "prosecutors have a responsibility to not only see that justice is done, but to also ensure that justice appears to be done."3
Nonetheless, all federal courts, regardless of circuit, appear to accept the government's use of taint teams in all but the most extreme cases (such as when a law firm is the subject of a search warrant and most seized documents arguably are privileged); however, there is no bright line rule for what constitutes an extreme case.4 Likewise, courts continue to debate when a taint team protocol sufficiently protects the privilege-holder's rights. Thus, challenging the government's use of taint teams (or the protocol utilized) must be tailored to fit the caselaw of each individual circuit. As highlighted below, no two circuits are the same. Some are more likely than others to appoint a Magistrate Judge or special master to conduct the privilege review, others rely heavily on taint teams and give them a wide berth, while some endorse the use of taint teams generally, but keep them on a tight leash.
In recent years, the Justice Department has taken steps to address taint-team issues. The Justice Manual provides guidance to federal prosecutors to minimize potential intrusions to the privilege,5 and in 2020, the DOJ's Fraud Section founded a Special Matters Unit ("SMU") to litigate taint team issues; however, this guidance is limited.6 The Justice Manual's guidance applies to searches of attorney's offices, while only SMU is only available to the Fraud Section.
II. The Opacity of Taint Team Jurisprudence
Privileged communications should not be treated differently simply by virtue of circuit geography. However, that is one consequence of current taint team jurisprudence. In assessing taint teams and their protocols, some circuits, like the Fourth, are openly suspicious and more critical of filter protocols, while others, like the Eleventh, are more tolerant of taint teams and more deferential to their protocols.7 The fact-specific nature of challenging a taint team's protocols could lead to opposite outcomes for two factually identical cases if filed in each of...
