by Luke Cass, Michael Clark, and Matthew Hickman

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 the above circuits. A review of holdings from the Fourth and Eleventh Circuits is illustrative.

In In re Search Warrant (“Baltimore Firm”),[8] the Fourth Circuit found that a filter team’s protocol, and the Magistrate-Judge’s ex parte approval of it (without an adversarial hearing), let the government conduct “an extensive review of client communications and lawyer discussions” in a manner that disregarded the attorney-client privilege, the work-product doctrine, and the Sixth Amendment rights of the subject law firm’s clients. Moreover, the Magistrate Judge further erred by approving a protocol that impermissibly empowered the filter team to make the final privilege decision on nonprivileged documents without consulting the court or gaining the law firm’s consent.[9] Since the evaluation of privilege claims is always a judicial function, the Fourth Circuit found that the Magistrate Judge’s approval of a protocol that allowed the executive branch to collect a massive amount of potentially privileged material and then unilaterally make privilege determinations about that material was in error.[10] The filter protocol was so weak that any review of the potentially privileged material by the filter team created an impermissibly high risk of breaching the attorney-client privilege. As such, the Court of Appeals ordered that only a Magistrate Judge (or a special master) could conduct the privilege review.[11]     

Comparatively, in In re Sealed Search Warrant and Application for a Warrant by Telephone or Other Reliable Electronic Means (“In re Sealed Search Warrant”), the subject of the search requested a special master conduct the privilege review, which the Eleventh Circuit declined. The Court found no issue with a filter team being used and examined solely whether the taint team’s review protocol impermissibly infringed on the subject’s attorney-client privilege or the court’s authority to make privilege determinations.[12] It concluded that it did not, reasoning that, regardless of what was seized by the government, the protocol enacted was sufficient because it: (1) allowed the privilege holder to have the first opportunity to identify potentially privileged materials and (2) required either the privilege holder or the court to approve transmitting potentially privileged materials to the prosecution team.[13] According to the Eleventh Circuit, this protocol made it impossible for any privileged material to make its way to the prosecution team. Unlike the Fourth Circuit, the Eleventh Circuit did not delve deeply into the importance of the attorney-client privilege (or attorney work-product), the risks filter teams present to those privileges, or assess whether there were better options for the parties than the filter team, like a magistrate judge or special master. The protocol utilized by the filter team was the beginning and end of the Court’s analysis.

III. Remedies

Circuit opinions on taint team issues run the gamut. As noted, courts are not just split over the protocols filter teams use, but also on the extent to which such teams may infringe on the attorney-client privilege, the risks they pose, when they are inappropriate to use, and, most significantly to the courts’ own inherent power, whether taint teams usurp judicial authority by making unilateral privilege decisions without the court’s review or approval.

Ideally, the Supreme Court would address these issues, but that appears unlikely in the short-term. Until then, options remain to address this issue. First, courts should be reluctant, absent obstruction concerns, to address privilege issues ex parte. At the very least the privilege holder should be heard before a determination is made. Second, the DOJ should expand the use of the SMU to include the entire Criminal Division, much like the Office of Enforcement Operations does for search warrants. Second, the DOJ could update the Justice Manual by detailing: (1) when the use of a filter team is appropriate; (2) when the use of a Magistrate Judge or special counsel is necessary; and (3) what provisions the DOJ should include in its review protocols to: (a) allow meaningful privilege holder participation; (b) substantially mitigate the risk of conveying privileged material to the prosecution team, and (c) preventing the usurpation of judicial authority (by the making unilateral privilege decisions). In re Sealed Search Warrant provides a roadmap of what those protocols could look like and why they would be acceptable under every Circuit’s analysis. Implementing these policies would create greater uniformity across the country so that the privilege holder’s rights no longer vary based on geographic location.

The tension of this uncertainty affects both prosecutors and defense attorneys alike. DOJ investigations require alacrity, which makes judicial review in each instance unfeasible. At the same time, ex parte proceedings where privilege determinations are made in secret between only the court and the government should be rare and are antithetical to not only traditional due process, but the foundation of privilege itself. Likewise, the DOJ has an interest in providing clearer guidance to avoid disqualification and to preserve the integrity of its investigations and convictions.  

These uncertainties pose risks to one of the fundamental pillars of the profession. Therefore, perhaps the best option to advance the law in this area is for the ABA to create a Committee to further examine this issue and offer solutions and unbiased recommendations for how to address the issues presented by taint teams in a way that is both respectful to the privilege holders and the government until courts provide clearer, more uniform guidance on procedure and substance. Another practical matter that should be addressed is the costs of having Special Masters appointed and who should pay for them.

The Greek poet Archilochus wrote, “the fox knows many things, but the hedgehog knows one big thing.” Oxford Professor Isaiah Berlin later used this metaphor to examine cognitive styles: Foxes have different ways of handling different problems. Hedgehogs, on the other hand, focus on one specific thing, and reduce every problem to one organizing principle. Courts have observed that the inherent flaw with taint teams is that the government’s fox is “left in charge of the henhouse.”[14] Perhaps, a hedgehog, not a fox, is what is needed to resolve taint team issues: One guiding principle that ensures the safeguard of a privilege vital to liberty interests.

Footnotes

[1] See “Monaco Memo,” https://www.justice.gov/opa/speech/file/1535301/download

[2] In re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006).

[3] In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 183 (4th Cir. 2019) (emphasis in original) (citing In re Search Warrant for Law Offices Executed on March 19, 1992, 153 F.R.D. 55, 59 (S.D.N.Y. 1994) (“The appearance of Justice must be served, as well as the interests of Justice.”)

[4] See, e.g., SEC v. Rajaratnam, 622 F.3d 159, 183 & n.24 (2d Cir. 2010); Search of Elec. Commc’ns in the Acct. of chakafattah@gmail.com at Internet Serv. Provider Google, Inc., 802 F.3d 516, 530 (3d. Cir. 2015); United States v. Myers, 593 F.3d 338, 341 n.5 (4th Cir. 2010); United States v. Proano, 912 F.3d 431, 437 (7th Cir. 2019); United States v. Howard, 540 F.3d 905, 906 (8th Cir. 2008); United States v. Ary, 518 F.3d 775, 780 (10th Cir. 2008); In re Sealed Search Warrant & Application for a Warrant or Other Reliable Elec. Means, 11 F.4th 1235, 1352 (11th Cir. 2021).

[5] Justice Manual § 9-13.420.

[6] See U.S. Dep’t of Justice, Fraud Section Year in Review 2020, at 4 (Feb. 2021).

[7] Compare In re Search Warrant Issued June 13, 2019, 942 F.3d 159 (4th Cir. 2019) with In re Sealed Search Warrant & Application for Warrant by Telephone or Other Reliable Electronic Means, 11 F.4th 1235 (11th Cir. 2021).

[8] 942 F.3d 159 (4th Cir. 2019).

[9] Id. at 179.

[10] See id. at 183 (citing In re The City of New York, 607 F.3d 923, 947 (2d Cir. 2010)).

[11] Id. at 179.

[12] 11 F.4th 1235 (2021).

[13] Id. at 1251.

[14] In re Grand Jury Subpoenas, 454 F.3d at 523.

Luke Cass is a Partner, Michael Clark is a Senior Counsel, and Matthew Hickman is an Associate in Womble Bond Dickinson (US) LLP’s White-Collar Defense, Investigations, and Regulatory Enforcement team.

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