September 27, 2018 Practice Points

“Taint Team” or Special Master: One Recent Analysis

The parties' and court's reasoning in United States v. Gallego illustrate the thorny decisions that such cases require.

By Eileen H. Rumfelt

Following the closely watched search of the law offices of Michael Cohen, President Trump’s “fixer,” the concept of a “taint team” appeared prominently in the mainstream media and on late-night talk shows. In April 2018, the court presiding over Cohen’s case ultimately opted to forgo a “taint team” to conduct a privilege review of the documents seized from Cohen’s offices. The court instead appointed a former federal judge as special master. A court in the District of Arizona recently analyzed this issue in the context of materials seized from a criminal defense attorney’s office and also opted to appoint a special master. The parties’ and court’s reasoning in that matter illustrate the thorny decisions that such cases require.

In the case of United States v. Gallego, No. 4:18-cr-01537 (D. Ariz.), the United States obtained a search warrant for the offices of Mr. Gallego, a criminal defense attorney who had been indicted for counts of conspiracy to obstruct justice, conspiracy to commit false statements, and conspiracy to possess with intent to distribute cocaine.

The day after the government’s search of his law office, Gallego filed an emergency motion for temporary restraining order (TRO) and appointment of a special master. He sought an expedited ruling, requesting that: (1) all seized items be made available for initial defense-team review; (2) a special master be appointed to oversee that review; (3) the government be temporarily restrained from reviewing any seized documents during the pendency of the court’s consideration of the TRO; and (4) the search warrant and other documents pertaining to the search remain temporarily under seal. In support of his motion, Gallego’s attorneys pointed to the many cases in which a special master had been employed successfully, as well as others in which a government taint team proved to be problematic. Gallego’s team noted that the United States Attorney’s Manual (USAM) section 9-13.420 contemplates, among other options, the appointment of a special master in searches involving an attorney who is a suspect, subject, or target, or believed to be in possession of contraband or fruits of a crime. He argued that having a “walled off” government-review team merely “changes the identity of the government attorneys and agents who first review that information.” Def.’s Br. (Doc. 21) (citing Loren Weiss & Gregory S. Osborne, Taint Teams and the Attorney-Client Privilege, American Bar Association (Dec. 2015)). As Gallego’s attorneys argued, use of a special master better minimizes the risk of disclosure to the prosecutorial team, and protects public confidence in the administration of justice.

The next day, the court temporarily enjoined the government from reviewing the seized materials and directed the parties to confer on potential special masters.

The government responded to Gallego’s motion by arguing that the search warrant itself provided for the use of a filter team, and the FBI agents involved in the seizure were members of that team. Additionally, the filter team involved personnel from the District of Arizona, not the Western District of Texas where the case against Gallego was proceeding. The team also involved a forensics expert, who the government argued was critical to an expeditious and informed privilege review. The government expressed concern about potential delay caused by the appointment of a special master. In lieu of a special master, the government proposed that its filter team follow the following procedure for analyzing documents: (1) Materials deemed privilege are returned to Gallego’s office in a sealed container; (2) materials deemed potentially privileged or privileged but possibly subject to the crime/fraud exception are presented under seal to the court for review; and (3) non-privileged information is retained.

In reply, Gallego’s attorneys focused on need for greater care when criminal-defense attorneys’ offices are searched because of potential Sixth Amendment concerns involving their clients. Gallego’s team noted that the government’s primary authority for use of “taint teams” involved non-criminal defense attorney searches and, often, civil litigation. “Indeed, in every single case discussing the methods to be employed for the review of materials seized from the law offices of a criminal defense attorney, courts have used a Special Master.” Def. Reply (Doc. 50).

Ultimately, the court ordered the appointment of a special master and selected the magistrate judge randomly assigned to the case. Citing the importance of protecting the attorney-client privilege and the Sixth Amendment rights of Gallego’s clients, the court found that special circumstances warranted this additional protection. The court noted that “federal courts have generally ‘taken a skeptical view of the Government’s use of ‘taint teams’ as an appropriate method for determining whether seized or subpoenaed records are protected by the attorney-client privilege.’” Order (Doc. 65) (quoting United States v. SDI Future Health, Inc., 464 F. Supp. 2d, 1027, 1037 (D. Nev. 2006)). The court accordingly rejected Gallego’s proposal for an initial defense review, as well as the government’s proposed “filter team” process. It instead directed that the magistrate judge, sitting as Special Master, conduct a full review of the documents for responsiveness, privilege considerations, and application of the crime/fraud exception.

The special master in United States v. Gallego now faces the daunting task of sifting through and making important determinations as to the content of multiple seized devices covering years of a law practice’s casework. An interesting follow-up question will be how the special master implements this process, including whether it employs forensic consultants and other such experts to aid in that review.

 

Eileen H. Rumfelt is with Miller & Martin, PLLC in Atlanta, Georgia.


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