October 29, 2020 Practice Points

DOJ Creates Special Unit to Handle Privilege Documents

Defense practitioners should remain diligent to ensure that privileged materials are protected.

By Sheena Foye and James R. Wyrsch

Many times, in white-collar criminal investigations, a search warrant executed on a business results in voluminous records, both digital and paper, being seized. Due to the volume of records seized, the records are usually not reviewed on site at the time of the seizure. The mass collection of documents creates a serious risk that the government will seize and have access to materials that are protected by attorney-client and other applicable privileges. The Department of Justice’s (DOJ's) practice has been to have "taint teams" review these seized documents for privileged materials so that federal prosecutors and law enforcement on the case involving the seized documents do not inadvertently review and use privileged documents during an investigation and/or prosecution.

White-collar defense practitioners have long questioned whether these "taint teams" were adequately protecting privileged documents. Recently, courts have also extended skepticism regarding the DOJ's "taint teams" handling of privileged documents. The Fourth Circuit held in United States of America v. Under Seal, 942 F.3D 159 (4th Cir. Oct. 31, 2019), that the government's use of a taint team to review privileged documents was improper. The Fourth Circuit stated that the use of taint teams has "the Government's fox in charge of guarding the Law Firm's henhouse". The court also stated that the DOJ's current taint-teams practice violates the separation-of-powers doctrine in that it gives the DOJ, an agency in the executive branch, power to determine what is and is not privileged, which is a power given to the judiciary. Furthermore, the court took issue with the taint team being authorized ex parte without an adversarial proceeding where the law firm could have advised court about the nature of the seized material.

Does the Fourth Circuit ruling call into question the use of these "taint teams" as a whole? That question has yet to be answered. The DOJ clearly has concerns about the continued viability of these "taint teams" as it has created a Special Matters Unit to oversee new privilege teams whose sole responsibility is to review seized documents for privileges. However, the creation of a privilege team does not get rid of the concerns associated with "taint teams" and white-collar defense practitioners should not let down their guard when it comes to government control and determination of what is or is not a privilege document. For example, while these privilege teams will not have the pressure of other cases and will likely have more specialized knowledge in terms of what might be or might not be privileged, they are still employees of the DOJ, meaning, technically the "the fox still has access to the henhouse".

What can a practitioner do if they are involved in case where a privilege team or taint team might be used? First, if you believe that the government is in possession of a client's privileged materials, you must raise this issue with the court as soon as possible. Counsel should seek alternatives to a taint team or privilege team, such as the appointment of a special master, a self-review of the documents, an ex parte review by the judge, or a combination of these alternatives. Counsel could also file a motion under Rule 41 of the Federal Rules of Criminal Procedure, to compel the return of all privileged documents or a preliminary injunction to prevent review of the documents.

Sheena Foye and James Wyrsch are with Wyrsch Hobbs Mirakian P.C., in Kansas City, Missouri.

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