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.