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.