The government subsequently filed a motion for an order to establish a procedure for reviewing the seized material, proposing the use of a walled-off taint team of attorneys and support staff. The government’s proposal would have allowed the taint team to review and separate the seized materials into three categories: (1) privileged materials; (2) non-privileged materials; and (3) materials that may or may not have been privileged. After returning the privileged materials to KVK, the taint team would then provide the non-privileged materials to the prosecution without further input from KVK. The materials of ambiguous designation in the third category would be subject to review by defense counsel and adjudication by the court with respect to any resulting disputes between the parties. In response, KVK filed a motion to compel the government to return the seized documents and enjoin the government’s use of a taint team outright.
The court, stressing the importance of attorney-client privilege and the attorney-work-product doctrine while citing past examples of prosecutorial abuse of search warrants, considered the government’s taint team proposal “fatally flawed.” The government’s desire to use the taint team to make unilateral privilege determinations “without any opportunity for the defendant to mount a challenge” not only implicated separation-of-powers concerns, as the taint team—an instrument of the prosecution—stood to assume the “judicial function of deciding what documents are privileged and what documents are not privileged,” but also threatened the significant interests of KVK in protecting privileged content.
At the same time, the court refused to entertain KVK’s demand to return materials that the government had seized in accordance with properly issued search warrants. Nor would the court bar the government’s use of a taint team entirely, expressly recognizing the use of a taint team as a “common tool” of the government in efficiently reviewing documents, avoiding investigative delays and otherwise facilitating the resolution of an action.
Instead, the court emphasized that district courts ultimately have discretion in deciding which document-review procedures should be used to meet the particular needs of the case at hand. The court accordingly prescribed a procedure permitting the government’s use of a taint team while restraining its function:
- The government would first allow KVK and its counsel to review the seized material and advise the taint team as to which content it considered privileged, with any material deemed to be non-privileged rerouted to the prosecution;
- The taint team would then review the defense-designated privileged material, and, if the team agreed with KVK’s determination, return the privileged material to KVK; and
- Any material as to which there was a dispute would be referred to a court-appointed special master, with the court granting the parties a measure of input over the special master’s appointment.
This approach, the court observed, would accommodate the needs of the government, advance efficiency interests, and protect KVK-Tech, Inc.’s interest in its privileged materials.
When it comes to the review of privileged material in criminal proceedings, parties should be careful about proposing procedures that undermine fundamental principles or endanger protected interests. Taint teams are here to stay, but the government should be wary of aggrandizing its role, and defense counsel should be watchful for prosecutorial overreach, lest the court step in.