By Sara Kropf
Taint teams are dubious at best. A taint team is a group of government agents or prosecutors selected to review material seized through a search warrant to determine whether any of the material is protected by the attorney-client privilege. If it is, then the team segregates the privileged material to ensure that the prosecuting team doesn’t see it.
We’ve written before about taint teams here and here.
Taint teams are intended to protect the attorney-client privilege. That’s hard to believe when the people in charge of determining whether a privilege exists are the ones most likely to find that it doesn’t exist. Prosecutors aren’t exactly known for their expansive view of the privilege, given that assertion of the privilege may prevent the government from obtaining evidence in a case.
Most judges asked to evaluate the fairness of a taint team procedure reflexively approve it. That’s what makes a recent decision from the Fourth Circuit all the more startling. The decision granted a temporary restraining order in favor of a law firm whose files were seized and were to be reviewed by a taint team. In re Search Warrant Issued June 13, 2019, 942 F. 3d 159 (4th Cir. 2019) (King, J.).
Apart from the excellent outcome, the opinion calls all taint teams into question and sets some serious, practical limitations on how they should be approved by a magistrate judge.
In sum (if you don’t want to read this long post): the Fourth Circuit stopped a taint team from reviewing materials seized from a law firm, concluding that the magistrate had “disregard[ed] the foundational principles that serve to protect attorney client relationships” and holding that this particular taint team protocol improperly delegated the judicial function of resolving privilege disputes to the executive branch.
There are a lot of good quotes, but here is my personal favorite:
We simply observe that prosecutors have a responsibility to not only see that justice is done, but to also ensure that justice appears to be done. Federal agents and prosecutors rummaging through law firm materials that are protected by attorney-client privilege and the work-product doctrine is at odds with the appearance of justice.
I’m sure other courts will limit the opinion’s reach, but the decision could be read to prohibit taint teams where the defense does not have a chance to challenge in court the privilege designation made by the taint team—before the prosecution team sees the documents. It also casts serious doubt on ex parte magistrate approval of taint team protocols without an adversarial process.
Let’s take a deeper look at the opinion.