When the government executes a search warrant in a white-collar case, it may seize documents that are protected by the attorney-client privilege. As I’ve posted before about this issue, the government will often assert that a “taint team” should review the documents for privilege and then turn over non-privileged documents to the trial team.
A “taint team” is a group of government attorneys who are not involved in the investigation of the underlying matter and are assigned only to review seized documents for privilege. The taint team will review the documents and then provide non-privileged documents to the trial team and return privileged documents to the party from whom they were seized. The prosecutors who are working on the underlying investigation and prosecution are usually referred to as the “trial team.”
This issue can also arise when the government receives documents pursuant to a subpoena or voluntarily, although it is less common.
In most cases, the defendant opposes the use of a taint team, because allowing the government to review any privileged documents undermines the privilege and runs the risk that documents will inadvertently, or deliberately, be shared between the taint team and the trial team.
But in a recent case in the Middle District of Georgia, the defendants are urging the court to order the government to use a taint team. What brought about this remarkable situation?
The Charges
Stewart Parnell, a former director of the Peanut Corporation of America (“PCA”), and several other PCA defendants were charged on a 76-count indictment. In a nutshell (pun intended), the defendants stand accused of helping PCA mislead its buyers and fraudulently sell contaminated peanuts. They were charged with conspiracy, introduction of adulterated food into interstate commerce with intent to defraud or mislead, introduction of misbranded food into interstate commerce with intent to defraud or mislead, interstate shipments fraud, wire fraud, and obstruction of justice.
Trial is set for July 14, 2014.
Production of Documents by Bankruptcy Trustee
After the government began investigating PCA, the company filed a Chapter 7 bankruptcy petition. As part of the bankruptcy, the corporation’s bankruptcy trustee waived attorney-client privilege with respect to issues related to the bankruptcy. The government requested that the trustee voluntarily produce documents in early June 2014, and the trustee did so.
The Defendants’ Motion
Six days later, the defendants responded with a motion to preclude the government from obtaining any potentially privileged documents from PCA through the trustee. The defendants requested that the government cease and desist from reviewing the documents without using a taint team. In particular, the defendants were concerned because the documents were provided voluntarily to the trial team, not to a taint team. The motion made no mention of the bankruptcy proceeding or the trustee’s waiver of the privilege.
The Government’s Response
The government’s submitted two motions in response. First, the government opposed the defendants’ motion, claiming that the defense’s motion omitted material facts. The government explained PCA’s Chapter 7 status and the subsequent waiver of attorney-client privilege. It stated that because of the trustee’s waiver,
There is no risk that any individual attorney-client privilege will be violated.
The government also said that it would use a taint team to review the documents.
Second, a few days later, the government asked for a hearing on the defendant’s motion. In their motion for a hearing, the government went on to make two additional arguments. The government first complained that the defendants failed to present authority for its taint team request. It next argued that the issues were moot because of the existing review process that would use a taint team.
And the Defendants’ Reply
Three days later, the defendants filed its response to the government’s motion. They pointed out that there was a joint defense agreement among the defendants (including PCA), which affects what may or may not be disclosed. Under the agreement, each defendant only has the ability to waive the privilege over his or her own communications with the group.
To waive the privilege as to joint communications, a unanimous waiver would be required. Therefore, defense counsel argued, PCA’s trustee’s waiver alone was not enough to waive the privilege.
Moreover, defense counsel contended that the government’s taint team procedure did not moot the issue. The government proposed that after the taint team’s review, both sides would examine the documents at the same time. The defendants responded that this would not fix the problem:
To date, the government’s position on this issue appears to be that the government and defense counsel should be granted access to the materials simultaneously after the taint team completes a review. The taint team, however, is not adequately equipped to assess whether certain documents may or may not be subject to the restrictions of the joint defense agreement. Therefore, if any documents are to be produced, they must first be collected by the taint team and then provided to the defendants for a preliminary privilege review.
The Court’s Decision
The following day, the court heard arguments from each side and ultimately decided in the government’s favor. The judge was swayed by the prosecutor’s argument that the defense presented no authority in asserting that the government should provide the defense a preliminary opportunity to review the material. The judge’s order also pointed out that the defendants failed to show authority supporting its claim that the government’s taint team procedures were improper or violated the defendants’ rights.
The judge gave the prosecution leave to use the same taint team it had before, provided that the defendants show the taint attorneys a copy of the joint defense agreement. That way, the taint attorney could try to make the correct call as to which documents could still be subject to attorney-client privilege.
There’s Still a Problem Here
This case is a good example of the many problems with taint teams. There is simply no way for a government lawyer unfamiliar with the joint defense agreement or with all of the theories of the case, can adequately identify privileged materials. It is the job of defense counsel to aggressive defend the privilege and to leave that critical job in the hands of a prosecutor—even one who is “independent”—undermines the privilege at every turn.
The decision also raises an interesting issue with respect to the disclosure of a written joint defense agreement. Defendants do not want to produce these agreements to the government for fear that they could be used by an aggressive prosecutor as evidence of a conspiracy. The defendants here must produce the joint defense agreement to protect the privilege. But it is not clear from the judge’s order whether the government is precluded from using the agreement at trial as evidence of a conspiracy.
I hope the defendants will file a motion in limine to protect this document from coming into evidence at trial.