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.
The Search of a Baltimore Lawyer’s Office
I’m going to spend a bit of time on the facts because (1) they are interesting, and (2) later courts will no doubt rely on these unique facts to limit the decision’s reach.
First, the players (kept anonymous by the opinion):
“Law Firm”: A Baltimore law firm
“Lawyer A”: a lawyer at the Law Firm who represented Client A
“Client A”: client of Lawyer A, who is also a Maryland lawyer
There were two important allegations by the government in the case.
First, Client A “was suspected of assisting drug dealers in illicit activities, including money laundering and obstruction of government investigations.”
Second, according to the government, its “investigation of Client A was obstructed by Lawyer A, and the relationship between Lawyer A and Client A triggered application of the crime-fraud exception to the attorney client-privilege and work-product doctrine.”
Based on its belief that Lawyer A had obstructed its investigation, the government began an investigation of Lawyer A.
[An aside: This case is the stuff of a criminal defense lawyer’s nightmares. Lawyer A regularly defends clients in federal prosecutions brought by the Maryland USAO, and Lawyer A was being investigated by the Maryland USAO. Was Lawyer A targeted in part because of the lawyer’s zealous advocacy?]
Based on the affidavit of an IRS agent, the magistrate judge issued a search warrant for the Law Firm and authorized seizure of documents related to Lawyer A’s representation of Client A. In theory, then, the search warrant was quite limited in scope.
In theory.
Searches of lawyers’ offices require a higher-than-usual approval within the Department of Justice. If you want to read more about that approval process, check out our post about the search of Michael Cohen’s office.
The magistrate judge also took another step. She authorized a taint team—called the “Filter Team” in the opinion. The government had submitted a suggested Filter Team protocol with the search warrant application. All of this was done ex parte, meaning that the defense did not know about the protocol and had no way to respond or object to it.
The Filter Team process, in a nutshell:
- The Filter Team members worked in the Greenbelt, Maryland USAO office; the Prosecution Team worked in the Baltimore, Maryland USAO office.
- The Filter Team would review and segregate privileged materials.
- The Filter Team would forward nonprivileged materials directly to the Prosecution Team.
- Privileged materials were divided into three categories: (a) privileged materials that could not be redacted; (b) privileged materials that could be redacted; (c) “potentially privileged” materials, such as privileged materials that might fall within the crime-fraud exception.
- The Filter Team would provide copies of categories (b) and (c) to counsel for Lawyer A and try to reach agreement. If they couldn’t reach agreement, then it would go to the court.
- The Filter Team could seek a waiver from the Law Firm client holding the waiver and, if the Filter Team obtained this waiver, then it could forward the privileged materials to the Prosecution Team.
The IRS and DEA team—all Filter Team members—executed the search warrant on June 18, 2019, at the Law Firm. They seized the contends of Lawyer A’s phone, Lawyer A’s computer, Lawyer A’s emails, Lawyer A’s handwritten notes.
Notably, the government seized 37,000 emails in Lawyer A’s inbox. Only 62 of them were from Client A or had Client A’s last name. They seized 15,000 emails in Lawyer A’s “sent items” folder. Only 54 of them had been sent to Client A or had Client A’s last name in them.
During the execution of the search warrant, the Law Firm requested that the agents first search for Client A’s name and take only those documents—the agents refused to do so and took everything.
At some point, the Filter Team asked the Law Firm to provide it with a list of all of its cases pending before the Maryland USAO to ensure that no one on the Filter Team was working on those matters. The Law Firm declined to respond to this request.
On June 21, 2019, counsel for the Law Firm sent a letter to the USAO notifying it that it had seized privileged materials and demanding their return so that the Law Firm could conduct a privilege review itself, which it would had done had the government proceeded by subpoena rather than search warrant. The Law Firm requested that, alternatively, the government permit the magistrate judge or the district court judge to conduct an in camera inspection of the materials, instead of the Filter Team.
The government didn’t respond to the letter.
Five days later, Client A moved for relief from the Filter Protocol. The district court (Judge Liam O’Grady, sitting by designation from EDVA because all of the District of Maryland judges recused themselves) ordered that the seized materials be delivered to the district court. Two days later (10 days after the warrant was executed), the Law Firm moved for injunctive relief, seeking a TRO and a preliminary injunction, and for the return of the materials under Rule 41(g).
Following a hearing on a July 10 hearing, the district court denied the motion. It said that the Law Firm had been “delayed” in coming to the court for relief (huh?), that the Filter Team could be “neutral,” that there was no evidence of “irreparable harm” to the Law Firm, that the Filter Team was operating under the “court’s direction,” that the Law Firm needed evidence that there was a breach of the Filter Team’s ethical duties and this “rarely occurs.”
The district court did throw a bone to the defense after the hearing, ordering that the Filter Team could not forward what it deemed to be nonprivileged material directly to the Prosecution Team. It first had to run it by the defense.
The Fourth Circuit Steps In
The Fourth Circuit almost immediately granted some relief to the Law Firm. It ordered that the government halt its review pending the appeal. It also expedited briefing and ordered the government to respond to specific arguments in the Law Firm’s briefing, notably whether the “judicial functions had been improperly assigned to the Filter Team.”
The Fourth Circuit wasn’t joking around. It heard arguments on September 10 and issued a reversed the district court’s order (in an “Interim Order”) on September 12.[1] The full opinion was issued on October 31, 2019. It was apparently channeling the EDVA Rocket Docket.
The opinion is by Judge King. The panel including Judge King, Judge Gregory and Judge Rushing.
Irreparable Harm
The Fourth Circuit concluded that the Law Firm had submitted “unrebutted evidence” that government seized all of Lawyer A’s emails even though 99.8% of them had no mention of Client A and that many of Lawyer A’s other Law Firm clients were under federal investigation.
As a result, the district court did not grapple with the harm that was likely to be inflicted on the Law Firm and its clients from the Filter Team’s review of many of the seized emails. It thus abused its discretion in that respect.
The district court’s failure to consider this evidence of harm “compounded other errors of law that the court made with respect to the irreparable harm factor,” in part by “giving short shrift to the important legal principles that protect attorney-client relationships.”
The court of appeals described the importance of the attorney-client privilege in some detail, noting in particular that it (and the work-product doctrine) “joint support the Sixth Amendment’s guarantee of effective assistance of counsel.”
The Fourth Circuit explained that when these “pertinent legal principles” are applied, the Law Firm and its clients were harmed and the harm was irreparable. The Filter Team’s review “cannot be undone.” It could also cause other harm such as making clients less likely to seek to retain the Law Firm and causing current clients to be hesitant to confer openly with the Law Firm.
Likelihood of Success
Even though the district court did not address it, the Fourth Circuit addressed whether the Law Firm was likely to succeed on the merits of its argument that the magistrate judge—and not the Filter Team—should conduct the privilege review.
It concluded that the Law Firm was likely to prevail.
The district court committed several errors in approving the Filter Team protocol.
First, it “assign[ed] judicial functions to the Filter Team” (Filter Team = the executive branch).
- The resolution of a dispute over privilege “is a judicial function.”
- This error was “compounded” by delegating these functions to nonlawyers on the Filter Team.
- “There is the possibility that a filter team—even if composed entirely of trained lawyers—will make errors in privilege determinations and in transmitting information to the prosecution team.” It cited a recent case from the District of Maryland (United States v. Elbaz), in which the filter team improperly disclosed thousands of potentially privileged documents to the prosecution team.
- There can be serious differences of opinion about what is privileged and a filter team’s members may have a “more restrictive view” of privilege given their “prosecutorial interests.”
Second, the district court erred when it “authoriz[ed] the Filter Team and its protocol in ex parte proceedings” conducted before the search.
- It was done before the magistrate judge was fully informed about what had been seized. The judge “may well have rejected” the Filter Team protocol if she had known that 99.8% of the emails seized had nothing to do with Client A.
- Although it did not hold that an adversarial process is a per se requirement before a taint team is approved, the Fourth Circuit said that the magistrate judge “should have conducted adversarial proceedings” on the protocol.
- It noted that the procedures followed by DOJ in the Michael Cohen case were “sensible.”
Third, the district court “fail[ed] to properly weigh the foundational principles that protect attorney-client relationships.”
- The magistrate judge (and district court judge) “gave no indication that she weighed any of the important legal principles that protect attorney-client relationships.”
- Instead, the protocol allowed the government to “rummage through” Lawyer A’s emails even though most of them concerned other matters. (I really dig the court’s use of the word “rummage” throughout the decision; it is wonderfully descriptive.)
Requests for Waiver of Privilege
The Fourth Circuit also strongly admonished the prosecutors for seeking the provision in the protocol that allowed them to contact the Law Firm’s clients ex parte and seek waivers of the privilege.
This, according to the court, could run afoul of the rules of professional conduct since the clients are represented parties. At a minimum, there must be an “individualized assessment” of the situation before such ex parte communications are permitted.
The money quote:
By asking the Law Firm to furnish the Filter Team with a client list — which could be used by Filter Team members to directly contact clients and seek privilege waivers under the Filter Protocol — the government demonstrated a lack of respect for the attorney-client privilege and the Firm’s duty of confidentiality to its clients. In declining to reveal a client list to the Filter Team, the Law Firm relied on its ethical obligations to protect confidential and privileged information relating to its clients.
Equities Weigh in Favor of Injunction & the Public Interest
The Fourth Circuit didn’t spend much time finding that the defense had met the other elements of the preliminary injunction standard.
First, there was no credible harm to the government by preventing it from “rummaging through Law Firm materials that are unrelated to the underlying investigation.” The harm to the Law Firm and its clients easily outweighed any possible harm. Nor did the court give any credence to the government’s argument that it would delay the investigation, chiding the government that it should have been “fully aware that use of a filter team in these circumstances was ripe for substantial legal challenges.”
It also rejected the district court’s position that the Law Firm had delayed in bringing the matter to the court since the government was the one that had failed to respond to the defense’s efforts to resolve the matter amicably.
We do not fault the Law Firm for seeking a negotiated resolution of these important disputes before requesting court intervention. And we will not reward the government for ignoring those efforts.
Finally, there is a strong public interest in granting this injunctive relief. It protect the “integrity of the judicial system” and avoid the appearance of unfairness to the Law Firm’s other clients. The opinion managed to quote the Sixth Circuit’s opinion that the filter team gave the appearance of the fox guarding the henhouse.
It explained that there was an additional concern about the appearance of unfairness since the Filter Team was made up of agents and prosecutors in Maryland where many of the Law Firm’s clients were being prosecuted. The government “has never disclaimed an intention to use the plain-view doctrine in connection with the Filter Team’s access to the materials seized from the Law Firm.”
How Can the Government Defend This Process?
The Fourth Circuit couldn’t quite believe that the government defended this particular protocol. That’s not hyperbole. The court said
[I]t is surprising that the government has so vigorously supported it.
Yes, this opinion will create some uncertainty around how USAOs review the fruits of a search warrant. Yes, it will create some more work for magistrate judges.
But perhaps it will also create some hesitancy among prosecutors to use a search warrant when a subpoena will do. Given the upheaval that a search warrant causes for a company, or an individual (imagine the government taking your phone and computer right this moment–with no notice), then DOJ should think hard about using one.
The court reminded the government that prosecutors “have a responsibility to not only see that justice is done, but to also ensure that justice appears to be done.”
That was not done here.
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[1] This opinion uses an excessive number of capitalized defined terms (hereinafter “Defined Terms.”).