Earlier this year, we wrote about a decision from the Fourth Circuit[1] that seemed to cast doubt on the legality of taint teams. Since then, two recent district court cases affirmed the legality of the practice, but emphasized limitations on government review of privileged material. These cases, together, suggest that the days of courts rubber-stamping whatever privilege review protocol the government proposes may be over, and provide a preview for how courts will handle privilege review in the future. In both, courts set limits on filter team review, ruling that sending non-privileged material straight to the prosecution without prior review by the privilege-holder fails to adequately protect the privilege-holder’s interests.
In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means (S.D. Fla. Aug. 17, 2020).
In In re Sealed Search Warrant, prosecutors requested a search warrant for several Miami companies whose owners were accused of a decade-long money laundering plot. The Magistrate Judge approved the warrant and, during the search, the government discovered that the companies’ in-house counsel maintained an office at the location. Out of the 125,000 pages seized during the search, 7,688 pages were deemed potentially privileged. The subjects of the searches filed a “Motion to Prohibit Law Enforcement Review of Seized Materials,” arguing that the search of the company office was “the functional equivalent of a law office search.”[2] Citing the Fourth Circuit decision in In re Search Warrant Issued June 13, 2019, the subjects of the search objected to the use of a filter team, arguing that it violated the non-delegation doctrine and that the protocol proposed by the government was flawed because it did not allow privilege holders an opportunity to participate in establishing the protocol for segregating privileged documents.[3] In particular, the movants argued that the proposed protocol determination was flawed because (1) the court authorized the filter team protocol prior to the search, without knowledge of the nature of the seized items, (2) the subjects of the search had no opportunity to argue the deficiencies in the protocol, and (3) “extensive review of client communications and lawyer discussions” by government agents and prosecutors violated the attorney-client privilege, the work-product doctrine, and the Sixth Amendment.[4]
The Magistrate Judge found the case in part distinguishable from the Fourth Circuit decision because the government had returned documents from the work areas of in-house counsel without reviewing them. The court also pointed to the fact that, unlike in the In re Search Warrant case, the searched area was not a criminal defense firm and therefore did not pose the added threat that taint team members may review documents regarding separate criminal clients who they might prosecute in the future. The court, nevertheless, still found that the proposed protocol did not sufficiently protect the subjects of the search because (1) it did not adequately filter out attorney work product or communications between non-lawyers reasonably necessary for the transmission of attorney-client communication, and (2) the protocol did not “provide the movants with a mechanism for challenging the filter team’s privilege determinations” prior to disclosure to the prosecution team.
The magistrate judge, therefore, ordered a “Modified Review Protocol” that permitted the defendants “to conduct an “initial privilege review of all seized items [and] provide a privilege log to the government’s filter team[.]”[5]
On objection by the movants, the district judge affirmed the magistrate’s ruling, including the modified review protocol. The district judge found that “it is well-established that filter teams—also called “taint teams”—are routinely employed to conduct privilege reviews.”[6] He disagreed with movants that a business office should be considered the “functional equivalent of a law office” merely because in-house counsel maintained an office in its suite, and he affirmed the lower judge’s distinction between prosecutor’s search of the defendants’ business premises from a search of a criminal defense firm.
Ultimately, the court decided that the magistrate judge’s review protocol gave “proper deference to any attorney-client or work-product privileges,” pointing out that courts have set out protocols that afford an even lower degree of protection.[7]
The movants have appealed the case to the 11th Circuit and the appeal is still pending.
United States v. Satary (E.D. La. Dec. 2, 2020)
In Satary, prosecutors executed a search warrant at eight medical laboratories as part of a money laundering and Medicare fraud investigation into Khalid Satary and his corporations. The search team recovered almost 600,000 documents spanning over one million pages and including documents from at least 100 outside law firms and approximately 250 attorneys, as well as documents from the corporations’ general counsel.[8] It also recovered the contents of Satary’s personal email address.
After the interested parties objected to the filter team’s blanket production of communications to the prosecution team, the government submitted a “Motion for Discovery Protocol Governing Disclosure of Material Subject to Claims of Privilege.” The government’s proposed protocol allowed release of documents from the search deemed “non-privileged” directly to the prosecutorial team, without affording Satary an opportunity to review them or object to their release. (It was unclear whether this protocol allowed direct production of Satary’s personal email contents as well.) Satary objected to the protocol, but not to the use of a filter team generally. He argued that the proposed review method risked disclosing his attorney-client privilege and work-product privilege, as the search turned up multiple company communications with in-house counsel and outside attorneys, and the protocol did not allow objection to filter team “non-privileged” determinations prior to distribution to the prosecution team.[9]
The court agreed that Satary had a right to review documents the filter team had determined to be non-privileged before they were released to the prosecution team in any instance where he himself had “a privilege to protect.”[10] However, the court found that the corporations, and not Satary himself, maintained any attorney-client privilege in the documents seized during the search. Therefore, only the corporations had standing to pre-approve and object to the disclosure of these documents. According to the court, Satary himself was entitled to review for privilege only his own personal emails, evidence seized from his personal attorney’s office, and any personal data from Satary’s electronic devices that were seized from his business and deemed non-privileged. The court interpreted the proposed protocol as applying only to material to which Satary did not have standing to assert a privilege claim and approved the government’s proposed protocol on that basis.[11]
This decision by the magistrate judge was affirmed by the district court. In affirming, the court confirmed that Satary could “review the filter team’s privilege calls on documents it deemed non-privileged if he would have standing to assert privilege, but Satary did not have the right to review non-privileged material from third-party materials over which he did not have standing.[12]
Case Law Going Forward
Both district court cases demonstrate a reticence to reject the use of taint teams entirely, especially in instances where the search did not involve a criminal law firm. In these cases, the courts focused on ensuring protections for privilege-holders, namely through a review of filtered documents before they are provided to the prosecution team.
The magistrate judge in Satary ruled that privilege holders in the Fifth Circuit have the right to pre-review before the documents are sent to the prosecution. Similarly, the magistrate judge in In re Sealed Search Warrant upended a protocol that lacked provision for defendant pre-review or a meaningful opportunity to object prior to transmission of the documents to the prosecution team.[13] These cases suggest that defense pre-review of documents deemed non-privileged by government taint teams may become the new norm. At a minimum, defense lawyers finding themselves involved in litigation regarding a search that involves a taint team should argue for such pre-review.
As more case law emerges and parties test the boundaries of the law in this area, and in particular the conclusions of the Fourth Circuit case, the filter team practice may crystalize around a consistent, accepted standard. According to these recent cases, it appears likely that this eventual, consistent practice will require, at a minimum, an opportunity for defendants to examine and object to any filter team documents prior to their disclosure to the prosecutors. Filter teams appear to be here to stay, but as demonstrated in these recent cases, defendants may be able to chip away at the inherent injustice of taint teams by objecting to unfair review protocols.
[1] In re Search Warrant Issued June 13, 2019, 942 F.3d 159 (4th Cir. 2019), as amended (Oct. 31, 2019), http://www.ca4.uscourts.gov/opinions/191730.P.pdf.
[2] In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, No. 20-03278-MJ, 2020 WL 6689045, at *2 (S.D. Fla. Nov. 2, 2020).
[3] Initially, the defense objected to the protocol in a letter to the Government. The second letter put the government on notice of the forthcoming Motion to Prohibit Law Enforcement Review. Time-Sensitive Motion of Optima Family Companies, Mordechai Korf, Urial Laber, and Chaim Shochet to Prohibit Law Enforcement Review of Seized Materials Until an Appropriate Procedure for Review of Privileged Items is Established, at 6, In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, No. 20-03278-MJ, (S.D. Fla. Aug. 17, 2020).
[4] Id., at 15, 16. (citing In re Search Warrant Issued June 13, 2019, 942 F.3d 159 (4th Cir. 2019)).
[5] In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, No. 20-03278-MJ, 2020 WL 6689045, at *2 (S.D. Fla. Nov. 2, 2020).
[6] Id.
[7] In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, No. 20-03278-MJ, 2020 WL 6689045, at *2 (S.D. Fla. Nov. 2, 2020) (citing United States v. Parnell, No. 1:13-cr-12, 2014 WL 5106469, at *1, 2014, U.S. Dist. LEXIS 86716, at *2 (M.D. Ga. June 26, 2014) (rejecting a request that “a filter team must first release the documents to the defense before providing them to the prosecutors.”)).
[8] United States v. Satary, No. CR 19-197, 2020 WL 7086045, at *9 (E.D. La. Dec. 2, 2020).
[9] Id.
[10] Id.
[11] United States v. Satary, No. CR 19-197, 2020 WL 7086045, at *2 (E.D. La. Dec. 2, 2020).
[12] Note that the court’s orders appeared to grant the government the ability to turn over all non-potentially protected material to both the prosecution team and the defendant at the same time, but the court limited this order to the third-party material. See Id., at *3 (“It is hereby ordered that… The Filter Team shall release discovery material that is not Potentially Protected Material for production to the Prosecution Team and Defendant.”).
[13] The Louisiana District Court in Satary was less clear, seemingly leaving the door open for courts to accept protocol without a pre-review provision. In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, No. 20-03278-MJ, 2020 WL 6689045, at *2 (S.D. Fla. Nov. 2, 2020) (citing United States v. Parnell, No. 1:13-cr-12, 2014 WL 5106469, at *1, 2014, U.S. Dist. LEXIS 86716, at *2 (M.D. Ga. June 26, 2014) (rejecting a request that “a filter team must first release the documents to the defense before providing them to the prosecutors.”)).