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.
Continue Reading DOJ ‘Taint Team’ Practice Affirmed but Protocols Questioned
Jim Brochin
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DOJ ‘Taint Teams’ Pose Privilege Risks for Defendants
By Patrick Linehan & Jim Brochin on
Posted in Criminal Procedure, Investigation Process Issues
The following article was originally published in Law360 on July 29.
To address the issues surrounding the incidental seizure of privileged communications within a broader seizure of electronic data, the U.S. Department of Justice recently created a new Special Matters Unit within
the Fraud Section.
The unit will function as a specialized team to address…