[authors: William Marquardt, Richard Gregorie]

Introduction

When the government acquires documentation via a search warrant or subpoena, especially one involving a law firm, there is a high probability that the information obtained may contain attorney-client privileged communications. To avoid the disclosure of attorney-client materials, the government assembles an internal team of experienced attorneys and criminal investigators, who have no interest in the matter, to review the documentation in order to protect and preserve the attorney-client privilege. This review team is commonly referred to as a “Taint Team,” or a “filter team,” and its goal is to review the information and segregate privileged material to ensure that the prosecuting team doesn’t access it.

While these Taint Teams are formed to protect the attorney-client privilege, there are fundamental, structural flaws embedded into the practice of using them, which challenge the neutrality and independence of the review process.

This paper examines the procedural weaknesses of government Taint Teams and proposes how Independent Taint Teams (“ITT”) can address those problems as well as the ways that these independent experts can provide critical support to both defense counsel and the judiciary.

One of these structural flaws is the fact that the executive branch of the government gets both the first pass at reviewing the materials and chooses which agents participate, which is contrary to constitutional protections that require issues of privilege to be settled by the judiciary. When judges are asked to evaluate the fairness of a Taint Team, they are likely to approve the team with minimal consideration of the existing structural and perceived flaws which is contrary to their obligation to maintain and preserve privilege as a judicial oversight responsibility.

Second, the government’s assembled team of prosecutors and agents may have a less expansive view of privilege, given that an assertion of privilege may prevent the government from obtaining evidence critical to their case. Further, there is a risk that the Taint Team will inevitably interact with the prosecution and/or the trial team creating the appearance of impropriety even if none exists, and these interactions could result in the accidental exchange of privileged information.

Aside from the existing structural flaws and potential prejudicial issues, there are several practical issues that exist when government Taint Teams are constructed which also weigh on the effectiveness of the process.

These issues can range from:

• a lack of available resources necessary to properly assemble and cull the available data using an acceptable eDiscovery application and the associated processes and procedures,
• inadequate supervision of the review team,
• conflicts and shifting priorities that impact the timely review of the information, and
• the limited availability of industry or subject matter experts to provide the appropriate context.

Greater Judicial Scrutiny of Government Taint Teams
As the above issues continue to be argued before the courts, the use of government Taint Teams is coming under greater scrutiny. While a recent ruling by the 11^th U.S. Circuit Court of Appeals acknowledged the use of government Taint Teams, other courts have cast a critical eye on the procedure. In 2019, the Fourth Circuit, in United States v. Under Seal, 942 F. 3D 159, provided additional insight into the use of Taint Teams and the existing protocols in place to protect attorney-client privilege. The court reaffirmed existing defense bar objections to government resourced Taint Teams including, unintended errors, the government’s tendency to adopt a restrictive review of privilege, and the perception of a conflict of interest among the general public, including jurors.

In order to address these issues in 2020, the Department of Justice created a Special Masters Unit (“SMU”). This unit focuses on issues related to privilege and legal ethics to oversee Taint Teams when reviewing privileged information. However, the government has had difficulty in building out the SMU team while the underlying problems with government Taint Teams continue.

The Independent Taint Team Provides An Answer

One alternative that is gaining acceptance is the creation of Independent Taint Teams which are made up of individuals with the requisite skills to process and review documents on behalf of the judiciary to ensure that attorney-client privilege is protected.

These ITTs provide additional protections, including:

• Addressing leaks of confidential information,
• Reinforcing the independence and impartiality of the privileged document review process,
• Offering the latest technology and eDiscovery review platforms to ensure the completeness and accuracy of the review,
• Avoiding the appointment of a special master or additional proceedings to attempt to negotiate or monitor the review process in real time,
• Providing a vehicle (web-based eDiscovery platform) to permit secondary review processes (as required), and
• The capability of reviewing other documentation as directed by the court.

While ITTs do have a financial cost greater than a government-resourced Taint Team, these costs can be covered by the government agency responsible for the information seizure or as directed by a court. For example, if the case involves defendants already under arrest or indictment, the U.S. Attorney’s Office would normally pay for the costs associated with a government Taint Team. If there is no arrest or indictment, the seizing agency, FBI, DEA, IRS etc. would be responsible.

Conclusion

Despite judicial criticism, Taint Teams will continue to be a part of the prosecution’s toolbox. However, courts have made it clear that federal prosecutors cannot disregard attorney-client privileges when a Taint Team is used to review the seized material.

J.S. Held has experienced attorneys, retired government agents, as well as financial and eDiscovery experts necessary to create an Independent Taint Team that can work under the direction of the court. An ITT can satisfy defense bar demands for independence, the prosecution’s need for experience and expertise, as well as the court’s obligation for impartiality and efficiency.

*Consultant with J.S. Held’s Global Investigations Practice.