The Department of Justice Criminal Division Fraud Section has quietly created a new privilege team. This is a departure from the traditional practice of using so-called “taint teams” – assigned agents and prosecutors not involved in the investigation — to review materials that may have been subject to a privilege. While it is unknown why the privilege team was formed, it is likely a consequence of a series of judicial opinions wherein the DOJ has been criticized for its handling of privileged materials, including in United States v. Philip Esformes, where the Court found that the government’s taint protocol had serious deficiencies. A designated privilege review team may have benefits for the defense. It certainly will benefit the Government and potentially help it to avoid further criticism from the courts as to its handling of privileged materials.
Traditionally, the DOJ used taint teams to review potentially privileged materials. These taint teams were made up of agents and prosecutors not working on the underlying investigation. The taint teams were usually assigned to review materials seized or obtained that likely contained privileged materials, such as materials from corporations, law offices, and/or email servers. The prosecutors handling the underlying matter were tasked with instructing the taint teams, who in turn were supposed to isolate the privileged material for discussions with counsel representing the privilege holder and potential litigation related to the privilege. The remaining materials were then turned over to the Government.
Defense attorneys have always been opposed to the use of taint teams. Because the relationship between prosecutors handling the underlying case and taint team is so closely connected, it provides good cause to believe the sanctity of the privilege would not be respected. Moreover, the close relationship between the prosecutors and taint teams often led the teams to make very narrow privilege decisions.
In recent years, the DOJ Fraud Section has come under increasing scrutiny in high profile cases for its handling of privileged materials. Particularly, in United States v. Esformes, agents seized materials from a lawyer’s office during the execution of a search warrant. U.S. v. Esformes, Case No. 16-20549-CR, 2018 WL 5919517 (S.D. Fla. Nov. 13, 2018). Despite being warned that agents were searching a lawyer’s office, agents proceeded in the search without the use of a taint team. Case agents – not taint agents – placed some privileged materials in taint boxes. However, hundreds of documents marked privileged and confidential were turned over to the prosecution team. The Court declined to dismiss the case, but ruled that the prosecution team’s “execution of their duties was often sloppy, careless, clumsy, ineffective, and clouded by their stubborn refusal to be sufficiently sensitive to issues impacting the attorney client privilege.”
United States v. Esformes is not the only case wherein the Government’s handling of privileged materials has been criticized. When the Government raided the law offices of Michael Cohen – President Trump’s longtime personal attorney and “fixer” – pursuant to the investigation of Russian interference in the 2016 election, the Parties litigated whether a taint team could review the seized records and devices. In the end, the Government agreed to appoint a special master to review the materials seized for privilege.
Now, the use of a dedicated privilege review team will possibly create more experience in spotting privileged materials that may have been missed in the past by taint teams. Additionally, a dedicated team might not be as worried about deadlines on other cases and can focus on a thorough review. However, the dedicated team works still for the Government and will likely have close relationships with prosecutors handling underlying cases. As such, defense attorneys should remain vigilant. If you believe the Government has seized privileged materials, notify the Government immediately and object. This notice should be memorialized in writing. Defense counsel should also identify what materials are privileged, assert the privilege, and demand to review the documents before any single document is turned over to case agents or prosecutors. If prosecutors do not respond, seek relief from the court.