columnsOn May 17, 2021, we discussed the reality that lawyers – namely, Rudy Giuliani – are not immune from searches by federal agents. In that post, we touched on the Department of Justice’s use of “taint teams,” lawyers and federal agents tasked with screening items seized by search warrants to protect privileges. Despite their routine use, taint teams often create issues related to protecting privileged documents. On August 30, 2021, the United States Court of Appeals for the Eleventh Circuit opined for the first time on using taint teams in In re Sealed Search Warrant and Application for Warrant by Telephone or Other Reliable Electronic Means, Case No. 21-14223. The Court held that taint teams are an acceptable means to filter privileged materials from seized materials at least where the subject of the search warrant has an initial opportunity to review potentially privileged materials. As a result, the Eleventh Circuit deepened the divide among the federal circuits’ views concerning proper taint team procedures.

Privilege Review [T]ain’t That Simple

In any litigation, reviewing materials for privilege is an important step in the discovery process. The privilege review protects materials subject to various documentary privileges including the attorney-client privilege and the work product doctrine. In criminal investigations and government enforcement matters, it is essential that privilege reviews capture and protect all documents subject to these privileges. Producing privileged documents could lead to litigation over whether the producing party intended to waive privilege and, ultimately, subject the producing party to consequences, such as the production of additional documents, depending on the nature of the disclosure.

Privilege reviews usually occur before production of materials by the producing party’s attorneys.  When the government enters a person’s home or business with a search warrant, however, the government usually will not wait for the searched person or business to conduct a privilege review. Instead, the agents will seize materials within the scope of the search warrant regardless of whether they are privileged. The seized materials include not only documents, but often also includes computers and electronic storage devices like external hard drives which could contain communications with counsel concerning legal advice, memoranda prepared in anticipation of litigation, and other clearly privileged documents that would never be produced in a run-of-the-mill civil document production.

The government commonly uses taint teams to filter out privileged documents from search warrant returns. A taint team consists of federal agents and attorneys not involved in the underlying investigation or resulting potential prosecution usually conducts that review. The taint team, which is instructed to not disclose the contents of any privileged documents to the prosecution team, filters out privileged documents, and then provides the non-privileged documents to the prosecution team. The rub is that the taint team still consists of federal agents and attorneys employed by the government, giving rise to potential conflicts, and who may not recognize privileged materials before turning them over to their colleagues.  For this reason, several federal circuits have developed guardrails to protect privilege reviews of search warrant returns; these tests, however, are far from uniform, giving rise to uncertainty and disparate treatment depending on where in the country a search occurs.

The Eleventh Circuit Endorses Taint Teams

On August 30, 2021, the Eleventh Circuit released its taint team opinion in In re Sealed Search Warrant and Application for Warrant by Telephone or Other Reliable Electronic Means, an issue of first impression in the circuit. In this case, the government acquired a search warrant for the corporate offices of a group of purported family businesses, all doing business under the name “Optima.” The search team seized documents from the entire office, including files owned by the business’s in-house attorney.  Under the original taint team procedure that the government chose, the prosecution team was to provide the taint team with any seized communications that were to or from an attorney. The taint team would then review the communications and move for a court order to provide the communications back to the prosecution team.

Optima and its employees intervened, seeking a preliminary injunction to halt the taint team’s activities. A magistrate judge in the Southern District of Florida determined that the proposed protocol was underinclusive of privileged documents because it required the prosecution team to segregate only the communications to or from attorneys. The magistrate judge also imposed a new protocol that required the intervenors to first identify privileged documents; then, a different United States Attorney’s office would conduct a taint team review of those documents claimed to be privileged. The intervenors objected to the magistrate’s report and recommendation and argued that the district court should conduct the privilege review, but the district court disagreed. So, the intervenors appealed to the Eleventh Circuit.

The Eleventh Circuit affirmed the district court’s modified taint team protocol. This is the first time the Eleventh Circuit had been asked to rule directly on the propriety of a taint team procedure. Thus, it compared the modified taint team protocol to protocols that various other circuit courts have affirmed or reversed. The Eleventh Circuit reasoned that, because the proposed taint team protocol did not “suffer[] from [any] of the defects [other] courts found disqualifying,” the proposed procedure provided sufficient protections for the privileges at issue. Therefore, a taint team which first permits a searched party to identify potentially privileged documents passes muster in the Eleventh Circuit.

Judicial Restrictions on Taint Teams

In arriving at its decision, the Eleventh Circuit relied on other circuits’ descriptions of what a proper taint team looks like. Notably, it distinguished authority from the Fourth (covering West Virginia, Virginia, Maryland, North Carolina, and South Carolina) and Sixth Circuits (covering Michigan, Ohio, Kentucky, and Tennessee) disapproving of taint teams in certain situations. Additional relevant authority not addressed by the Eleventh Circuit originates from the Southern District of New York.

While the Eleventh Circuit’s decision did not address decisions from the Southern District of New York, which is widely regarded as an influential district court, it has approved of taint teams at least twice. First, in U.S. v. Sattar, No. 02 Cr. 395, 2003 U.S. Dist. LEXIS 16164, 2003 WL 22137012 (S.D.N.Y. Sept. 15, 2003), the government sought a court order to produce privileged materials belonging to Sattar’s co-defendants to Sattar pursuant to Brady. The co-defendants opposed, citing privilege concerns. The dispute centered around notebooks which contained allegedly privileged statements that the taint team was translating from Arabic to English and phone calls between Sattar’s co-defendants and their counsel being transcribed and redacted where privileged for the prosecution team’s use. The translations and transcripts were also provided to the co-defendants. The district court held in camera review was appropriate because the court could not determine whether the material was actually privileged without reviewing it. Second, in In re Search Warrants Executed on April 28, 2021, No. 21-MC-425, 2021 U.S. Dist. LEXIS 101348 (S.D.N.Y. May 28, 2021), the Southern District of New York again addressed taint teams when Rudy Giuliani sought the return of allegedly privileged materials seized pursuant to a search warrant. Giuliani objected to a taint team protocol, but the district court disagreed and stated that “[t]he use of a [taint] team is common procedure in this District and has been deemed adequate in numerous cases to protect attorney-client communications.” Nonetheless, the court appointed a special master to ensure the “perception of fairness” in the process. Therefore, the Southern District of New York has broadly approved using taint teams, but will not credit their privilege designations without judicial review.

In In re: Search Warrant Issued June 13, 2019, 942 F.3d 159 (4th Cir. 2019), an unidentified law firm resisted a taint team procedure imposed by the government when collecting documents seized pursuant to a search warrant of its offices. The search warrant sought evidence of alleged illegality related to one attorney’s representation of one client out of a 20-attorney law firm. The magistrate judge ex parte authorized the use of a taint team. The procedure required the taint team to send responsive yet potentially privileged materials to the subject’s attorneys for further review, but non-privileged materials, based solely upon the judgment of the taint team, would be forwarded to the prosecution team. The taint team seized the subject’s documents which included tens of thousands of emails unrelated to the client relationship under investigation. The subject’s law firm partners objected to protect their clients’ information on the subject’s computer, but the district court overruled the objections. The Fourth Circuit reversed. It held a potential privilege waiver of this magnitude presented potential irreparable harm, and the proposed taint team protocol vested the Executive Branch with judicial powers to make privilege determinations. It also relied on a recent case from the District of Maryland, U.S. v. Elbaz, No. 8:18-cr-00157, in which a taint team improperly disclosed thousands of privileged documents to the prosecution team. Accordingly, the Fourth Circuit reversed the taint team protocol and ordered the district court to impose injunctive relief to cease the taint team’s operation pending further review by the district court. The district court’s activity on remand is not reported under the case number associated with the appeal, so it is unclear how the district court resolved the taint team protocol. Notably, the Southern District of New York distinguished this case in the Giuliani case by stating the Fourth Circuit “did not hold the Government’s use of a filter team is categorically inappropriate.”

In In re Grand Jury Subpoenas 04-124-03 and 04-124-05, 454 F.3d 511 (6th Cir. 2006), the Sixth Circuit held that a subject of a grand jury investigation has a limited right to review documents before producing them to the grand jury. A grand jury issued a subpoena for documents related to Larry Winget in Winget’s company’s control. The subpoena required immediate production to a taint team who would send documents it determined to be non-privileged to the grand jury without any review by any party. Asserting that the protocol was improper, Winget intervened, but the district court disagreed. The Sixth Circuit reversed, reasoning that this case was not appropriate for taint team procedures because the documents were not in the government’s possession yet and “taint teams present inevitable, and reasonably foreseeable, risks to privilege” from leaks between the taint team and prosecution team. However, the Sixth Circuit also held that a subpoenaed party should not be able to delay the grand jury’s review of relevant documents. Accordingly, the Sixth Circuit held that a Special Master should be appointed to conduct an initial privilege review, returning privileged documents to the subpoenaed company and sending non-privileged documents to the grand jury.

These cases highlight important differences among judicial approaches to using taint teams. First, as is clear from the Sixth Circuit, taint teams are inappropriate in situations where the materials are not yet in the government’s possession. Second, the Fourth Circuit has decisively held that overinclusive search warrant returns cannot simply be turned over to a taint team to make privilege determinations as if it were part of the judiciary. Third, while the Southern District of New York has held that a taint team sufficiently protects a subject’s privileged materials, a taint team cannot unilaterally determine whether privileged materials are indeed privileged and a court still must review the documents in camera before producing them to another party even pursuant to the government’s Brady obligation. These principles reconcile in the Eleventh Circuit’s holding that a taint team may make privilege determinations only after the potentially privileged materials are first identified by the subject of the investigation. Notably, the Eleventh Circuit departed from the Sixth Circuit’s analysis of who possesses the documents – in the Eleventh Circuit, the government possessed the documents, but the subject was still entitled to a first-look privilege review.

Conclusion

The circuits which have opined on the propriety of a taint team procedure do not take a uniform approach. Instead, whether a taint team is appropriate and how it will operate depends on the facts of the case including who possesses the documents, the size of the seizure relative to the scope of the warrant, the number of privileged documents in the seized materials, the timing of the production, and most important, where the search was executed. At some point, the Supreme Court may be asked to resolve the circuit splits and provide a definitive approach to the procedure concerning seizure of privileged material subject to search warrants.