by Don Samuel
Last week, this Blog reported on the developing law surrounding the use of DOJ taint teams to review seized communications that may include attorney-client communications. This afternoon, Scott Grubman, on behalf of his client, Jim A Beard, filed a motion for a TRO seeking to immediately stop the government from continuing to use a taint team to review three years of emails seized from his client’s AOL account. The request for a TRO, relying on the Fourth Circuit case In re Search Warrant, 942 F.3d 159 (4th Cir. 2019), seeks not only to terminate DOJ’s access to, and continued review of, all the emails until a disinterested third party (either a special master, or the court) reviews the communications, but also to bar DOJ from making any decision about the applicability of the attorney-client privilege or the work product privilege. In addition, the motion also seeks to disqualify the NDGa U.S. Attorney’s Office from any further participation in the investigation of his client because of the abuse his client has already suffered by the government’s review of his privileged communications. He also decries the government’s use of a taint team without having an adversarial hearing (post-execution of the search warrant) at which the defense could have challenged the procedure We have learned that Judge Batten is handling this matter. Stay tuned.