by: Don Samuel
Nobody knows for sure what the significance of the Fourth Circuit decision in In re Search Warrant Issued June 13, 2019, 942 F.3d 159 (4th Cir. 2019), will be in the long run. Perhaps an anomaly? Maybe limited to its peculiar facts? Possibly a precedent for major changes in the way that the government is permitted to reap the benefits of a search warrant that ensnares privileged material.
In this Fourth Circuit case, the government executed a search warrant at a law firm in order to seize evidence of a client’s and one of the firm's lawyer’s crimes. There was nothing pianissimo about this seizure. The seizing agents were permitted to seize an enormous amount of material, including all of the target lawyer’s emails. Acknowledging that there would be voluminous privileged material in the seized evidence – correspondence between lawyers and clients (clients other than the target client; lawyers other than the target lawyer) that was privileged and not subject to the crime fraud exception – the government went to the Magistrate ex parte and arranged a procedure by which all the material would be sent initially to a “filter team” (sometimes referred to as a “taint team”) comprised of lawyers from the DOJ, as well as law enforcement agents, all of whom were unaffiliated with the prosecutors and agents who were investigating the lawyer and the client. The taint team would sequester all the privileged information and then provide the unprivileged material to the case agents and the line prosecutors. The procedure was later modified and the filter team would first send the unprivileged material to the law firm to determine if it objected to any disclosures to the prosecutors.
The law firm objected: First, the law firm complained that nobody from DOJ or DEA or IRS, even people unaffiliated with the prosecution team, should be permitted to review privileged information; second, this procedure should not have been approved in an ex parte proceeding. Third, the task of reviewing material that is subject to the attorney-client privilege and the work product privilege is a project that the judicial branch must undertake and this may not be delegated to the executive (prosecutorial) branch of government.
The Fourth Circuit agreed with all three arguments.
Is this decision limited to cases in which a law firm was the target of the search and therefore involved a huge amount of privileged information? Or will this decision apply in every case in which a search warrant yields evidence from computers that are likely to contain at least some privileged material, such as most, if not virtually all, seizures of business computers?
The use of taint/filter teams in white collar search warrant seizure cases is widespread. Rarely is a business, or a doctor’s office searched that a team of prosecutors unaffiliated with the prosecution team is not appointed. Invariably, businesses have records of consultations with lawyers, such as advice about regulatory matters, or the legality of certain proposed ventures.
Are there enough Magistrates, or enough hours in the day, for federal Magistrates to review the documentary evidence seized pursuant to a search warrant that may include privileged material? Or will the government permit the defense to review the material first, as was the case when Michael Cohen’s files were seized in connection with the investigation of the Trump campaign contribution violations? Or will a “special master” be appointed to review the material before it is provided to the prosecution team?
So far, no appellate court has decided the extent to which In re Search Warrant Issued June 13, 2019 will be limited, or whether it is now the law of the land in all cases.
Quick note: In Georgia, a statute governs the procedures that must be used when a search warrant is directed at a lawyer or a lawyer’s office, if the attorney is not the target of the investigation. OCGA § 17-5-32.