D.Utah: Law office search was not overbroad, and “taint team” is constitutional

In this law office search case, “[t]here is no evidence to establish that the search team grossly exceeded the scope of the warrant in this case, nor that the search was overly broad as to give rise to constitutional concerns.” The use of a “taint team” protected attorney client communications and was not a constitutional violation. United States v. Mower, 2010 U.S. Dist. LEXIS 106927 (D. Utah October 6, 2010):

Defendants argue that the government’s use of taint teams to protect against the improper intrusion into attorney-client privileged information constitutes a per se intrusion on the attorney-client privilege. While courts have expressed mixed reviews on the appropriateness of the use of taint teams in addressing attorney-client privilege issues, the use of a taint team itself does not constitute an intrusion warranting complete suppression of all evidence seized. This is especially true in cases such as this case where the government has already obtained the physical control of potentially privileged documents, the legality of the seizure of documents was not initially challenged, and there are large volumes of documents at issue. See, e.g., In re Grand Jury Subpoenas 04-124-03 and 04-124-05, 454 F.3d 511, 522-23 (6th Cir. 2006); United States v. Winters, no. 06-cr-54, 2006 U.S. Dist. LEXIS 70488, 2006 WL 2789864 at *2 (S.D.N.Y. 9/27/06); Hicks v. Bush, 452 F. Supp. 2d 88, 103 n. 12 (D. D.C. 2006).

The taint team at issue in this case was formed prior to the search and was available for privilege determinations during and throughout the search. The government has stated that the documents all went through several levels of review by the taint team according to the classes of privilege of the documents as designated by the agents, the taint team attorneys and defendants’ counsel. Finally, the government’s use of a taint team was approved by a neutral and detached magistrate and as it was used in conjunction with a valid search warrant, the use of a taint team, in itself, does not warrant a blanket suppression. …

Note: I personally have problems with the entire “taint team” concept when the team comes from DoJ because it leaves the appearance of impropriety for the government and the defendant will never believe that privilege was not breached. A special master process would be far better, but that would cost the government money–retaining a civil lawyer from the community to review everything. The problem with that is protecting grand jury secrecy, but that can be arranged up front. Better yet, let a USMJ do it.