D.Me.: Use of a “filter agent” to screen e-mail obtained by SW was not unreasonable

Defendant was arrested on a federal charge of failing to pay child support, and a search warrant was issued for his e-mail account. The use of a “filter agent” to screen for potential privileged information was not inherently unreasonable. United States v. Taylor, 764 F. Supp. 2d 230 (D. Me. 2011)* (footnotes citing cases have been omitted):

The parties have not referred me to any First Circuit decision dealing with the use of a filter agent. Case law from the rest of the country does not yield clear answers, but some themes emerge. A number of cases have permitted its use. At the same time, there is a healthy skepticism about the reliability of a filter agent or Chinese or ethical wall within a prosecutor’s office, a skepticism perhaps prompted by the famous failures of such a procedure in United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991). Courts exhibit particular concern over use of filter agents or taint teams in searches of lawyers’ offices, where privileged materials of many clients could be compromised. There, judges have sometimes required alternatives such as appointment of a special master, a wholly independent third party. Courts seem to recognize a distinction between circumstances where the government has not yet obtained the records on the one hand (allowing defense counsel’s preliminary review), and, on the other hand, what the government should do when it has already seized the records, then realizes that it may have privileged materials (allowing use of filter agent there). Finally, some of the cases and some of the commentators suggest a role for judicial review.

In the circumstances of this search and this e-mail account, I have no reason to find that it was inherently negligent for the government to fail to foresee that its seizure of the defendant’s e-mails would produce privileged documents simply because he had a lawyer, and I do not conclude that every warrant for an e-mail search must have at the outset a built-in privilege protection procedure, any more than there is such a requirement for every paper document search. Instead, I conclude that the government behaved reasonably here by immediately seeking judicial instructions once its agent noticed that e-mail headers reflected communications between lawyer and client. It is true that some cases could be read to suggest that at that point the defendant and his lawyer should have been allowed a first look at the e-mails, so as to create a privilege log and then let the government challenge it in court, rather than vice versa as here. But the defendant did not propose that procedure to the magistrate judge, and instead simply opposed the government’s proposal in toto. The government sought judicial instructions, the magistrate judge modified its proposal, and then issued an order on how to proceed. I reject the argument that somehow that was per se an inappropriate way of proceeding.