D.Mass.: Lawyer target of SW for records has no right to participate in the initial taint team review

A lawyer is the target of a search warrant. The government was using a taint team (or “filter team”) to review the materials for privileged matters. The lawyer proposed a more restrictive approach, and the government agreed with part of it. The government would not agree with the lawyer making the privilege determination himself. The court declines to follow In re Search Warrant Issued June 13, 2019, 942 F.3d 159 (4th Cir. 2019), because that case was far more egregious on the facts. Moreover, the lawyer doesn’t have a constitutional right to participate in the initial document review. In re Search of the Person of O’Donovan, 2022 U.S. Dist. LEXIS 189199 (D. Mass. Oct. 17, 2022):

Finally, O’Donovan notes in his motion that the original filter protocol described in the search warrant application provides no meaningful opportunity for defense counsel to participate in the review process. [Dkt. No. 9, p. 13]. O’Donovan does not cite to any authority holding that an individual whose property is seized has a right to participate in any privilege review process, nor is this court aware of any. In any case, the proposed modified protocol provides O’Donovan with the meaningful opportunity he seeks, as he now has the chance to object to the disclosure of any materials and to litigate those objections before the court. To the extent that O’Donovan takes issue with the modified protocol’s five-business-day timeframe for him to object, the court has no basis to deem it unreasonable in a vacuum, and O’Donovan may always request additional time as needed if warranted under the circumstances.

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