Defendant is a criminal defense lawyer, and his office was subjected to a search and some client files were seized. When a criminal defense lawyer is the target of the search, there are clear Sixth Amendment concerns. While courts often “take[ ] a skeptical view” of taint teams for privilege review, the situation here supported use of a taint team. And, no, the defendant doesn’t get to do his own privilege review. United States v. Gallego, 2018 U.S. Dist. LEXIS 152055 (D. Ariz. Sep. 6, 2018):
The Court rejects Defendant’s proposal to allow his law office to review the seized materials for privilege and responsiveness, as Defendant has not identified adequate support for the proposal. Accordingly, the issue before the Court is whether the review should be conducted by a Government taint team or by a Special Master. Both of these review procedures are contemplated by the USAM, which provides non-binding guidance for searches of offices of attorneys who are suspects, subjects, or targets of criminal investigations. USAM § 9-13.420(F). In addition, both of these review procedures have been approved and authorized by courts. See generally, e.g., In re Search of 5444 Westheimer Road Suite 1570, No. H-06-238, 2006 U.S. Dist. LEXIS 48850, 2006 WL 1881370 (S.D. Tex. July 6, 2006) (approving use of taint team); United States v. Grant, No. 04 CR 207BSJ, 2004 U.S. Dist. LEXIS 9462, 2004 WL 1171258 (S.D.N.Y. May 25, 2004) (same); Stewart, 2002 U.S. Dist. LEXIS 10530, 2002 WL 1300059 (appointing Special Master to conduct review); United States v. Abbell, 914 F. Supp. 519 (S.D. Fla. 1995) (same).
Although use of taint teams has been approved in limited factual scenarios, federal courts have generally “taken a skeptical view of the Government’s use of ‘taint teams’ as an appropriate method for determining whether seized or subpoenaed records are protected by the attorney-client privilege.” United States v. SDI Future Health, Inc., 464 F. Supp. 2d, 1027, 1037 (D. Nev. 2006). “[T]aint teams present inevitable, and reasonably foreseeable, risks to privilege.” In re Grand Jury Subpoenas 04-124-03 & 04-124-05, 454 F.3d 511, 523 (6th Cir. 2006). The Government’s taint team may “have a more restrictive view of privilege” than the defense. Id. In addition, the Government’s conflicting interests in both preserving privilege and pursuing the investigation present inherent risks. See id. Taint teams “have been implicated in the past in leaks of confidential information to prosecutors.” Id. And even if no leaks occur, the use of walled-off taint teams undermines the appearance of fairness and justice. See In re Search Warrant for Law Offices Executed on March 19, 1992, 153 F.R.D. 55, 59 (S.D.N.Y. 1994); Stewart, 2002 U.S. Dist. LEXIS 10530, 2002 WL 1300059, at *8. “It is a great leap of faith to expect that members of the general public would believe” that a wall separating members of the taint team from members of the prosecution “would be impenetrable.” In re Search Warrant, 153 F.R.D. at 59.
Furthermore, the Government has not identified any cases approving use of taint teams in situations like the one presented here, where materials—including active case files—have been seized from the law office of a criminal defense attorney. “[A] search of the law offices of a criminal defense attorney raises Sixth Amendment concerns not otherwise present in the search of the offices of a civil litigation attorney.” United States v. Kaplan, No. 02 CR. 883(DAB), 2003 U.S. Dist. LEXIS 21825, 2003 WL 22880914, at *11 (S.D.N.Y. Dec. 5, 2003) (citing Stewart, 2002 U.S. Dist. LEXIS 10530, 2002 WL 1300059, at *5). In Stewart—the most closely analogous case relied upon by the parties—agents executing a search warrant seized documents, computer hard drives, and other items from the defendant’s law office, which was part of a larger suite shared by four other solo practitioners. Stewart, 2002 U.S. Dist. LEXIS 10530, 2002 WL 1300059, at *2-3. The court appointed a Special Master to review the seized materials for privilege and responsiveness, finding that the case presented exceptional circumstances because the seized materials were “likely to contain privileged materials relating not only to unrelated criminal defendants but also to the clients of attorneys other than the defendant.” 2002 U.S. Dist. LEXIS 10530, [WL] at *7, *10.
In the present case, the seized materials do not relate to clients of attorneys other than Defendant, but they do likely contain privileged materials pertaining to unrelated clients of Defendant. Accordingly, this case raises Sixth Amendment concerns present in Stewart but not present in other cases relied upon by the Government. For example, in Grant, the court approved use of a taint team but expressly noted that “unlike the situation in Stewart, there are no Sixth Amendment concerns in this case” because the “seized documents were not in the files of a criminal defense lawyer and relate to civil, not criminal, litigation.” Grant, 2004 U.S. Dist. LEXIS 9462, 2004 WL 1171258, at *3. Although Stewart is non-binding and unpublished, it is a carefully reasoned and persuasive decision, and it supports Defendant’s request for appointment of a Special Master under the circumstances presented here.
