Who Should Guard the Attorney-client Privilege When Documents Are Seized by Law Enforcement?
| Citation | Vol. 28 No. 4 Pg. 0018 |
| Pages | 0018 |
| Publication year | 2023 |
Some cases may involve seizures of computers and other devices that contain millions of communications. Filter teams can help protect attorney-client privilege, but the law is in flux on how they should function.
BY DON SAMUEL AND SCOTT GRUBMAN
In Georgia and most other jurisdictions, state and federal, a typical criminal case often involves seizures of computers and other devices that may contain millions of communications. How is the attorney-client privilege protected? Today, in one way or another these problems are addressed either by a filter team (sometimes referred to as a "taint team" or a "privilege team"), a special master or a magistrate judge. But the law is in flux how these "teams" or arbiters should be comprised and how they should function. This article addresses the rapidly developing law that governs the formation and implementation of filter teams.
The developing law reflects several factors, including the different locations from which the digital information is acquired. A search warrant executed at a law firm inevitably captures an enormous amount of privileged information involving scores of clients, many of whom have no relationship at all with the suspected criminal activity for which there was probable cause to seize the documents.[1]
A search warrant targeting one lawyer (whether seeking information about the lawyer or a client),[2] results in the seizure of less privileged information. A search that targets a business may be able to limit the privileged information that the agents are permitted to examine by sequestering the communications involving a specified number of lawyers who provide legal advice to the business.[3] Yet, even accounting for these differences in the target and venue of the search, courts have examined the blueprint for filter teams and reached divergent views about what is necessary to protect the privilege holders without unduly hampering the efficiency of the law enforcement mission.
Though courts have been approving filter teams for the past 30 years at a common law pace, the evolution of the law went into overdrive with the 4th Circuit decision in In re Search Warrant Issued June 13, 2019 (Baltimore Law Firm).[4] From a criminal defense lawyer's perspective, Baltimore Law Firm exemplifies the principle, "bad facts make great law."
In Baltimore Law Firm, Lawyer "A" represented Client "A" (who was also a criminal defense lawyer); Client "A" represented a drug dealer. Law enforcement suspected that Lawyer "A" was corrupt and so was Client "A." A search warrant was issued for Lawyer A's law firm to seize evidence of Lawyer A's corrupt representation of Client A (who was allegedly corruptly representing the drug dealer).
In the search warrant application, prosecutors offered to utilize a filter team to ensure that the prosecution team would not be able to examine any seized privileged communications that were not subject to the crime-fraud exception.[5] The prosecutors chose who would be on the filter team, which would be comprised of local prosecutors (albeit from a different division of the same U.S. attorney's office) and various law enforcement agents and paralegals. The filter team would promptly furnish to the prosecution team all documents deemed by the filter team to be non-privileged.[6]Potentially privileged documents that the filter team believed could be redacted or that were subject to the crime-fraud exception would be reviewed with Lawyer A's lawyer. If an agreement could not be reached, the document would only be furnished to the prosecution team with a court order.
The search resulted in the seizure of more than 50,000 emails to and from Lawyer A, as well as other law firm lawyers' emails. Correspondence with numerous other clients was seized. Some of these clients had pending cases with
The Fourth Circuit lit the fuse, and now courts throughout the country are deciding how to monitor (or even permit) the filter team process that has become routine in white collar criminal prosecutions.
the U.S. attorney's office unrelated to Client A—yet only 116 emails related to Client A.[7] The risk that privileged communications of clients and lawyers unrelated to either Lawyer A or Client A were reviewed was substantial. And the "filter" process was entirely too porous to prevent privileged information from reaching prosecutors and law enforcement agents throughout the district. The filter team was as reliably prophylactic as cigarette filters in preventing nicotine poisoning.
The district court denied the law firm's motion to enjoin the filter team process. An appeal was filed in the 4th Circuit which was heard on an expedited basis, and shortly after oral argument, the 4th Circuit reassigned the filter team's duties to a magistrate judge to review all seized materials, identify those not related to Client A and return them to the law firm, and conduct a privilege evaluation of the remaining materials. The filter team was abolished. After reviewing the importance of the attorney-client and work product privileges, the 4th Circuit held that it is a judicial function to enforce and protect the attorney-client privilege, not the job of law enforcement (and particularly DEA and IRS agents with no legal training). The court warned that it is never permissible to have the law enforcement fox in charge of the law firm hen house.[8] Moreover, the law firm should have been part of the process of devising the protocol for reviewing potentially privileged documents, rather than allowing the government to present its plan to the trial court ex parte with no input from the law firm.[9]
The 4th Circuit lit the fuse, and now courts throughout the country are deciding how to monitor (or even permit) the filter team process that has become routine in white collar criminal prosecutions. In the 11th Circuit, courts have generally held that Baltimore Law Firm is limited to its unique (i.e., "bad") facts, primarily the seizure of a substantial number of privileged communications of the law firm's clients who had nothing to do with the crimes being investigated.[10] But Baltimore Law Firm has had a substantial impact on the functioning of filter teams even in the jurisdictions that reject the Baltimore Law Firm's apparent total abolition of filter teams.
Georgia Law
In Georgia, when a search warrant targets an attorney's office (but the attorney is not alleged to have been involved in wrongdoing), to ensure that the attorney-client and work product privileges are protected, Georgia law provides that special procedures must be used.[11] This code section focuses on cases in which the attorney is not under investigation, yet there is probable cause to believe the attorney possesses documentary evidence relating to another person's crime. The warrant application must state that absent the execution of a search warrant, there is probable cause to believe the documentary evidence that is sought will be destroyed or concealed.
Only a superior court judge is authorized to issue a search warrant directed at an attorney. When a law office is the location to be searched, the state must use a special master to conduct the search and conduct the initial privilege review. The statute also includes a specific exclusionary rule if the statute is violated.[12]
Should the filter team protocol be subject to court approval in advance of the search/seizure (for example, in the search warrant that is issued by the magistrate)?
Even before the ubiquitous filter team protocols became contentious, courts had divergent opinions about whether search warrants should include detailed explanations about the protocol for searching a computer—even when the seizure of privileged communications was not anticipated. Some courts required the use of search terms or date limitations.[13] Ways to minimize the "plain view" discovery of evidence that was not identified in the "to be seized" clause of the warrant were formulated.[14] Standard language appeared in most computer search warrants dealing with the method of making a mirror image of the data and expediting the process to minimize the amount of time the IT experts stayed at the premises.[15]
Now, when searches are executed at businesses, or for other devices which are likely to include attorney-client communications, standard—almost boilerplate— language is included in the warrant about the use of a filter team.[16]
After the seizure, should the privilege holder be part of the formulation of the filter team protocol?
Rarely are the privilege holders invited to participate in formulating the filter team protocol unless the privilege holders challenge the search or the protocol that the government has proposed and the...
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