- In a 2019 opinion, the Fourth Circuit broadly concluded that unsupervised filter teams were an impermissible delegation of judicial functions to the executive branch. Notwithstanding the Fourth Circuit’s suggestion that filter teams are improper, they remain an important tool for Department of Justice (DOJ) investigations, particularly in the white collar space. And DOJ filter teams continue to be vested with substantial discretion.
- Since the Fourth Circuit opinion, several other circuit courts and district courts have joined the fray. Although they generally have not adopted the Fourth Circuit’s view on filter teams, they have endorsed modified filter protocols that provide greater protections to privilege holders. Those modifications include opportunities for privilege holders to review documents before they are provided to the prosecution team, robust procedures for court determinations on privilege, and requirements that filtering be done by individuals sufficiently separate from the prosecuting office handling the criminal investigation.
The Bottom Line
The Department of Justice (DOJ) uses “filter teams” or “taint teams” during investigations to ensure that prosecutors do not gain access to documents protected by the attorney-client privilege. Until recently, courts did not take an active role in policing them.
Because the use of filter teams can be controversial, litigation has arisen on whether filter teams are appropriate at all—and to the extent they are utilized, whether their powers should be curtailed by more affirmative interventions by the court or adverse parties.
In 2019, the Fourth Circuit issued a sweeping opinion on the use of filter teams in In re Search Warrant Issued June 13, 2019 (Baltimore Law Firm) 942 F.3d 159 (4th Cir. 2019). The case involved a search of a law firm that involved an unusually large number of potentially privileged documents. The court’s opinion concluded that unsupervised filter teams were an impermissible delegation of judicial functions to the executive branch, casting doubt on the use of filter teams altogether.
Since the Fourth Circuit’s opinion, several other circuit courts and district courts have joined the fray. Despite Baltimore Law Firm’s suggestion that filter teams are inherently improper, filter teams remain an important tool in DOJ investigations.
For example, in In re Search Warrants Executed on April 28 (Giuliani/Toensing), No. 21-MC-425, 2021 U.S. Dist. LEXIS 101348, 2021 WL 2188150 (S.D.N.Y. May 28, 2021), the Southern District of New York declined to apply the broad conclusion of Baltimore Law Firm. Giuliani/Toensing involved challenges to two separate sets of warrants. The first set of warrants were issued in 2019 to search lawyers Rudy Giuliani’s and Victoria Toensing’s email and iCloud accounts. The government employed a filter team to review the materials for privilege.
The filter team’s review of those materials apparently was largely complete when a second set of warrants were issued in 2021, this time to search Giuliani’s law offices and Toensing’s electronic device (which previously had been seized). Giuliani and Toensing then challenged both sets of warrants, seeking information about the filter team’s process, the return of their data, and to conduct their own privilege review of the 2021 materials in the first instance. The court rejected Giuliani’s and Toensing’s arguments, concluding that the filter team that had been put into place to review the results of the 2019 warrants adequately protected attorney-client privilege. In a footnote, the court distinguished Baltimore Law Firm and disagreed with its constitutional rationale. As to the 2021 warrants, the court agreed with the government that appointing a special master was appropriate “to ensure the perception of fairness.”
In July 2021, the Fifth Circuit addressed the filter teams issue with its unpublished opinion in Harbor Healthcare Sys., L.P. v. United States, 5 F.4th 593 (5th Cir. 2021). In it, the court criticized the government for its handling of privileged materials despite its use of a filter team. The case involved a criminal investigation of a health care company that also was subject to a potential civil enforcement action for which the company had retained outside counsel. The company sought to intervene after the government executed a search warrant at its offices. The company moved for return of privileged materials that the filter team already had provided to the prosecution team. The Fifth Circuit concluded that a remedy of return was warranted, explaining that a filter team serves no practical effect if the government retains copies of privileged documents.
In August 2021, the 11th Circuit addressed the issue in United States v. Korf, 11 F.4th 1235 (11th Cir. 2021). The case involved a search warrant executed at a suite of offices at a business, which included the office of the in-house attorney. The filter team protocol that the magistrate judge had modified allowed the privilege holders to create a privilege log of all of the seized materials prior to their release to the prosecution team, which the filter team could challenge before the court. The 11th Circuit deemed the modified protocol adequate, seeming to endorse the principle that privilege holders have a right to object to a filter team’s designations prior to the release of documents to the prosecution team.
In December 2021, a district court judge in the Northern District of Georgia found a filter team protocol inadequate in In re Search Warrants, 1:21-CV-04968-SDG (N.D. Ga. Dec. 14, 2021). At issue were warrants authorizing the seizure of materials held by a law firm involving the target of the investigation, a lawyer who previously was employed at the firm. The original filter team protocol allowed the filter team to provide documents it deemed non-privileged to the prosecution team directly. The court concluded that the protocol was inadequate and modified it to allow the privilege holders to object to the filter team’s privilege designations. It also required that the filtering be done by individuals separate from the jurisdictions that may be handling criminal investigations of firm clients.
These recent cases demonstrate that courts are more willing to allow privilege holders to participate in filter team processes. Although DOJ filter teams continue to be vested with substantial discretion, privilege holders now have an increased opportunity to participate in crafting filter protocols and reviewing seized materials for privilege.
Some consensus has emerged that privilege holders should be allowed to challenge the filter team’s document designations before materials are sent to the prosecution team. They also may be permitted to help craft filter team protocols under certain circumstances. Privilege holders seeking to participate in the process should intervene early to maximize their ability to influence the protocol and document review procedures. Advocates should seek an audience first with prosecutors to ascertain if they are willing to negotiate on the filter team process before seeking court intervention. To the extent prosecutors decline, the court has a more compelling reason to intervene.
Advocates should be armed with a proposal on how to modify the filter team protocol to protect privilege while balancing the need for the government to move forward expeditiously with its investigation. Specific timelines for document review, production of privilege logs, and motion practice on disputed documents will assure the court that the proposal fully protects privilege without causing unnecessary delay. Although standing issues need to be considered, these strategies also may be effective for third parties and co-defendants seeking to participate in the filtering process of certain materials even where they are not the subject of a search warrant or subpoena.
If motion practice before the court becomes necessary, privilege holders should seek to do so as early as possible. The failure to intervene before the filter team’s review of materials is complete may limit privilege holders’ ability to obtain relief.
In sum, although courts have increased their supervisory role over the filter team process following Baltimore Law Firm, DOJ continues to have substantial discretion. Parties seeking to protect privileged materials should object early to filtering protocols where appropriate. And as the law on filter teams inevitably evolves, advocates should continue to watch for developments in this area.
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