The government occasionally seizes privileged documents from suspected criminals and occasionally even from their law firms. Although the attorney-client privilege does not rest on constitutional grounds, case law generally prohibits prosecutors from reviewing privileged communications (absent the crime-fraud exception or some other doctrine). So who conducts privilege reviews?
Most courts allow a screened set of government lawyers to review documents for privilege. In United States v. Snyder, the court held that “the filter process worked sufficiently, even if the process itself has inherent flaws (it has a semblance of the fox guarding the hen house).” Case No. 2:16-CR-160 JVB, 2018 U.S. Dist. LEXIS 166231, at *17-18 (N.D. Ind. Sept. 27, 2018). But a couple weeks earlier, in United States v. Gallego, No. CR-18-01537-001-TUC-RM (BPV), 2018 U.S. Dist. LEXIS 152055 (D. Ariz. Sept. 5, 2018), a law firm whose documents were seized argued that it or a Special Master should handle the privilege review. The government proposed the usual “filter team” approach – although the court seemingly signaled its skepticism by using the alternative term “taint team.” The court ultimately assigned the review process to a magistrate judge.
Lawyers whose corporate clients might face criminal issues should familiarize themselves with the privilege review options for seized documents.