How Does the Government Deal With Privileged Communications in Files That They Seize During Criminal Investigations?

August 4, 2004

Criminal investigations often involve seizures of suspected criminals’ – and their lawyers’ – files. How does the government handle privilege reviews in such settings?

In United States v. Segal, No. 02-CR-112, 2004 U.S. Dist. LEXIS 6616 (N.D. Ill. Apr. 15, 2004), a criminal defendant prepared a privilege log identifying purportedly privileged documents among those that the government had seized from him. The government had used what is called a “taint team” of prosecutors to review the seized documents, identifying a number of the documents requiring in camera review. The court explained that the prosecution’s “taint team” had been “screened off from the prosecution team.” Id.

The use of a screened “taint team” makes sense in the context of government-seized files which may contain privileged communications – a situation in which no litigants want to find themselves.