Circuit Court Slams the Use of Government “Taint Teams”

October 4, 2006

Governments frequently use “taint teams” to conduct privilege reviews of documents seized from defendants or others. The governments normally screen these “taint team” lawyers from the prosecutors or investigators, but courts nevertheless have struggled with the basic propriety of an adversary conducting a client’s privilege review.

In In re Grand Jury Subpoenas, 454 F.3d 511 (6th Cir. 2006), a federal grand jury subpoenaed company files that contained privileged documents. The company proposed conducting the privilege review, but the government asked that the court allow a government “taint team” to conduct the privilege review. Pointing to the privilege’s special role in American jurisprudence, as well as the possibility of government lawyers taking too narrow a view of the privilege or even leaking privilege documents, the court rejected the government’s process — describing it as allowing “the government’s fox [to be] left in charge of the appellants’ henhouse.” Id. at 523.

Most courts have gone the other way on this issue, and it will be interesting to see what happens next.