Who Conducts a Privilege Review When the Government Seizes Potentially Protected Documents?

October 10, 2012

Although the attorney-client privilege does not rest on constitutional principles, criminal defendants’ right to counsel generally prevents the government from intruding into privileged communications. When the government seizes a collection of documents that might contain protected communications, who reviews them? Handing the documents back to a criminal defendant or her lawyer might invite mischief, but allowing prosecutors to review the documents might interfere with a defendant’s right to counsel.

Most courts allow a privilege review by government lawyers who are screened from the prosecutors in that case. These lawyers have traditionally been called a “taint team.” An Eastern District of Louisiana court called the lawyers a “clean team.” Heebe v. United States, Civ. A. No. 10-3452 SECTION C, 2012 U.S. Dist. LEXIS 104795, at *3 (E.D. La. July 27, 2012). These lawyers withhold protected documents from the prosecutors, subject to the court’s ultimate review.

Although some courts have compared such “taint” or “clean” teams to a fox guarding the hen house, most courts approve such a review process as an appropriate way to reconcile the government’s interest in using non-protected seized documents and criminal defendants’ right to withhold protected communications from the government.