How the Government Reviews Attorney Client Privileged Information Using a Filter Team
After seizing material that is potentially privileged through the attorney client privilege, federal agents send the information to a “filter team” previously called a “taint team” to sift through the information and separate privileged and potentially privileged materials from materials that are not privileged. Under the typical filter protocol privileged materials include “attorney-client information, attorney work product information and client confidences that have not been waived”. The filter team then separates the information into categories A. Potentially Privileged information and B. Non-Privileged information. The AUSA in charge of the filter team then seeks an agreement with the defendant’s lawyer to release potentially privileged information unless the attorney makes a claim of privilege over certain documents. A privilege claim is made by producing a privilege log and the parties can litigate disputes over the privilege log before the federal judge assigned to the case.
A Brief Note on the Attorney Client Privilege and Work Product Doctrine
The attorney client privilege is the oldest of the privileges for confidential communications known to the common law. Lawyers are obligated to protect attorney client privilege to the maximum extent of the law. The purpose of the privilege is to ensure full and frank communication between a client and his lawyer and promote broader public interests in the observance of the law and administration of justice. But the “filter team” process has eroded that protection by permitting government actors to unilaterally decide what is privileged and what is not privileged.
The work product privilege, a similar privilege that protects not only confidences but also an attorney’s efforts on behalf of a client is also as sacrosanct: “Proper preparation of a client’s case demands that a lawyer assemble information, sift what he considers to be relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference”. Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). There are two types of work product (1) fact work product which is a transaction of the factual events involved, and (2) opinion work product, which represents the actual thoughts and impressions of the attorney. In re Grand Jury Subpoena, 870 F.3d 312, 316 (4th Cir. 2017).
The Sixth Amendment Protects Privileged Information
The Sixth Amendment guarantee of effective assistance of counsel during criminal proceedings protects from unlawful intrusion into the attorney client relationship. Without the protections of the attorney client privilege and work product doctrine the criminal justice system could not properly function because a criminal defendant and his counsel could not analyze and prepare a criminal defendants case.
Problems with the Filter Team Process
To put it simply, the Department of Justice has a habit of screwing up the filtering process. In nearly every criminal case I have litigated involving the mass search and seizure of privileged information I have identified leaks in the process and occasionally the outright failure of the Department of Justice to review and filter privileged information. In a recent 4th Circuit Court of Appeals case, In Re Search Warrant Issued June 13, 2019 the Fourth Circuit had some harsh words to say about the DOJ created filtering process and its lack of lawful authority. The Fourth Circuit determined that when there is a dispute arises as to whether a lawyer’s communications or a lawyers documents are protected by the attorney-client privilege or work product doctrine, the resolution of that dispute is a judicial function. The DOJ cannot simply delegate to itself the role of the judicial branch by creating its own policy to rummage through attorney client privileged information and decide for itself what is privileged and what is not privileged.
Also, in many cases, filter team protocols delegate the identification and segregation of filter team information to paralegals and agents who are non-lawyers and are not properly trained in to protection of the attorney client relationship. In re Search of Elec. Commc’ns, 802 F.3d 516, 530 & n.54 (3d Cir. 2015).
The Sixth Circuit has recognized that filter team processes raise a “reasonably foreseeable risk to privilege” and “have been implicated in leaks of confidential information to prosecutors”. See In re Grand Jury Subpoenas, 454 F.3d at 523. As Judge Boggs explained:
“A filter team might have an interest in preserving privilege, but it also possesses a conflicting interest in pursing the investigation, and…some [filter] team attorneys will make mistakes or violate their ethical obligations. It is thus logical to suppose that filter teams pose a serious risk to holders of privilege.” See In re Grand Jury Subpoenas, 454 F.3d at 523
In a prominent case, United States v. Noriega, the Government’s filter team missed a document obviously protected by attorney-client privilege, by turning over tapes of attorney-client conversations to members of the investigating team. This Noriega incident points to an obvious flaw in the filter team procedure - the entity responsible for investigation is also responsible for safeguarding privileged information. Courts are obviously concerned about putting the foxes in charge of the hen house.
How Courts Handle a Failure of the Filter Team Process
The landmark case of Weatherford v. Bursey, 429 U.S. 545 (1977) is instructive on this issue. In Weatherford an undercover officer attended a meeting between the defendant and his lawyer. He was convicted and filed suit against the government after the conviction for violation of his constitutional rights - namely the Sixth Amendment right to counsel. After the meeting, the informant did not pass the information to the government or any member of the prosecution team but was called as a witness to testify at trial. The Fourth Circuit found a constitutional violation and determined that whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered requiring a new trial. The Supreme Court disagreed with such a bright line rule, holding that where there is a knowing intrusion into the attorney client relationship, tainted evidence used at trial ,or disclosure to the prosecution of information gleaned from defense strategy sessions, there is a sixth amendment violation. But in a 7-2 decision the Supreme Court determined that the defendant was not harmed by the intrusion because the information learned at the meeting was not shared with the government.
Despite the severity of breaches of the attorney client privilege, even slight breaches, courts are reluctant to dismiss cases in which the government has taken on the duty to safeguard information and failed in this regard. The predominant legal issue in the court’s decision is whether the defendant must prove that she was prejudiced by the breach of attorney client privilege. An example of prejudice may be that the government changed its investigation in some way after learning of the existence of privileged information. Given that it is nearly impossible to examine the mind of an agent or attorney who viewed privileged information, the defendant who is required to show prejudice often cannot show that they are directly prejudiced without an evidentiary hearing where each member of the prosecution team who reviewed privileged information is required to testify.
Following the Supreme Court’s decision in weatherford, there is currently a wide circuit split on this issue. The Fourth Circuit and Sixth Circuit require a showing of prejudice in order to dismiss an indictment for breach of the attorney client privilege. Shillinger v. Haworth, 70 F.3d 1132, 1142 (10th Cir. 1995). The Third Circuit and Tenth Circuit do not require a showing of prejudice for a “knowing intrusion”. United States v. Levy, 577 F.3d 200, 208 (3d Cir. 1978). The courts that do not require prejudice recognize that there are strong public policy considerations to not require the defendant to show that there was an intentional intrusion because it is impossible to show how far knowledge of privileged information bleeds into the case. The courts that require a showing of prejudice seem reluctant to take the drastic step of dismissing an indictment without some showing that the review of attorney client information tainted the case.
The typical procedure for a defendant addressing such a breach is to obtain discovery of the breach, identify the exact attorney client information accessed and show the court how that information was relevant to the defense case and the government investigation.
Dismissing a Case for Breach of the Attorney Client Privilege
The bottom line: In cases where the defendant can prove that a knowing intrusion occurred or that privileged information was accessed and used by the prosecution - prejudice is not required but the defendant should still be prepared to discuss prejudice in order to establish the knowing intrusion. Where the breach is a mistake the defendant should be prepared to show exactly how that information impacted her case. This can be done by presenting the following facts to the court:
The extent of the intrusion, was it a thousand documents or just a few
The relevance of the information disclosed to the issues in the indictment
The length of time the government held the information
The egregiousness of the failures of the filter process
The lack of government steps to quickly rectify the breach
The amount of evidence actually reviewed and the status of the agents and prosecutors who reviewed the evidence in relation to the case.
A motion to dismiss is an appropriate remedy but only after a thorough investigation into the scope of the breach and identification of all of the material reviewed, identification of who reviewed the material, and a determination of what the government did with the information following the breach.
Courts are becoming increasingly less tolerant to failures of the filter team process and as the department of justice continues to infringe upon the sixth amendment right to counsel by failing in this self imposed filtering process we can expect a more harsh reaction from the district courts and perhaps a revisiting of the “prejudice” requirement in the Supreme Court to clarify the current circuit split.
ABOUT THE AUTHOR
Ron Chapman has spent his career defending federal defendants in high-profile federal criminal cases. He is also the author of the Amazon best selling book Fight the Feds: Unraveling Federal Criminal Investigations. During his career he has learned that many federal defendants facing the power of the federal government lack resources and understanding of this complex field of law. The book and this companion website and guide were designed to close the informational gap between the federal government and federal criminal defendants by providing tactics and tips learned during my career fighting the federal government and its immense power. If you haven’t already, go to the beginning of this guide and review sections that are relevant to you and consider purchasing Fight the Feds to grow your knowledge of federal criminal law and investigations.