|Footnotes for this article are available at the end of this page.
When Michael Avenatti won a mistrial in his wire fraud trial in the Central District of California in August 2021, it was one of the tamer headlines about the infamous suspended lawyer. However, the lack of fanfare belies the significance of the legal issue that led U.S. District Judge James Selna to declare the mistrial. Judge Selna found that the government’s “taint team” had failed to hand over evidence in its possession after a seizure of data from Avenatti’s law offices. Although no willful misconduct was found, the failure to turn the reviewed evidence over materially hindered Avenatti’s ability to defend himself against the government’s charges. This case is one of a number of recent actions to consider the proper use of taint teams, representing a pushback on the government’s handling of privileged materials in investigations.
The Significance of the Practice
A “taint team” or “filter team” consists of prosecutors or agents selected to review materials seized in the course of an enforcement action to determine whether any of the materials are protected by the attorney-client privilege. These reviewers are specifically not a part of the prosecution team handling the enforcement action in which the search warrant was issued. The taint team members are able to review the seized materials to determine whether any documents or communications are subject to the protections of the attorney-client privilege or the attorney work-product doctrine. The guiding principle is the concern that exposure of the prosecuting team to privileged material may result in the exclusion of evidence should the matter come to trial or even the disqualification of a prosecutor.
The procedures for building and using a taint team are not well defined. The U.S. Department of Justice (“DOJ”), in its comprehensive guidance for prosecutors, provides only that
“to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy, a ‘privilege team’ should be designated, consisting of agents and lawyers not involved in the underlying investigation.
Instructions should be given and thoroughly discussed with the privilege team prior to the search. The instructions should set forth procedures designed to minimize the intrusion into privileged material, and should ensure that the privilege team does not disclose any information to the investigation/prosecution team unless and until so instructed by the attorney in charge of the privilege team. Privilege team lawyers should be available either on or off-site, to advise the agents during the course of the search, but should not participate in the search itself.”
Justice Manual 9-13.420 (E)1. A fundamental conflict of interest is embedded in the practice. Members of the same enforcement agency as the prosecution are viewing materials that would otherwise be undisclosed and making potentially self-serving privilege calls. As one disapproving court explained, “The appearance of Justice must be served, as well as the interests of Justice. It is a great leap of faith to expect that members of the general public would believe any such Chinese wall [taint team] would be impenetrable; this notwithstanding our own trust in the honor of an AUSA [Assistant U.S. Attorney].”2
A Growing Sense of Skepticism
Despite the DOJ’s endorsement and their ubiquitous use, taint teams recently have come under greater scrutiny from the courts.
For a number of years, the harshest critic of the taint team had been the United States Court of Appeals for the Sixth Circuit. In In re Grand Jury Subpoenas, the court had warned that taint teams pose “inevitable, and reasonably foreseeable risks, to privilege . . . the government taint team may have an interest in preserving privilege . . . but it also possesses a conflicting interest in pursuing the investigation, and, human nature being what it is, occasionally some taint-team attorneys will make mistakes or violate their ethical obligations.”3 In that case, which arose prior to production to a subpoena, the court allowed the objecting party to perform its own initial privilege review.
In 2019, in United States of America v. Under Seal, the United States Court of Appeals for the Fourth Circuit levied a scathing critique against the taint team protocols in place in the case. First, the court raised the possibility of errors on the part of even well-trained lawyers who may then transmit privileged materials. Second, the court noted that the government may have a more restrictive view of the privilege than the owner of the subject matter being searched, resulting in the disclosure of materials that should have been protected. Third, in this particular case, the taint team had been approved by the district court in an ex-parte proceeding, whereas the Fourth Circuit expressed its favor for adversarial proceedings. Last, there was the appearance of unfairness because “reasonable members of the public” would find it difficult to believe the filter team agents or prosecutors would ignore privileged information they reviewed.4 It is also worth noting that the court criticized the government for allowing non-lawyers to participate on the taint team and make privilege determinations, despite contrary guidance from DOJ.
More recently, in Harbor Healthcare System LP v. United States of America,5 the United States Court of Appeals for the Fifth Circuit found that prosecutors displayed a “callous disregard” of the rights of the targeted company in the way the government’s taint team had conducted itself. In that case, despite the fact that the government had already determined that certain materials were privileged, it refused to destroy those privileged materials or return them to the investigation target.
Maintaining the Status Quo – For Now
Despite these criticisms, the use of taint teams is not ending any time soon. In 2020, the DOJ created a Special Matters Unit (“SMU”) to oversee taint teams when reviewing seized privileged material. According to the DOJ, the unit was created to focus on issues related to privilege and legal ethics, including evidence collection and processing, pre- and post-indictment litigation, and advising and assisting Fraud Section prosecutors on related matters. The SMU (1) conducts filter reviews to ensure that prosecutors are not exposed to potentially privileged material; (2) litigates privilege-related issues in connection with Fraud Section cases; and (3) provides training and guidance to Fraud Section prosecutors.6 Perhaps the SMU is the DOJ’s response to recent taint team criticism. Regardless, defense counsel should be prepared to closely watch and, if necessary, aggressively contest the government’s use of taint teams to review seized material that may contain attorney-client privileged information.
 In re Search Warrant for L. Offs. Executed on Mar. 19, 1992, 153 F.R.D. 55, 59 (S.D.N.Y. 1994).
 In Re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006).
 United States of America v. Under Seal, 942 F.3d 159, 177-83 (4th Cir. 2019).
 5 F.4th 593 (5th Cir. 2021).
 DOJ Fraud Section Year in Review, 2020, at 4.