Search Warrants, the Attorney-Client Privilege, and Federal Criminal Rule 41(g)

Criminal Law & Procedure Practice Group Teleforum

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In July, the Fifth Circuit Court of Appeals issued an opinion in Harbor Healthcare System v. United States, addressing the application of Federal Rule of Criminal Procedure 41(g) and motions to return documents improperly seized by the government in the context of a criminal False Claims Act matter.  The Fifth Circuit took a more restrictive approach to seizing and segregating privileged material than we have traditionally seen, and raises interesting questions about the attorney-client privilege, search warrants, and the use of government “taint teams.”

Featuring:

  • William McClintock, Associate, King & Spalding

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society’s virtual event. This afternoon, September 23rd, we discuss search warrants, the attorney-client privilege, and Federal Rule of Criminal Procedure 41G. My name is Evelyn Hildebrand, and I’m an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today’s call.

 

Today we are fortunate to have with us Mr. William McClintock. He’s joining to discuss today’s topic. William is an associate in King and Spalding’s Washington, DC office and he is a member of the firm’s Special Matters and Government Investigations Practice where he focuses his practice on white-collar criminal litigation and government investigations. Mr. McClintock graduated from Notre Dame Law and he clerked for Judge Richard Leon on the DC Circuit.

 

After our speaker gives his opening remarks, we will turn to audience questions. If you have a question, please enter it in the Q and A feature at the bottom of your screen. You can enter a question at any time, but the question/answer portion will be at the end of our speaker’s remarks this afternoon.

 

With that, thank you for being with us today. William, the floor is yours.

 

William McClintock:  Thank you very much. And I’d like to take this opportunity to thank The Federalist Society for the chance to talk about this case. So to summarize very quickly, in July of this year, the Fifth Circuit Court of Appeals issued an opinion in the matter of Harbor Healthcare Systems v. The United States. And in that matter, they addressed the application of Federal Rule of Criminal Procedure 41G and motions to return documents improperly seized by the government in the context of a Criminal False Claims Act matter. And in that decision, the Fifth Circuit panel took a slightly more restrictive approach to seizing and segregating, and ultimately, destroying privileged material that was seized as part of a search warrant than we’ve traditionally seen. And it raises interesting questions about the attorney-client privilege, the use of search warrants, and the use of so-called government taint teams or filter teams.

 

Before we dive in, just to sort of lay the groundwork a little bit, I intend to keep this description fairly descriptive rather than proposing any policy solutions or opinions, but just want to caveat by noting that all the opinions offered here are my own rather than those of King and Spalding or The Federalist Society. And it goes without stating that any mistakes are my own entirely.

 

So let’s dive in and discuss the background and the holding in the Harbor Healthcare case. We can compare it to some other circuit court cases addressing similar issues, and then I’ll conclude by offering some high-level observations about the decision for practitioners in this space.

 

So by way of factual background, Harbor Healthcare is a healthcare provider that provides hospice, home health services, and some other services, and it became the subject of two False Claims Act qui tam lawsuits in 2014 and 2017. And in connection with those qui tam suits, the Department of Health and Human Services Office of Inspector General issued a request for information, and in March of 2017 issued a civil investigative demand to the company seeking documents and interrogatory answers.

 

Harbor’s in-house director of compliance—a non-lawyer position—coordinated the response to the request for information and the CID. However, the facts of the record show that the compliance director worked closely with a solo practitioner outside counsel who had previously served as the company’s general counsel. In the course of the government’s investigation, the DOJ shared the allegations from the FCA suits with criminal prosecutors. And based on the sharing of information, the US Attorney’s Office for the Eastern District of Texas sought search warrants for Harbor Healthcare locations in Louisiana and Texas. And as part of that process, the government got approvals for warrants from magistrate judges in the Western District of Louisiana, the Eastern District of Texas, and the Southern District of Texas.

 

In May of 2017, the government executed those search warrants and collected a pretty wide swath of information. They collected 29 smartphones, 20 computers and/or hard drives, and email accounts for 17 employees for a total of 3.6 terabytes, roughly. As part of that warrant execution, the government also seized that in-house compliance director’s computer, email account, iPhone, and all the hard copy documents in his office which contained communications with the outside counsel who was assisting in the response to the FCA CID and requests for information.

 

As part of the seizure and processing of the information that was seized by the warrants, the government assembled what’s called a filter team or taint team from a separate division of the Eastern District of Texas US Attorney’s office to review those seized materials for potentially privileged information. In response, Harbor Healthcare and its counsel repeatedly attempted, but failed, to meet with head of the taint team to discuss the review procedures regarding the protection of the privilege.

 

Shortly thereafter, Harbor initiated litigation in the district court for the Southern District of Texas. And they filed a motion under Federal Rule of Criminal Procedure 41 to recover the privileged material that was seized as part of the execution of the search warrants. So the Federal Rule of Criminal Procedure 41 covers searches and seizures pursuant to search warrants, and Rule 41G allows parties to file a motion for the return of property. And the relevant text is that a person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion may be filed in the district where the property was seized, and the court must receive evidence on any factual issue necessary to decide the motion.

 

Because there was no criminal matter pending at the time—Harbor had not been charged or indicted—the matter was filed as a stand-alone civil case in the Southern District of Texas. Interestingly, the government did not initially respond to the 41G motion, but the court ordered a hearing once Harbor filed for entry of default and the default judgment. The government moved to transfer to the Eastern District where the warrants had been executed—and the investigation was ongoing—but the court, rather than rule on the 41G motion or the motion to transfer, encouraged the parties to consider a privilege review plan where the government would give Harbor information about the documents that it had seized, that Harbor would then produce a privilege log of the documents it believed were protected by either the work product doctrine or the attorney-client privilege, and that the government would have the opportunity to object to those assertions. The court would then review the log and proceed.

 

Now, the district court proposed that that plan would only begin with a test run on this in-house compliance director’s email. The government moved to dismiss for lack of equitable jurisdiction on grounds that Harbor had not alleged irreparable harm and that what they were effectively bringing was a premature suppression motion for a criminal case. The court declined to rule on that motion at the time. As part of the back and forth over the privilege plan, Harbor identified nearly 4,000 emails from the compliance director’s email account that were privileged and received a list of documents that had been already provided to the investigation team by the filter team which Harbor believed were privileged.

 

The district court took all this under advisement and decided to grant the motion to dismiss Harbor’s motion and held that it would no longer exercise equitable jurisdiction over the case, for two grounds. It held that it was assured that privileged information was protected because the parties had reached a working agreement to reasonably address any privilege assertions to the joint screening plan, and in the alternative, Harbor could always make these arguments in a post-indictment motion to suppress. Harbor moved for reconsideration and the court denied that motion for reconsideration.

 

After that, Harbor Healthcare appealed to the Fifth Circuit. The panel that was assigned to the matter was Judge Higginbotham, Judge Elrod, and Judge Haynes. They heard the appeal and oral argument, and in July of this year, the Fifth Circuit issued a unanimous per curium opinion holding that the district court had erred in dismissing the 41G motion for the return of property.

 

And so, we can walk through the court’s fairly brief opinion, but under governing Fifth Circuit precedent, courts weighing Rule 41G motions for the return of unlawfully seized property requires the court to consider four factors. The first factor is whether the motion for return of property or documents accurately alleges that government agents displayed a calloused disregard for the rights of the plaintiff. The second factor is whether the plaintiff had an individual interest in and need for the material whose return he or she seeks. The third factor is whether the plaintiff would be irreparably injured by the denial of the return of property. And the fourth and final factor is whether the plaintiff has an adequate remedy at law for the redress of this grievance.

 

Weighing those factors, the Fifth Circuit panel issued a relatively short 13-page opinion in which it went through the four factors in a fairly workmanlike fashion. On the first factor, whether the government agents had exhibited callous disregard for Harbor’s rights, the Fifth Circuit held that the government had, in fact, demonstrated that disregard and relied on two primary facts. First, the court noted that although the government had sought a warrant, it was stipulated by the government that they did not seek express authorization from the magistrate judges issuing the warrants that they would be seizing attorney-client privileged materials.

 

I’ll note, at this point, that some commentators have noted that this is somewhat of a new or surprising development as it’s not traditionally been understood to be a judicial requirement to seek express authorization from magistrate judges, particularly in cases such as this where you’re not dealing with a lawyer but a compliance director. However, the court took note of this and weighed this in holding that the government had demonstrated disregard for Harbor’s privilege rights.

 

Second, the court held that the government had not destroyed or returned the government -- or returned to Harbor the documents that, at this point, it agreed were privileged. So, after the seizure, there had been this review process, and the government had agreed that there were a subset of documents that were protected by attorney-client privilege. When pressed at oral argument why those documents had not been destroyed or returned, the government offered that they had not been destroyed so that a future filter team could look at them if the criminal investigative team looked at the privileged logs, disagreed, and wanted to push on a privilege determination.

 

The court really did not like that and -- the implicit, but unstated, idea that the prosecution team might get multiple bites at the apple after an initial filter team had determined that things were privileged. And the court went so far as to say that a taint team serves no practical effect if the government refuses to destroy or return documents once they’re identified as privileged and so held that the continued retention of documents that it agreed were privileged was further evidence of the government’s disregard for Harbor’s privilege rights. So that’s the first factor.

 

The second factor is whether Harbor had established a need for the return or the destruction of the materials. And here, the Fifth Circuit held that the district court erred and misunderstood Harbor’s need in getting the return or destruction of the documents. The district court had held that because Harbor had its own copies, it didn’t need access to the government’s copies of the documents. And the Fifth Circuit said that that’s not really what Harbor’s need is. Harbor’s need is not to access the government’s copies of its own documents, but to protect the privacy—the privileged material—in those documents and to prevent the government’s continued possession of them.

 

On the third factor, that of irreparable injury, the court held that the continued possession of privileged documents represented an ongoing intrusion of Harbor’s privacy and that that injury remained ongoing as long as the government retained those documents.

 

So the fourth and final factor was whether Harbor had some remedy at law. And here, the Fifth Circuit rejected the view that Harbor could simply move to suppress if and when a criminal case or charge was brought against Harbor. The court, in reaching that determination, noted two things. First, the court noted that it would be unclear if there ever was going to be criminal proceeding against Harbor, and even if there was a criminal proceeding, a suppression motion is different than a Rule 41G motion and addresses and vindicates different interests entirely.

 

A suppression motion, the court held, is focused on the admissibility of evidence in a criminal trial, and Rule 41G is focused on the return of wrongfully seized materials to the prior owner of those materials.

 

Based on those factors, the court reversed and remanded to the district court for further proceedings. That mandate was issued a couple weeks ago on September the 7th, to the district court. It appears that Harbor has moved for an order to show cause why the government should not be held in contempt and sanctioned and has requested an evidentiary hearings. Now those pleadings are -- those papers are -- remain under seal, so we don’t know exactly what Harbor is moving for, but a status conference has been set for October 5th for any of those who are following this matter closely and want to see how it proceeds.

 

So that’s the background on the Harbor Healthcare case and its assessment of 41G and the use of filter teams and the return of materials that the government and the defense agree are privileged. I think, at this point, it would be helpful to step back and put the Harbor Healthcare case in the context of other recent circuit decisions dealing with similar issues. This is a recent case. It sits well with a couple of other circuit court cases that have assessed the treatment of privileged material by filter teams or taint teams. And one thing that I want to note from the outset is, it doesn’t appear that these are circuits -- or that there’s a trend to outright prohibit the use of filter teams by the government, but there does appear to be a trend expressing concerns about how these filter procedures, these taint teams, are structured and set up in a way to balance parties’ privilege rights against the government’s access to information in an investigation.

 

So I’d like to walk through three instructive cases over the last 15 years dealing with filter teams and filter procedures to show some of the concerns that circuit courts have been raising about their use. So the first one I want to cover—and probably one of the most instructive—is a Sixth Circuit case from 2006 titled In re: Grand Jury Subpoenas. And in that case, the facts are a little different. And in that case, a federal grand jury had issued two subpoenas to a company and an individual who had previously controlled that company, along with several affiliated companies, moved to intervene in the subpoena response. And that individual demanded the right to conduct his own privilege review of the documents that were responsive to the subpoena as he was likely to be adverse to the company at some point in the future and there were documents in the company’s possession that were likely protected by his own personal work product protections and attorney-client privileges.

 

The government opposed this motion to intervene and asserted that any privilege review should be done by a government taint team that would be able to -- that would receive all responsive documents from the company. It would return to that company any documents that it had determined to be privileged and, where appropriate, would let the individual weigh in on documents that the government deemed were potentially protected by his privileges. However, the proposed procedure allowed the taint team to send documents that it deemed not to be protected by the privilege directly to the grand jury, and thus, the individual who had moved to intervene would not have any opportunity to review or challenge the government’s privilege determination with respect to those documents.

 

In an opinion written by Judge Boggs, the Sixth Circuit rejected this proposed procedure and held that the taint team procedure would present too great a risk to that individual’s enjoyment of privilege protections. And so Judge Boggs, in his opinion, although he was addressing sort of a very specific application of the procedures and a very specific filter procedure, offered some observation about the use of filter teams that I think are fairly generally applicable. And so the Sixth Circuit panel noted that taint teams tend to be used primarily in limited exigent circumstances where the government’s already seized documents through a search warrant. And once the government has possession, it’s just a different situation than it is here where there’s a third-party asserting privilege rights over documents that haven’t been produced to the government.

 

Separately, the Sixth Circuit panel noted that taint teams present inevitable and reasonably foreseeable risks to parties’ privilege rights. He noted multiple cases in the past where the government, either through mistake or an honest difference of opinion, had leaked confidential and privileged information over to the investigation and the prosecuting team.

 

The Sixth Circuit also observed that there’s just simply a tension in the interests of the government filter team and that, although they may have an interest in preserving the privilege, there is a conflicting interest in pursuing the underlying investigation and it just is a -- there’s a tension in the interest that a government filter team is going to be able to call balls and strikes in the same way that a neutral arbiter would be able to. And in fact, Judge Boggs went so far as to say that with a filter team, the government’s fox is left in charge of the appellant’s henhouse and may err by neglect or malice, as well as by honest difference of opinions. And he particularly singled out the fact there -- under the procedure that he was reviewing, there was an opportunity for the government to unilaterally determine that documents were not privileged and give them to the investigation team without any check by a court or by the appellant who was asserting the privilege.

 

And so taking all that in stride, the Sixth Circuit held that the use of a government taint team was inappropriate in those circumstances and held that the appellants had to be given the opportunity to conduct their own privilege review and required that a special master be appointed to be a neutral arbiter in privilege determinations. So that’s the Sixth Circuit case in 2006.

 

The other really instructive case is the Fourth Circuit case from 2019, In regards to a Search Warrant Issued on June 13, 2019. And so to cover this very briefly, the government executed a search warrant against a Baltimore law firm in 2019. And the facts are a little complicated and not something we need to cover in great depth today, but at a very high level, the government was investigating allegations of drug and money laundering and was concerned that an attorney at the law firm in subject was obstructing those investigations. So they obtained a warrant and seized materials from the Baltimore law firm.

 

As part of the warrant approval process, the magistrate judge who approved the warrant also authorized a filter team procedure at the same time that the warrant was approved. And under that procedure, the filter team also could forward non-privilege materials directly to the prosecution investigation team without a court approval or objections from the party. However, where there was responsive and potentially privilege materials in the filter team’s view, they could seek an agreement with the law firm or with the clients who held the privilege.

 

Interestingly, the filter team procedure approved by the magistrate judge stated that the government could also go directly to the law firm’s clients and seek a waiver of the privilege directly from those clients. This was litigated by the law firm, and at the district court level, the review procedure was modified so that the court or the law firm had to approve or agree before the filter team could provide anything to the prosecution team.

 

Now, this is a fairly factually unique matter. It’s different than the Harbor Healthcare case or the Sixth Circuit case, but the facts throughout the litigation established that the overwhelming majority of the material seized from the law firm were not related to the matter at issue. And I offer that only because I think it covers the -- it colors the Fourth Circuit’s response. It turns out that less than one percent of the emails seized as part of this execution against the law firm were to or from the client who was at issue or included his name. And so there was a significant number of materials -- in fact, the overwhelming majority of materials were not related to the government’s investigation, and it was also established that a significant number of the matters in which the firm was involved—had nothing to do with the government’s investigation—were matters that were separately under investigation by the US Attorney’s Office for the District of Maryland.

 

So on review, the Fourth Circuit rejected the magistrate judge’s filter team procedure on three separate grounds. First, the court held that the filter team procedure impermissibly assigned judicial functions to the government’s filter team. The Fourth Circuit held that privilege determinations are a judicial function and cannot be delegated entirely to the government. The court also noted that this delegation was compounded by the fact that the procedure allowed agents, rather than attorneys, to also participate in making privilege calls.

 

I’ll note that the majority is a little ambiguous as to whether this is an impermissible delegation of the judicial function entirely or because the procedure allowed the government filter team to unilaterally send documents over to the prosecution team without any backstop or check by the court or the opposing party. I will note, however, that based on Judge Rushing’s concurrence, it appears that the concern is the latter -- that the government filter team was able to unilaterally send over documents that it had deemed not privileged without any double-check from a court or allowing the law firm to weigh in and raise objections.

 

Second, the court rejected the procedure on the grounds that the magistrate judge had approved the filter procedure ex parte. The Fourth Circuit held that rather than approve the filter procedure at the time that the magistrate judge granted the warrant, that the judge should have held over the filter and review procedures until the warrant was executed and should have admitted of an adversarial proceeding where the law firm and its clients could weigh in on the privilege review procedures.

 

And lastly, the court held that the procedure simply didn’t adequately consider the privilege concerns of the law firm or its clients. There was a couple things. One, there was a real concern about attorneys from the US Attorney’s Office being able to look at other emails that necessarily would relate to other matters being investigated by that office. And second, the court just wholesale rejected that the original procedure allowed the filter team to contact the law firm’s clients directly and get a waiver. It noted that under a lot of the rules of professional practice, that you can’t go around a represented party’s attorney and contact that client directly and raised real concerns about that.

 

So the court rejected those procedures, and since they were reviewing it, the procedure was a motion for an injunction. The court also looked at the other injunctive factors and held that the public interest and the equities lay in favor of injunctive relief. It noted that it just simply appeared unfair to an outside observer that the US Attorney’s Office from Maryland, which was investigating a number of the law firm’s other clients, would have access to those materials even though they had nothing to do with the investigation that precipitated the issuance of the warrants, and it would harm the law firm by potentially chilling their clients from communicating with them for fear that their communications might end up with the US Attorney’s Office. So they rejected the filter team procedure and remanded back to the district court.

 

The last case I want to cover quickly is an Eleventh Circuit case that was decided last month. And I offer it as a counterpoint or a counterbalance to the cases we’ve talked about before. So the three cases I’ve summarized so far, really, are cases where the Circuit Court of Appeals weighed in and expressed concerns about how the filter team or taint team was structured. And Eleventh Circuit offered a counterpoint to that a couple weeks ago. And so this is a case arising out of a warrant that was executed in the Southern District of Florida. It was part of a drug money and laundering investigation. And the government executed a search warrant at a suite of business offices and as part of that, they seized materials from an in-house attorney. The parties filed a Rule 41G motion and --challenging and calling for the return of that information. Of note, the government had set up a filter protocol and a taint team that was slightly different than the prior procedures that I’d mentioned before.

 

So, under this modified protocol in the Southern District of Florida, the parties—the movants—had the opportunity to review everything and conduct the initial privilege review. However, once they conducted the initial privilege review and submitted a privilege log to the government, the government’s filter team would be allowed to review the documents on the log and challenge those designations. If they were unable to reach a resolution between themselves, they would then go to the court and get a resolution in any disputes. So the only thing that would ever be produced to the government’s investigative team would be items for which the parties had agreed or for which the privilege had been overruled by a special master or the judge.

 

The movants moved to the Eleventh Circuit, and the Eleventh Circuit rejected the appeal and basically noted that it was not going to entertain an argument that taint teams or filter teams are, per se, inadmissible. It noted that although there have been prior circuit court cases— including some that I’ve described—that raised concerns about filter teams, this particular team did not raise -- procedure did not raise those concerns, and the Eleventh Circuit was not willing to prohibit them outright. And so I offer that as just sort of a counterpoint to the cases I’ve described so far.

 

So at this point, I just want to offer a couple of high-level observations about the circuit court’s approach to the seizure and review of privileged information. And as I noted, I don’t want to overstate this trend in the circuit courts. This is not a suggestion that taint teams are, per se, admissible or even that that trend is headed that way or that there’s likely to be a circuit who -- or a trend to do so.

 

Just based on some quick research, it looks like the Second, the Third, the Fourth, even the Fifth Circuit, the Seventh, Eighth, Ninth, Tenth, and the Eleventh, as I just mentioned, have all approved or declined to criticize filter teams in certain circumstances. And so I don’t want to overstate the trend here. But it does appear that there is, at least, a trend of courts expressing concerns about protecting the privilege in situations such as this and imposing modifications, oversight, or limits on the use of filter teams and taint teams. And so I think it’s helpful for attorneys like me, who are on the defense side, or even attorneys on the government, to just be aware of these cases and some of the considerations that circuit courts have been aware of to help them navigate these issues as they go forward.

 

And none of these concerns or factors are unanimously held or universally applicable. As you can tell from my description, all of these procedures and reviews are very fact-dependent. How were the documents seized? Who were they seized from? Who were the parties? What are the procedures for how documents get from a review team over to an investigation team? But a couple of the factors that seem to be percolating in these cases are at least, number one, an awareness that government review teams -- that there’s a tension, if not a conflict, in the interest that a government review team has to deal with, and that given the tension that the government review team may interpret the privilege more narrowly than the party holding the privilege might.

 

The second consideration is just an awareness that it’s incredibly hard to put the genie back in the bottle if the investigation team receives privileged information. If the review team reaches a different call than a court leader does or than the parties would, you just -- things get particularly messy if documents end up with the prosecution or the investigation team.

 

The next factor is just that privilege calls are really context-dependent. What are the different relationships between employees and counsel? In what role was advice offered in? And they’re very hard to assess in a vacuum, and sometimes it’s hard for government teams, sort of, dropping in to make those calls.

 

The other factor that seems to be coming through in some of these cases is that parties or courts should at least have the opportunity to -- parties should have the opportunity to challenge and courts should review privilege determinations before a filter team sends anything over to a prosecution team. It appears that courts are really skeptical of procedures where the filter team can unilaterally send materials they deem non-privileged over to the prosecution team without any check. Where the procedures allow, the party asserting the privilege to review and oppose or object and have a special master or a judge weigh in on a dispute before it goes over -- those seem to be viewed more favorably by the circuit courts.

 

And then the last observation that comes out of Harbor is this concern that once something is determined to be privileged, the government may not be able to hang on to it just by segregating it and saving it for a later date. There may actually be a need to destroy and/or return those documents to the party from whom those materials were seized.

 

There’s also this last thing from the Fourth Circuit case that -- it’s important to keep in mind, that privilege determinations are ultimately a judicial function. And so courts might be increasingly exercising oversight in these review procedures. They might be more willing to use magistrate judges and special masters than rely too heavily on a government team, and they’re also going to be particularly skeptical of situations where the filter procedure has been approved ex parte. And so where the procedure has been tested through an adversarial process, the procedure might be on firmer footing.

 

One last word of observation that I’ll note here is that there’s an interesting institutional dynamic going on here. It appears that -- and this is a limited sample size, but it stands to reason that the district courts and the magistrate judges tend to be more willing to allow the government to structure a filter procedure and review it than perhaps on the circuit courts. And that’s entirely understandable -- that given the volumes and the number of documents here, district courts and magistrate judges are going to be hesitant to take on a review of huge amounts of material or documents. And so they’re going to search for, understandably, efficient procedures and they may be more willing to entertain filter team procedures than the circuit courts. And so there’s just an interesting institutional dynamic where it appears that, maybe, district courts are going be, sort of, more accepting of filter team procedures than the circuit courts are -- who are not going to be the ones actually having to review and make privilege calls on individual documents.

 

Last couple of observations I’ll offer in the last couple minutes -- and I note that all this is very context-dependent, really dependent on the facts of the case that you’re dealing with, but whenever you get to these situations where you’re dealing with the seizure of documents and information and debates over, and litigation over, filter teams and debate -- about taint teams and filter teams, it’s really a sign that trust has broken down between the parties. And so it just counsels that wherever possible -- and you’re dealing with a case like this, it’s important to, sort of, be proactive, collaborative, to communicate well because where you can advance and come up with negotiated procedures that are going to protect the party’s privilege determinations while allowing the government to get the information they need, it’s a much better situation to be in than where trust breaks down and you’re ending up having to go to court and litigate over privilege review/taint teams.

 

It’s just much better, if you can, to negotiate and, in good faith, come up with a procedure beforehand. Like I said, it’s always context-dependent but just sort of an observation. And it’s important to just keep these cases in the back of your mind. And as you work to make sure you protect the privilege client’s communications, just be aware of some of these factors that courts have considered, both in the Harbor case and in these other cases that I have flagged and summarized on this Teleforum.

 

I appreciate the chance to talk about these cases. I’m going to continue to monitor them. If anybody has any questions, I’m happy to take them at this time. Evelyn, I’m not seeing any questions. I’m happy to stay on for a little bit but also happy to close it and if anyone has questions, they know where to find me and can reach out to me directly if they’d like.

 

Evelyn Hildebrand:  I think we do have one question, actually, asking for the citations for the cases you discussed.

 

William McClintock:  Yes, I think I can. I can, at least, for the ones that I have right in front of me. The Harbor Healthcare case I have -- the Fifth Circuit case number is 19-20624. I’m sorry I don’t have the reporter citation directly in front of me. For the Sixth Circuit case, that case is In re: Grand Jury Subpoenas, and the reporter cite is 454 F.3d 511. For the Fourth Circuit case, that’s In re: Search Warrant Issued June 13, 2019, and that reporter cite is 942 F.3d 159. And that’s the Fourth Circuit in 2019. And then the Eleventh Circuit case, I have the district court cite. I don’t believe that the Eleventh Circuit -- I have a reporter cite, but the district court cite is 2020 WL 6689045. And I actually do not have the Eleventh Circuit case number in front of me in my notes. I apologize for that.

 

      So those are the major cases I cited. Hope that’s helpful. Looks like the next question is, “Are filter teams and taint teams the same thing?” Not a dumb question at all. Yeah, they are the same. It’s just different language used in different district courts and circuit courts. So they are the same thing, and I should have flagged that.

 

      The next question is, “Are there any thoughts on the future of Boyd v. United States after the Carpenter and Gorsuch dissent?” I’m hesitant to get over my skis. I wouldn’t want to -- I have not read those recently and so any opinion I offered here would be uninformed, but it’s a great question and one I will certainly consider. All right. Well, I think that’s all of them. And I thank everybody for their time and thank The Federalist Society for the opportunity to present.

 

Evelyn Hildebrand:  Thank you very much. It sounds like you answered everyone’s questions before they even asked them, so thank you for taking the time to discuss this afternoon. We welcome listener comments and feedback by email at info@fed-soc.org, so if you have any comments, please send them that direction. With that, thank you so much for taking the time to comment this afternoon. Thank you to our participants who are sending in questions and tuning in. And we are adjourned.

 

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.