taint teams, filter teams, Department of Justice, DOJ, fourth amendment, search warrants, attorney client privilege


In this Article, we examine the legal landscape in which taint teams operate, why taint teams are constitutionally problematic, and propose a solution to protect the attorney-client privilege. In Part I, we will first describe what taint teams are supposed to protect—attorney-client privilege. Next, we review how a taint team gets its documents to review, namely the doctrine surrounding (secret) search warrants. Part I ends with a non exhaustive summary of remedies available when attorney-client privilege is violated during searches. In Part II, we explain the current policies and practices surrounding taint teams, including sources of procedure for taint teams and the use of warrants for electronic information. Part II concludes with a summary of the lopsided pre-2019 split in authority on the use of taint teams in federal criminal prosecutions. Part III is devoted to examining the constitutional and practical shortcomings of the current formulation of taint teams. Using a 2019 case that forcefully criticized the use of taint teams, we explore constitutional issues under the Bill of Rights and separation-of-powers doctrine. Part III concludes with a discussion of the federal government’s proposed solution to these judicially identified deficiencies and an explanation of why that solution is wholly inadequate. In Part IV, we review a series of possible solutions already in practice in various jurisdictions and then propose a new solution to resolve the constitutional issues of taint teams and protect attorney-client privilege. Specifically, we propose a new structure that locates privilege-review teams as a function within the federal public defender’s office, where judicial officers make recommended privilege determinations subject to judicial review. We explain that this solves the Fourth Circuit’s constitutional criticisms while simultaneously recognizing the need to review potentially privileged materials by someone other than the target of an investigation.