Of course, this raises a thorny issue: How do the agents and prosecutors review the documents for privilege status, if the entire point of privilege is that it's not supposed to be seen by people outside the lawyer's office, particularly members of law enforcement?

The U.S. Attorney's manual proposes a solution to that conundrum: A "taint team." Also called a "privilege team," this is a group, consisting of agents and lawyers not involved in the underlying investigation, brought in to review the privileged documents.

If this sounds like a strange fix, some courts agree, and have expressly disapproved of the government's use of taint teams to review documents, including the federal court in the same district where the search of Cohen's office occurred.

Some courts have even held that where the government uses a taint team, the government bears the burden to rebut the presumption that tainted material was improperly provided to the prosecution. Other courts have suggested that it would be preferable for the privilege review to be done by magistrate judge, and not a privilege team comprised of DOJ agents and lawyers

The term privilege team is better but I will not be able to get the term taint team out of my head

pbmus

(12,422 posts)

15. Interesting, I would prefer a team to look at material..

Reply to Gothmog (Reply #14)

Tue Apr 10, 2018, 05:37 PM

Apr 2018

Not a sole person...thanks for your posts...

Gothmog

(145,291 posts)

16. I found a link to the lawsuit

Reply to pbmus (Reply #15)

Tue Apr 10, 2018, 06:23 PM

Apr 2018

Here is part of the manual https://www.justice.gov/usam/usam-9-13000-obtaining-evidence#9-13.420

9-13.420 - Searches of Premises of Subject Attorneys
NOTE: For purposes of this policy only, "subject" includes an attorney who is a "suspect, subject or target," or an attorney who is related by blood or marriage to a suspect, or who is believed to be in possession of contraband or the fruits or instrumentalities of a crime. This policy also applies to searches of business organizations where such searches involve materials in the possession of individuals serving in the capacity of legal advisor to the organization. Search warrants for "documentary materials" held by an attorney who is a "disinterested third party" (that is, any attorney who is not a subject) are governed by 28 C.F.R. 59.4 and USAM 9-19.221 et seq. See also 42 U.S.C. Section 2000aa-11(a)(3).

There are occasions when effective law enforcement may require the issuance of a search warrant for the premises of an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients. Because of the potential effects of this type of search on legitimate attorney-client relationships and because of the possibility that, during such a search, the government may encounter material protected by a legitimate claim of privilege, it is important that close control be exercised over this type of search. Therefore, the following guidelines should be followed with respect to such searches:]

Here is the part dealing with privilege teams or taint teams

Review Procedures. The following review procedures should be discussed prior to approval of any warrant, consistent with the practice in your district, the circumstances of the investigation and the volume of materials seized.
Who will conduct the review, i.e., a privilege team, a judicial officer, or a special master.
Whether all documents will be submitted to a judicial officer or special master or only those which a privilege team has determined to be arguably privileged or arguably subject to an exception to the privilege.
Whether copies of all seized materials will be provided to the subject attorney (or a legal representative) in order that: a) disruption of the law firm's operation is minimized; and b) the subject is afforded an opportunity to participate in the process of submitting disputed documents to the court by raising specific claims of privilege. To the extent possible, providing copies of seized records is encouraged, where such disclosure will not impede or obstruct the investigation.
Whether appropriate arrangements have been made for storage and handling of electronic evidence and procedures developed for searching computer data (i.e., procedures which recognize the universal nature of computer seizure and are designed to avoid review of materials implicating the privilege of innocent clients).

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