In a new Contemporary Legal Note published by the Washington Legal Foundation (“WLF”), titled “Federal Taint Teams And Attorney-Client Privilege In Corporate Criminal Investigations,” Hyman, Phelps & McNamara P.C. Director Douglas B. Farquhar explores issues surrounding privileged material and so-called “taint teams” when government investigators seize company materials that may be used to build a criminal case. “Taint teams,” which are described in the U.S. Attorneys’ Manual (Section 9-13.420(E)) as “privilege teams,” are supposed to determine what material is privileged, and to ensure that agents and prosecutors working on an investigation and prosecution do not gain direct or indirect access to secrets (usually attorney-client privileged material).
Mr. Farquhar describes how “taint teams” operate, highlights some areas of concern about attorney-client privileged information, and recounts the skepticism that some courts have expressed about the ability of “taint teams” to provide a fair assessment of whether a privilege applies to certain seized company material. “In an era with more frequent revelations of serious prosecutor conduct,” writes Mr. Farquhar, “defense counsel and courts are left to wonder what prosecutorial misconduct has not been discovered or disclosed. Prosecutors tend to work pretty closely together within the Department of Justice, and, although aspersions are not intended to be cast on the vast majority of federal prosecutors, the author and many other defense counsel can recount incidents where prosecutors engaged in ethically questionable conduct to increase the likelihood of a successful prosecution, or to produce pressure to accept an offered plea bargain.”