For the Defense - Vol. 6, Issue 4 - 41

Keeping the Fox Out of the Henhouse:
Are Government 'Filter Teams' Legal?
Patrick J. Egan
and Saverio S. Romeo
I
magine giving power of attorney over your
bank account to a spendthrift relative with
whom you had recently had a falling out.
Would you expect all of your money to be there
the next day? Would the threat of criminal
repercussions be enough to dissuade your relative
from putting his or her own interests before
yours? Many criminal defense practitioners would
understandably scoff at such a notion. Why would
you ever trust someone to protect your interests
when that individual has every reason not to? That
is precisely the philosophical question that was at
issue in a recent Eleventh Circuit case addressing
the legality of government " filter teams, " 1
which
are frequently used by the government to conduct
a privilege review of materials obtained during
the course of an investigation.
In In re Optima, the Eleventh Circuit considered
whether the government's use of a filter team,
which was comprised of federal prosecutors
from another U.S. Attorney's Office, to review
potentially privileged documents that had been
seized pursuant to a search warrant " necessarily
violates the privilege holder's rights. " 2
The
Eleventh Circuit answered that question in
the negative, finding that there is no blanket
prohibition on government review of potentially
privileged materials.3
Indeed, the Eleventh Circuit
noted, because " the records [were] already in
the government's possession as the result of the
execution of a search warrant . . . the use of a
filter team to review them " would be " 'respectful
of, rather than injurious to, the protection of
privilege.' " 4
that it was not breaking new ground as " some
of [its] sister circuits have approved of the use of
a walled-off government filter team to review
documents for privilege. " 5
At first glance, In re Optima may appear to signal
a dead end to any argument that it is the privilege
holder, rather than a government filter team, that
should be conducting a privilege review of seized
or subpoenaed documents in the first instance.
However, a closer look at In re Optima, and similar
cases from other circuits, provides some hope-
even though a federal district court may not
conclude that filter teams are categorically illegal.
First, In re Optima recognizes that government
filter teams are only permissible when there
are sufficient safeguards in place to protect the
privilege-holder's rights. Although the scope of
those safeguards remains up for debate, the filter
team must at least be walled off from the team
that is investigating and prosecuting the case. The
specific protocol at issue in In re Optima also gave
Vol. 6, Issue 4 l For The Defense 41
The Eleventh Circuit further noted

For the Defense - Vol. 6, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 4

Contents
For the Defense - Vol. 6, Issue 4 - 1
For the Defense - Vol. 6, Issue 4 - 2
For the Defense - Vol. 6, Issue 4 - Contents
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