For the Defense - Vol. 6, Issue 4 - 42

the privilege holder the ability to conduct the
initial review of potentially privileged material
and create a privilege log before the filter team
was allowed to review any potentially privileged
materials. Under that protocol, a purportedly
privileged document could only be released to the
investigation team if the privilege holder waived
its objection or a court order directed that the
document be turned over.6
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
Second, as In re Optima acknowledges, only
" some " of its sister circuits have approved of
the use of government filter teams. Others-
particularly the Fourth Circuit-have not taken
such a positive view. In In re Search Warrant Issued
June 13, 2019,7
the Fourth Circuit concluded, after
carefully weighing the parties' arguments, that
the use of a filter team to review documents that
had been seized from a law firm was " improper
for several reasons, including that . . . the
Team's creation inappropriately assigned judicial
functions to the executive branch, the Team was
approved in ex parte proceedings prior to the
search and seizures, and the use of the Team
contravenes foundational principles that protect
attorney-client relationships. " The Fourth Circuit
discussed in detail the " important legal principles
that protect attorney-client relationships " and
how " [a]bsent privacy of communications and the
'full and frank' discussions that flow therefrom,
a lawyer could be deprived of the information
necessary to prepare and present his client's
defense. " 8
team to review privileged materials constituted
harm that was " plainly irreparable, in that the
Filter Team's review of those privileged materials
cannot be undone " and that the use of a filter
team improperly assigns a judicial function to
the executive branch because it " erroneously
authorize[s] . . . the Filter Team . . . to make decisions
on attorney-client privilege and the work-product
doctrine. " 9
In short, the Fourth Circuit concluded
Other courts have similarly
that the magistrate's authorization of a filter team
was in blatant " disregard of the attorney-client
privilege, the work-product doctrine, and the
Sixth Amendment. " 10
cast doubt on the use of filter teams.11
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
It then concluded that allowing a filter
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
Although the propriety of government filter
teams and the circumstances in which they may be
used remains unsettled, In re Optima and similar
cases alert criminal defense practitioners to at
least one important lesson: left unchallenged, the
government may be permitted to unduly invade
a privilege holder's rights through the use of a
filter team procedure. Regardless of whether
that invasion occurs intentionally, inadvertently,
42 For The Defense l Vol. 6, Issue 4
File your client's motion after the
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
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or due to a difference in opinion over whether a
particular document is privileged,12
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that defense counsel should endeavor to avoid in
the first instance. It is therefore critical for defense
attorneys to consider making timely and strong
objections to any government filter team protocol
that does not sufficiently protect a privilege
holder's rights. The exact scope of those objections
will depend on the circumstances of each case,
but, in many cases, some form of an objection to
the use of government filter team will likely be
required both as a matter of equity and ethics.13
Though defense counsel ultimately may not be
able to entirely keep the government fox out of
the henhouse, the above cases provide a roadmap
for keeping that fox at bay and protecting a
client's " sacred " privileges in the process.14
NOTES:
1
22/58/92
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
5
NOTES:
1
About the Author
Click here to view and/or print the
full notes section for this article.
In re Sealed Search Warrant & Application for a Warrant by Tel.
or Other Reliable Elec. Means ( " In re Optima " ), 11 F.4th 1235
(11th Cir. 2021).
2
Id. at 1238.
Id. at 1249-50 (noting that the privilege holders challenging the
use of a filter team had " cite[d] no cases for the broad remedy
they seek: a holding that government agents 'should never ...
review documents that are designated by their possessors as
attorney-client or work product privileged' until after a court has
522-23 (6th Cir. 2006)).
5
Id. at 1250 (citing In re Grand Jury Subpoenas, 454 F.3d 511,
Id. at 1249 (citing United States v. Jarman, 847 F.3d 259 (5th
3
ruled on the privilege assertion " ).
4
Cir. 2017); S.E.C. v. Rajaratnam, 622 F.3d 159, 183 & n.24 (2d Cir.
2010); In re Search of Elec. Commc'ns in the Acct. of chakafattah
gmail.com at Internet Serv. Provider Google, Inc. ( " In re Search of
Elec. Commc'ns " ), 802 F.3d 516, 530 (3d Cir. 2015); United States
v. Myers, 593 F.3d 338, 341 n.5 (4th Cir. 2010); United States v.
Proano, 912 F.3d 431, 437 (7th Cir. 2019); United States v. Howard,
540 F.3d 905, 906 (8th Cir. 2008); United States v. Christensen, 828
F.3d 763, 799 (9th Cir. 2015); United States v. Ary, 518 F.3d 775,
780 (10th Cir. 2008)).
6
Id.; see also id. at 1243 ( " Under the new protocol, the
Intervenors were to conduct an 'initial privilege review of all
seized items [and] provide a privilege log to the government's
filter team.' Then the government's filter team, which the
magistrate judge required to be composed of attorneys and
staff from outside the investigating office (the United States
Attorney's Office for the Northern District of Ohio's Cleveland
branch office), would have the opportunity to challenge any
privilege designation on that log. Although the filter team
would be 'permitted to review any item on the privilege log
in order to formulate a challenge[,]' the investigation and
prosecution team would be prohibited from receiving any items
on the privilege log 'unless agreed to by the parties or the Court/
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Vol. 4, Issue 4 l For The Defense 9
special master ha[d] overruled the privilege.' " ).
7
9
942 F.3d 159, 164 (4th Cir. 2019), as amended (Oct. 31, 2019).
8 Id. at 172-75.
Id. at 175, 176-77. The Fourth Circuit also noted that the
concern is heightened in situations where the filter team includes
non-lawyer members who are making privilege determinations.
Id. at 177. The Third Circuit shares those concerns. See id.
( " The Third Circuit has strongly criticized a similar protocol and
explicitly ruled that non-lawyer federal agents could not make
privilege determinations. " ) (citing In re Search of Elec. Commc'ns,
802 F.3d at 530 & n.54).
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
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For the Defense - Vol. 6, Issue 4

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

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