Finding that a lower court had underestimated the harm resulting from the government’s seizure and ongoing possession of privileged material, the Fifth Circuit ruled recently that a “taint team” process was insufficient to protect the rights of the party holding the privilege. The appellate court’s ruling is part of a trend in which courts have expressed skepticism that the use of “taint teams” by the government is an adequate safeguard against undermining the sacrosanct attorney-client privilege.
As part of a criminal investigation spawned by civil False Claims Act qui tam actions, the government executed search warrants at the offices of Harbor Healthcare System and seized “a wealth of information protected by the attorney-client privilege” including communications between the company’s Director of Compliance and its outside counsel. Harbor subsequently filed a motion for return of property as provided for in Federal Rule of Criminal Procedure 41(g). The District Court ultimately granted a government motion to dismiss that proceeding, finding that a “filter team” and screening process were adequate to protect Harbor’s privileged information.