The Fourth Circuit joined the fast-growing club of federal courts objecting to federal prosecutors and agents reliance on so-called “filter-team” procedures to review documents seized from a law firm that may contain privileged attorney-client and work product information.  The Court’s decision is here.

Over the last twenty years, federal prosecutors and agents have relied on filter team procedures to review documents and other materials that implicate potential privilege issues.  In the Michael Cohen case, federal prosecutors and agents were ultimately ordered to submit such materials to a federal magistrate for review rather than have a filter team consisting of prosecutors and agents review the materials for privilege issues.

In this case, which was ruled on last year, federal prosecutors were investigating a lawyer who worked at a law firm (“Lawyer A”) who was representing a client-lawyer (“Client A”), both of whom were suspected to be involved in drug trafficking by assisting drug dealers to launder money and obstruct federal investigations.  Federal prosecutors secured a search warrant for the Law Firm’s offices which authorized seizure of documents and materials relating to the suspect lawyers (“Lawyer A and Client A”).  The search warrant application included a proposed protocol for review of privileged materials by a separate filter team consisting of federal prosecutors agents and staff that had no connection with the investigation of Lawyer A and Client A.  The magistrate judge approved the search warrant and the filter team proposal.

When the federal agents executed the search warrant, they seized all of Law Firm’s documents and materials, over the objections of law firm partners present on the scene.  As recounted in the Court’s decision, only 52 items seized of millions of documents included Lawyer A’s name as a recipient or sender, or included Lawyer A’s name in the body of the document.  Moreover, the Law Firm had several ongoing representations under which clients were being investigated by federal prosecutors from the sale US Attorney’s Office for the District of Maryland.  Federal agents seized all the materials and declined to conduct a real-time search on Law Firm premises.  Federal prosecutors asked the Law Firm for a list of its clients and the Law Firm refused to produce such a list.

The Law Firm challenged the search warrant seizure and requested a preliminary injunction against the filter team’s review of the seized materials.  The magistrate judge denied the Law Firm’s challenge and the Fourth Circuit reviewed the matter and stayed the filter team’s search.  Further, the Fourth Circuit ordered the prosecutors to turn over all the seized materials to a magistrate judge for an independent review of the seized materials for privileged information.

The Fourth Circuit reversed the lower court’s decision.  The Court ruled that the filter team’s role inappropriately assigned judicial functions to the executive branch, was approved in ex parte proceedings prior to the search and seizure, and violated basic principles to protect the attorney-client privilege.

In reversing the district court decision, and in weighing the extent of irreparable harm, the Fourth Circuit Court ruled that the lower court ignored the fact that less than one percent of the seized emails were from Client A, to Client A, or mentioned Client A, and that many seized emails contained attorney-client communications and work product materials relating to other Law Firm clients.  Some of these communications, the Court noted, were from or about clients who were being investigated, or are being prosecuted by federal prosecutors.

The Court also explained that the Filter Team’s review of the materials seized from the Law Firm was injurious to the Firm and its clients, and more importantly, was irreparable.

Further, the Court ruled that the resolution of attorney-privilege and work product claims has to be resolved by the judiciary and cannot be delegated to the executive branch, in this case the Filter Team, especially when the executive branch is an interested party in the dispute.

The Court’s decision underscores the need for magistrate judges to conduct the review of attorney-client privilege and work product claims, as in the Michael Cohen case.