The search of former President Donald Trump’s residence has generated extensive commentary about the Department of Justice’s criminal investigation and the legal challenge that Trump’s lawyers brought regarding that search. Trump’s lawyers successfully obtained the appointment of a special master to review potentially privileged materials seized by the government. This means that a neutral third-party, and not the government, will now determine what materials the government can use in its investigation. Although the Eleventh Circuit recently granted a partial stay of the district court’s order, the decision addressed the special master’s review of classified documents the government seized, and not privileged materials such as attorney-client communications. Regardless of the ultimate resolution of those issues, the fact remains that the appointment of the special master reflects a shift in how courts are beginning to consider the government’s review of privileged materials.

The long-standing practice employed by the government when it seizes potentially privileged materials has been to employ an internal filter team comprised of investigators at the Department of Justice who are not working on that criminal investigation. While practices vary, the filter team will review the potentially privileged material and disclose only those non-privileged materials to the investigative team. Over the years, nearly every federal circuit has approved of, or at least refused to criticize, the government’s use of filter teams. But courts are now reconsidering the deployment of internal filter teams and questioning the processes set up by filter teams.

The Fox Guarding the Henhouse

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