District Judge Timothy Batten, U.S. District Court for the Northern District of Georgia, Atlanta. (Photo: John Disney/ALM)

A federal judge said he will not disqualify U.S. Attorney Byung J. "BJay" Pak or his office from handling an ongoing investigation of a former city of Atlanta chief financial officer. 

District Judge Timothy Batten of the U.S. District Court for the Northern District of Georgia also affirmed as constitutional Pak's use of an in-house filter or taint team, which has already reviewed thousands of former city CFO Jim Beard's personal emails that federal investigators seized with a search warrant from Beard's AOL account earlier this year.

Pak's spokesman declined to comment.

Beard's counsel, Scott Grubman of Atlanta's Chilivis, Grubman, Dalbey & Warner, said he intends to appeal the ruling.

In denying Beard a temporary restraining order to stop Pak from continuing a review of the former city official's emails, Batten held that an intrusion on attorney-client privilege "is not automatically a constitutional violation." Batten signed the order on Tuesday. 

According to the judge, a defendant's rights are violated only if the privileged communications are "intentionally obtained and used to a defendant's detriment at trial."

Batten also held that Beard "is unlikely to succeed" in demonstrating that his constitutional rights were violated by Pak's taint team, and that he remained "confident that the procedures are intended to and will protect Beard's constitutional rights."

Filter or taint teams are appointed to review documents seized from defendants and filter out privileged communications before turning the seized or subpoenaed materials over to trial prosecutors.

Grubman's TRO request challenged the use of Pak's in-house taint team—composed of one of his prosecutors and two local FBI agents—citing rulings from multiple federal circuits troubled by the practice as a threat to defendants' constitutional rights. 

But Batten sided with prosecutors in finding Grubman failed to identify any specific emails reviewed by the government that should have been exempt from trial prosecutors' scrutiny because of attorney-client or spousal privilege. Batten said that even though prosecutors refused to let Grubman review what they had, he was "not convinced" Grubman should be excused from offering evidence that there were privileged communications among Beard's emails that they secured from AOL.

"The emails belong to Beard in the first place, and he has not argued or demonstrated that the emails are no longer in his account," Batten said.

Batten also said he was "not persuaded by Beard's argument that he will suffer irreparable harm from the stigma of a criminal indictment."

"Beard would have the future ability to seek disqualification or dismissal of an indictment if one does exist," the judge concluded.

Grubman sought the restraining order last week after prosecutors notified him investigators had obtained and had reviewed three years of personal emails and intended to turn them over to trial prosecutors involved in an ongoing corruption investigation of former Atlanta Mayor Kasim Reed's administration. Neither Beard nor Reed have been indicted or charged with a crime.

Grubman said that, in targeting Beard, the government has expanded its inquiry to include his children, friends, former colleagues and acquaintances whom they have plied with questions he said are irrelevant to Beard's City Hall tenure.