Keeping the Fox Out of the Henhouse: How Recent Court Decisions and a Mid-Trial Debacle Can Help Shield Privileged Material From the Government
This article draws on recent developments to offer companies (and individuals) concrete steps they can take to protect privileged communications. It also outlines arguments they can make in persuading judges to reject the use of filter teams altogether or, failing that, what relief they can obtain to limit potential harm to their businesses.
September 08, 2021 at 11:00 AM
20 minute read
Businesses that have been forced to sit back as the government makes unreviewable determinations about which of their sensitive documents are privileged can finally start fighting back. Recent U.S. Court of Appeals decisions and a highly publicized mid-trial debacle involving a government "filter team" (or "taint team") have given privilege holders much needed ammunition to tell courts why they should stop rubber-stamping prosecutors' requests to make determinations about a company's assertion of privilege.
In Harbor Healthcare System LP v. United States of America, 5 F.4th 593 (5th Cir. 2021), a Fifth Circuit panel found that the prosecutors displayed a "callous disregard" of the rights of the targeted company in the way the government's filter team conducted itself. The Fifth Circuit is not alone. The most fervent critic to date, the Fourth Circuit, had previously borrowed the Sixth Circuit's metaphor of likening prosecutor-run filter teams to leaving the "government's fox in charge of guarding the … henhouse." [1] Perhaps sensing the tide turning, the government has, in a recent high-profile matter, asked for the appointment of an independent special master to review certain potentially privileged material. It was too late, however, for a Los Angeles prosecution team that, in late August 2021, watched a federal judge declare a mistrial in another prominent case—this one against Michael Avenatti—over a mistake apparently made by the filter team.
This article draws on these recent developments to offer companies (and individuals) concrete steps they can take to protect privileged communications. It also outlines arguments they can make in persuading judges to reject the use of filter teams altogether or, failing that, what relief they can obtain to limit potential harm to their businesses.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllGovernment Attorneys Are Flooding the Job Market, But Is There Room in Big Law?
4 minute readTrump, ABC News Settlement in Defamation Lawsuit Includes $1M in Attorney Fees For President-Elect
Can Law Firms Avoid Landing on 'Enemy' List During the Trump Administration?
5 minute readLaw Firms Mentioned
Trending Stories
- 1Ben Brafman Defending Celebrity Rabbi in Lawsuit by Miami Hotel
- 2People in the News—Dec. 23, 2024—Barley Snyder, Marshall Dennehey
- 3How I Made Office Managing Partner: 'Be a Lawyer First, Foremost and Always,' Says Matthew McLaughlin of Venable
- 4Bar Report - Dec. 23
- 5Recent Decisions Regarding the Telephone Consumer Protection Act
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250