When the government seizes electronically stored documents by means of a search warrant, it will often seek to set up an internal “taint” team to try to segregate out materials protected by the attorney-client privilege to avoid later claims that it improperly accessed such documents. A typical taint team is made up of colleagues of the government trial team—federal agents and prosecutors—who are not members of the trial team. Over the years, a number of courts and practitioners have criticized this “fox guarding the chicken coop” procedure as inherently ill designed to protect the privilege.
A recent case from the U.S. Court of Appeals for the Eleventh Circuit, U.S. v. DeLuca, illustrates just what these skeptical courts and counsel have been concerned about. In that case, privileged information was provided to the trial team without notice to the defendant in violation of the terms of a stipulation providing for a taint team. Despite the unjustified invasion of the defendant’s attorney-client privilege, the court affirmed Stephen DeLuca’s conviction because it found no prejudice resulted from the violation.
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