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On August 29, 2020, the sign can be seen at the headquarters of the U.S. Department of Justice in Washington, DC, United States. REUTERS/Andrew Kelly

(Reuters)-The U.S. Court of Appeals for the 11th Circuit refused this week to restrict the U.S. Department of Justice from using "filter teams" to screen privileged materials seized from criminal investigation targets.

In its first public decision on the government’s handling of privileged documents and e-mails obtained in raids on corporate offices, the 11th Circuit Court ruled in the United States v. Korf that the goal of the Justice Department’s money laundering investigation is unlikely to be successful to indicate that the filtering team itself It violated the objective of the 6th Amendment to obtain the right of a lawyer.

"Our control in this area is not even over," the court said in the opinions of judges Beverly Martin, Robin Rosenbaum and Robert Luck.

This is a setback for corporate criminal targets, who have recently won several victories in protests against the deployment of filtering teams by the Ministry of Justice. As you know, when the government executes a search warrant and confiscates documents and electronic communications from criminal investigation targets, the filtering team (also known as the taint team) comes into play. To ensure that prosecutors involved in potential cases do not see privileged materials, the Department of Justice has convened a different, isolated team to screen seized documents and e-mails.

As the 11th Circuit pointed out in its Korf ruling on Monday, at least eight Federal Circuit courts support the Department of Justice's use of tainted teams, either explicitly supporting the filtering team screening, or implying refusal to criticize the agreement.

However, in 2019, the 4th Circuit Court stated in its In re: Search Warrant issued on June 13 that the Department of Justice used a filter panel to review materials seized from a Baltimore law firm and “improperly assigned judicial functions to the executive branch. ". In July, I introduced you to a Fifth Circuit ruling that severely criticized the Department of Justice for failing to respect the privileges of the target, even though the DOJ used a stain panel to review seized materials. (However, the Fifth Circuit soon ruled that the filtering team inevitably violated the rights of the target.)

In the Korf case, the federal prosecutor in Cleveland obtained a search warrant last year to obtain evidence of fraud and money laundering from the Miami office of a corporate family. For simplicity, I will call it Optima. (According to documents from the 11th Circuit Court, the government is investigating allegations that some entities of Optima were suspected of embezzling more than US$100 million from a Ukrainian bank and subsequently laundering money through the purchase of real estate in the United States.

The initial search agreement acknowledged that certain evidence may be protected by privileges, so—at least according to the briefing by the U.S. Department of Justice in the 11th Circuit—investigators “carefully segregated potentially privileged material”. Optima's internal legal counsel was present during the search, and according to the government, he told the agents which offices contained protected documents. The Ministry of Justice stated that it obtained only three boxes of materials from the internal lawyer's office, including less than 8,000 pages of the 125,000 seized materials.

Optima lawyers from Black, Srebnick, Kornspan, and Stumpf began to intervene in the search warrant process, arguing that their client’s privilege issue is particularly serious because the Optima entity has already defended a civil lawsuit against a Ukrainian bank in the Delaware Chancery Court and is facing civil forfeiture in Florida State action. They told the U.S. District Judge in Miami, John Campbell, that if prosecutors see privileged material in these cases, they will have a road map to defend Optima in potential criminal cases.

The magistrate agreed to add an initial filtering protocol to protect Optima's privileges. The revised agreement allows the company to conduct an initial permission review and then provide permission logs to the filtering team. The filtering team must be composed of prosecutors outside of the Cleveland U.S. Attorney's Office, which may challenge the company's claims of privilege. But the revised agreement prohibits the filtering team from delivering any files that are alleged to have privileges to investigating prosecutors unless the company agrees to release them or the court denies the company's privilege designation.

Despite this, Optima's lawyers still appealed the two companies' motion to completely ban the use of government filtering teams. "Federal prosecutors should never...review documents whose owners have designated lawyer-client or work product privileges," these companies told the 11th Circuit Court, citing six cases of leaks of confidential information from the filtering team Case. "The inherent risks of the basic principles of our judicial system are too great," the briefing said-especially because it can be easily avoided by appointing a special director or appointing a magistrate to conduct a privilege review.

The government countered that trial and appeal courts across the country allowed the Justice Department to use filtering teams to screen for privileged materials. The Department of Justice argued in its summary that even the 2019 Fourth Circuit's decision to challenge the agreement did not prohibit the filtering team under all circumstances. In addition, the government briefing stated that the case of the Fourth Circuit involved a raid on a law firm, which involved thousands of privileged communications with clients unrelated to the target of the search.

The 11th Circuit agreed that the facts in the 4th Circuit are distinguishable. But more broadly, the appellate court stated that no court found that the filtering team was completely disallowed. It also stated that to the extent that the agreement was criticized by other courts, the magistrate’s order in this case resolved every trap. The appeals court stated: “It is impossible to provide privileged documents to the investigation team by mistake.”

I'm sure this is not the last time a criminal target has invoked the 6th Amendment to protest DOJ's use of the filtering team. But at least in the 11th tour, this seems to be a dead end.

I emailed Black Srebnick's Optima attorney Howard Srebnick, but received no response. The Department of Justice also did not respond to my inquiry about the 11th Circuit Court ruling.

The views expressed here are those of the author. Based on the principle of trust, Reuters News is committed to integrity, independence and unbiasedness.

The Fifth Circuit emphasized the privileges of corporate defendants raided by the Department of Justice

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The views expressed are those of the author. They do not reflect the views of Reuters News. According to the principle of trust, Reuters is committed to integrity, independence and unbiasedness.

Since 2011, Alison Frankel has been a Reuters columnist covering high-stakes business litigation. She graduated from Dartmouth University and worked as a reporter in New York, covering the legal profession and law for more than 30 years. Before joining Reuters, she was a writer and editor of The American Lawyer. Frankel is the author of "The Double Eagle: The Epic of the World's Most Valuable Coins".

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