Amicus Curiae Brief — Mordechai Korf, et al., Petitioners v. United States

No. 21-1364

In the

Supreme Court of the United States

MORDECHAI KORF ET AL.,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

Brief of Amici Curiae Professors of Criminal

Law and Legal Ethics in Support of Petitioners

JONATHAN I. KRAVIS

Counsel of Record

BRENDAN B. GANTS

MUNGER, TOLLES & OLSON LLP

601 Massachusetts Ave. NW

Suite 500E

Washington, D.C. 20001

(202) 220-1100

Jonathan.Kravis@mto.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 4

I.

The Use of Government “Filter Teams”

Imperils Client Confidences and

Weakens the Actual and Perceived

Fairness of Judicial Proceedings. ..................... 4

II.

Filter Teams in Numerous Cases Have

Failed to Protect Defendants’ Rights in

Privileged Material. ........................................ 10

III.

Alternative Approaches That Would

Avoid These Problems are Available and

Should Be Adopted. ......................................... 21

CONCLUSION .......................................................... 24

ii

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Brady v. Maryland,

373 U.S. 83 (1963) .......................................... 10, 13

In re Grand Jury Proc.,

220 F.3d 568 (7th Cir. 2000) .................................. 7

In re Grand Jury Subpoenas,

454 F.3d 511 (6th Cir. 2006) .................... 6, 7, 8, 23

Harbor Healthcare Sys., L.P. v. United

States,

5 F.4th 593 (5th Cir. 2021) ......................... 5, 11, 12

Hickman v. Taylor,

329 U.S. 495 (1947) ................................................ 5

In re Kellogg Brown & Root, Inc.,

756 F.3d 754 (D.C. Cir. 2014) ................................ 8

Klitzman, Klitzman & Gallagher v.

Krut,

744 F.2d 955 (3d Cir. 1984) .................................. 22

In re Search Warrant for Law Offices

Executed on March 19, 1992,

153 F.R.D. 55 (S.D.N.Y. 1994) ........................... 8, 9

In re Search Warrant Issued June 13,

2019,

942 F.3d 159 (4th Cir. 2019) ........................ 5, 7, 22

iii

TABLE OF AUTHORITIES

Page

In re Search Warrants Executed on April

9, 2018,

No. 18-MJ-3161 (S.D.N.Y.)................................... 22

SEC v. Lek Securities Corp.,

No. 17-cv-1789, 2018 WL 417596

(S.D.N.Y. Jan. 16, 2018) ................................. 16, 17

Swidler & Berlin v. United States,

524 U.S. 399 (1998) .............................................. 23

United States v. Avenatti,

No. 8:19-cr-061 (C.D. Cal. Aug. 28,

2021)...................................................................... 13

United States v. Black,

No. 16-cr-20032, 2017 WL 2151861

(D. Kan. May 17, 2017) ........................................ 17

United States v. Carter,

429 F. Supp. 3d 788 (D. Kan. 2019),

order vacated in part on other

grounds, No. 16-cr-20032-02, 2020

WL 430739 (D. Kan. Jan. 28, 2020) ............... 17, 18

United States v. DeLuca,

663 F. App’x 875 (11th Cir. 2016) ........................ 18

United States v. Elbaz,

396 F. Supp. 3d 583 (D. Md. 2019) ................ 13, 14

United States v. Esformes,

No. 16-cr-20549, 2018 WL 5919517

(S.D. Fla. Nov. 13, 2018) .......................... 14, 15, 16

iv

TABLE OF AUTHORITIES

Page

United States v. Gallego,

No. 4:18-cr-1537, 2018 WL 4257967

(D. Ariz. Sept. 6, 2018) ..................................... 9, 22

United States v. Kaplan,

No. 02-cr-883, 2003 WL 22880914

(S.D.N.Y. Dec. 5, 2003) ......................................... 20

United States v. Nobles,

422 U.S. 225 (1975) ................................................ 5

United States v. Noriega,

764 F. Supp. 1480 (S.D. Fla. 1991) ................ 20, 21

United States v. Pedersen,

No. 12-cr-431, 2014 WL 3871197 (D.

Or. Aug. 6, 2014)............................................. 19, 20

United States v. Rayburn House Office

Building, Room 2113,

497 F.3d 654 (D.C. Cir. 2007) ................................ 6

United States v. SDI Future Health, Inc.,

464 F. Supp. 2d 1027 (D. Nev. 2006) ..................... 7

United States v. Stewart,

No. 02-cr-3, 2002 WL 1300059

(S.D.N.Y. June 11, 2002) ...................................... 22

United States v. Sullivan,

No. 17-cr-104, 2020 WL 1815220 (D.

Haw. Apr. 9, 2020) .......................................... 12, 13

v

TABLE OF AUTHORITIES

Page

United States v. Taylor,

764 F. Supp. 2d 230 (D. Me. 2011) ......................... 7

United States v. Zolin,

491 U.S. 554 (1989) ........................................ 22, 23

Upjohn Co. v. United States,

449 U.S. 383 (1981) ...................................... 5, 6, 23

STATE CASES

O’Connor v. Johnson,

287 N.W.2d 400 (Minn. 1979) ................................ 9

Preventive Med. Assocs., Inc. v.

Massachusetts,

992 N.E.2d 257 (Mass. 2013) ................................. 9

FEDERAL STATUTES

42 U.S.C. § 2000aa-11(a) ............................................. 6

OTHER AUTHORITIES

Roland Behm et. al., “Trust Us:” Taint

Teams and the Government’s Peek at

Your Company’s Privileged

Documents, ACC Docket, June 2010 ................... 10

vi

TABLE OF AUTHORITIES

Page

Ellen S. Podgor & Wilma F. Metcalf, The

Fox Guarding the Henhouse:

Government Review of AttorneyClient Privileged Material in White

Collar Cases, 103 B.U. L. Rev.

(forthcoming 2023), available at

https://papers.ssrn.com/sol3/

papers.cfm?abstract_id=4087032 .......................... 1

Paul R. Rice, Attorney-Client Privilege in

the U.S. § 11:19 (2d ed. 2021) ................................ 8

U.S. Dep’t of Just., Just. Manual § 913.420 (2021), available at

https://www.justice.gov/jm/jm-913000-obtaining-evidence#9-13.420 ...................... 6

1

INTEREST OF AMICI CURIAE 1

Ellen S. Podgor is the Gary R. Trombley Family

White-Collar Crime Research Professor of Law at

Stetson University College of Law. A former deputy

prosecutor and former criminal defense attorney, Professor Podgor teaches and writes in the areas of

white-collar crime, criminal law, and criminal procedure. She has authored or co-authored numerous

books and more than 70 law review articles and essays, including a forthcoming article about filter

teams and alternative approaches to reviewing attorney-client privileged material. 2

Gregory M. Gilchrist is Professor of Law at the

University of Toledo, where he teaches and writes in

the areas of criminal law, criminal procedure, and

white-collar crime. Professor Gilchrist has been a

criminal defense lawyer in private practice and in the

Office of the Federal Public Defender, and continues

to represent individuals in federal criminal cases today.

David Kwok is George A. Butler Research Professor and Associate Professor at the University of Houston Law Center, where he is also co-director of the

Pursuant to Supreme Court Rule 37.6, counsel for amici certify

that no counsel for any party authored this brief in whole or in

part, and no party or counsel for a party, or any other person

other than amici or their counsel, made a monetary contribution

intended to fund the preparation or submission of this brief.

Counsel for all parties received timely notice of amici’s intent to

file this brief, and consented in writing to its filing.

1

See Ellen S. Podgor & Wilma F. Metcalf, The Fox Guarding the

Henhouse: Government Review of Attorney-Client Privileged Material in White Collar Cases, 103 B.U. L. Rev. (forthcoming

2023), available at https://papers.ssrn.com/sol3/papers.cfm?abs

tract_id=4087032.

2

2

Criminal Justice Institute. Professor Kwok’s teaching and scholarship is focused on criminal law, criminal procedure, and white-collar crime.

Cliff Sloan is Distinguished Visitor from Practice

at Georgetown University Law Center, where he

teaches classes in criminal justice and constitutional

law. He has represented both the government and

defendants in criminal cases.

Ellen Yaroshefsky is the Howard Lichtenstein

Distinguished Professor in Legal Ethics and Professor of Law at the Maurice A. Deane School of Law at

Hofstra University. Professor Yaroshefsky teaches

and writes about legal ethics issues, including in particular those that arise in the context of criminal law.

She also counsels lawyers, law firms, and bar associations regarding legal ethics issues.

3

SUMMARY OF ARGUMENT

The use of government “filter teams” to review

assertedly privileged material seized by the

government raises grave concerns about the

protection of client confidences. As numerous courts

have recognized, any such process fundamentally

undermines the attorney-client privilege and the

work product doctrine.

Moreover, the practical

reality is that government filter teams are inclined to

take a relatively narrow view of privilege, suffer from

a lack of information needed to reliably assess

privilege, and are prone to errors—which, when they

happen, can be difficult or impossible for anyone

outside the government to detect. Such processes do

not adequately protect the attorney-client privilege,

and they undermine public confidence in the

fundamental fairness of the judicial process. These

concerns are particularly acute where, as here, the

search includes the files and electronic devices of

attorneys

representing

the

subject

of

the

investigation.

These serious problems are not merely theoretical,

as numerous examples of filter-team failures show.

In cases across the nation, government filter teams

have failed to screen documents for privilege or failed

to identify privileged material they did screen, with

the result that prosecution teams have received,

reviewed, and in some cases used privileged material

in their investigations. Even worse, in many of these

cases the government failed to recognize the problem

or failed to report it to the court or to defense

counsel—which raises the realistic prospect that the

failures of which the public is aware may be merely

the tip of the iceberg.

4

Recognizing these inherent flaws in filter teams,

courts increasingly have adopted alternative

approaches that better protect client confidences.

The Eleventh Circuit’s decision in this case

erroneously rejected those approaches and failed to

recognize the serious problems with filter teams.

This Court should grant certiorari to provide crucial

guidance to courts nationwide on this important

issue.

ARGUMENT

I.

The Use of Government “Filter Teams”

Imperils Client Confidences and Weakens

the Actual and Perceived Fairness of

Judicial Proceedings.

As the Petition explains, the Courts of Appeals are

divided over how to implement this Court’s existing

precedent regarding the attorney-client privilege and

work product doctrine in the context of searches and

seizures, and this Court’s review is needed to resolve

that disagreement. Numerous courts have recognized, correctly, that permitting government filter

teams to review assertedly confidential attorneyclient material undermines those essential protections, creates a significant risk that privileged documents will be disclosed to the investigation team, and

jeopardizes public confidence in the fairness of judicial proceedings.

1. Any review of a criminal defendant’s privileged

material by government agents as part of a filter

team undermines the fundamental purpose of the attorney-client privilege—“to encourage full and frank

communication between attorneys and their clients

and thereby promote broader public interests in the

observance of law and administration of justice.”

5

Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

“The whole point of privilege is privacy.” Harbor

Healthcare Sys., L.P. v. United States, 5 F.4th 593,

599 (5th Cir. 2021).

The same is true of the work product doctrine,

which “most frequently is asserted as a bar to discovery in civil litigation,” but which plays an “even more

vital” role “in assuring the proper functioning of the

criminal justice system.” United States v. Nobles, 422

U.S. 225, 237-38 (1975). As this Court has long emphasized, if attorney work product were discoverable

by the client’s adversary, “much of what is now put

down in writing would remain unwritten,” and “the

interests of the clients and the cause of justice would

be poorly served.” Hickman v. Taylor, 329 U.S. 495,

511 (1947).

Together, these principles cordon off a “privileged

area” in which lawyer and client may plan and present a defense. In re Search Warrant Issued June 13,

2019, 942 F.3d 159, 174 (4th Cir. 2019) (citation omitted). As courts have increasingly come to recognize,

the effect of using a government filter team is to invade that privileged area. See, e.g., id. at 174-75.

Clients will be less likely to share confidences with

their attorneys, and attorneys will be less likely to

create work product, if they know that government

agents may review their materials. That the government agents reviewing privileged communications

may be segregated from one particular investigation

is cold comfort—especially because the government

reserves the right, consistent with the plain-view doctrine, to use in other criminal inquiries any information that its agents learn as part of a filter team.

See id. at 183 & n.21.

Filter-team processes therefore are likely to have a

chilling effect on attorney-client communications and

6

on attorney-led factual investigations, including internal investigations into alleged corporate wrongdoing. Such investigations generate privileged materials that would be especially useful to government investigators, if they were allowed access to them. See

Upjohn, 449 U.S. at 396. Notably, in one criminal

case that involved a raid on the defendant’s congressional office, the D.C. Circuit Court of Appeals rejected use of a filter team to review documents potentially protected by the Speech or Debate Clause out of

concern that the process could “chill the exchange of

views with respect to legislative activity.” United

States v. Rayburn House Office Building, Room 2113,

497 F.3d 654, 661 (D.C. Cir. 2007). So too, the use of

filter teams to review potentially privileged documents threatens to chill the exchange of information

and views between attorney and client.

The availability of filter-team processes only in the

context of a search and seizure may also provide a

perverse incentive to proceed in that manner. Respect for the principles underlying the attorney-client

privilege dictates that, where prosecutors must obtain evidence from lawyers or represented parties,

they should use the least intrusive practicable

means—a proposition that in some instances is codified by statute and in the Department of Justice

Manual. See 42 U.S.C. § 2000aa-11(a); U.S. Dep’t of

Just., Just. Manual § 9-13.420 (2021), available at

https://www.justice.gov/jm/jm-9-13000-obtainingevidence#9-13.420. But when the government does

proceed under a means less intrusive than search and

seizure, such as by subpoena, courts have been unwilling to approve filter-team processes. See In re

Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir.

2006) (rejecting such a process because “the government does not actually possess the potentially-

7

privileged materials here, so the exigency typically

underlying the use of taint teams is not present”);

United States v. Taylor, 764 F. Supp. 2d 230, 234 (D.

Me. 2011) (noting that courts have generally required

preliminary review by defense counsel “where the

government has not yet obtained the records”); United States v. SDI Future Health, Inc., 464 F. Supp. 2d

1027, 1037 (D. Nev. 2006) (similar). Insofar as the

government views filter-team procedures as advantageous—which it evidently does in many cases—this

incentive structure is troubling.

2. In addition, the use of government filter-team

agents to screen potentially privileged material is beset with numerous practical problems.

For one thing, “[i]t is reasonable to presume that

the government’s taint team might have a more restrictive view of privilege than [the defendant’s] attorneys. In re Grand Jury Subpoenas, 454 F.3d at

523. That more restrictive view, understandable

“given their prosecutorial interests in pursuing the

underlying investigations,” may “cause privileged

documents to be misclassified and erroneously provided to an investigation or prosecution team.” In re

Search Warrant Issued June 13, 2019, 942 F.3d at

177.

This problem is exacerbated by the fact that the filter team frequently lacks information necessary to

assess privilege. “The inquiry into whether documents are subject to a privilege is a highly factspecific one” that requires taking context into account. In re Grand Jury Proc., 220 F.3d 568, 571 (7th

Cir. 2000). For example, a document not sent to or

from a lawyer could be privileged, depending on the

nature of the document, the purpose(s) for which it

was created, and other factual circumstances, information that a filter team is unlikely to possess. See,

8

e.g., In re Kellogg Brown & Root, Inc., 756 F.3d 754,

760 (D.C. Cir. 2014). As one treatise explains:

The privileged status of many communications is not apparent on their face.

This, of course, is why privilege proponents generally have to supply supporting materials to opposing parties and

the reviewing judicial officers when their

claims are made. None of this often essential information can even be made

available to the members of the taint

team because they cannot reveal the

contents of any of the seized communications to those who could supply it. As a

consequence, this taint team process will

necessarily result in a large number of

false negatives—privileged documents

that are not recognized as such.

Paul R. Rice, Attorney-Client Privilege in the U.S.

§ 11:19 (2d ed. 2021). A related problem, which occurred in one case discussed below, arises when filterteam members also make determinations about

which documents are relevant or exculpatory.

For these and other reasons, when government filter teams review assertedly privileged material, mistakes—and sometimes misconduct—are too often the

result. Filter teams in numerous cases “have been

implicated in the past in leaks of confidential information to prosecutors. . . . [H]uman nature being

what it is, occasionally some taint-team attorneys

will make mistakes or violate their ethical obligations.” In re Grand Jury Subpoenas, 454 F.3d at 523;

see infra Part II. Reliance on such procedures, “especially in the context of a criminal prosecution, is highly questionable, and should be discouraged,” as leaks

may indeed be “inevitable.” In re Search Warrant for

9

Law Offices Executed on March 19, 1992, 153 F.R.D.

55, 59 (S.D.N.Y. 1994).

The practical problems with filter teams are not

limited to the investigation at issue. Members of the

filter team may become involved in another investigation or prosecution in which information they

learned on the filter team becomes relevant, whether

or not they realize it. In light of its fact-specific nature, this issue cannot be addressed through government screening procedures, and the defendant may

never learn sufficient information about the two investigations to detect or raise the issue. Even the

former filter-team member might not recall when or

how she learned the information. But once information protected by the attorney-client privilege or

work product doctrine “is revealed to the police, the

privileges are lost, and the information cannot be

erased from the minds of the police.” O’Connor v.

Johnson, 287 N.W.2d 400, 405 (Minn. 1979).

3. Finally, as courts have noted repeatedly, the

use of filter teams undermines public confidence in

the fundamental fairness of judicial proceedings. As

one court observed, “The appearance of Justice must

be served, as well as the interests of Justice. It is a

great leap of faith to expect that members of the general public would believe any such [ethical] wall

would be impenetrable; this notwithstanding our own

trust in the honor of an AUSA.” In re Search Warrant for Law Offices Executed on March 19, 1992, 153

F.R.D. at 59; see also United States v. Gallego, No.

4:18-cr-1537, 2018 WL 4257967, at *2 (D. Ariz. Sept.

6, 2018) ([E]ven if no leaks occur, the use of walled-off

taint teams undermines the appearance of fairness

and justice.”); Preventive Med. Assocs., Inc. v. Massachusetts, 992 N.E.2d 257, 272 (Mass. 2013) (“[U]se of

an independent special master offers a far greater

10

appearance of impartiality and protection against

unwarranted disclosure and use of an indicted defendant’s privileged communications.”).

This problem is significantly compounded by the

fact that the filter-team process is conducted behind

closed doors under the government’s own supervision,

making it difficult if not impossible for anyone outside the government to know whether an unauthorized disclosure of privileged information has occurred.

“[T]he secretive nature of cases in which taint teams

are often employed leave many accounts of botched

procedures that result in privilege leaks relegated to

rumor or sealed judicial memoranda.” Roland Behm

et. al., “Trust Us:” Taint Teams and the Government’s

Peek at Your Company’s Privileged Documents, ACC

Docket, June 2010, at 74, 82-83. In short, the use of

filter teams calls into question the fairness of judicial

proceedings where privilege is at issue.

II.

Filter Teams in Numerous Cases Have

Failed to Protect Defendants’ Rights in

Privileged Material.

Despite the lack of transparency that makes filterteam failures so difficult to identify, some severe failures to protect defendants’ privileged material have

come to light over the years, along with at least one

recent case in which a filter team failed to protect the

defendant’s rights under Brady v. Maryland, 373 U.S.

83 (1963). Disturbingly, these failures typically were

revealed by accident rather than through any forthright admission by the government—and in some

cases, the government refused to acknowledge any

error even as it faced sanctions for misconduct.

Examples of the failures of filter teams include:

11

1.

Harbor Healthcare System v. United States:

After Harbor Healthcare System (“Harbor”) became

the subject of two qui tam lawsuits alleging False

Claims Act violations, the company received investigative demands from the U.S. Department of Health

and Human Services and the Department of Justice

(“DOJ”) Civil Division. The company responded to

the demands, led by its compliance director and outside counsel. See Harbor Healthcare Sys., L.P. v.

United States, 5 F.4th 593, 595 (5th Cir. 2021). The

local U.S. Attorney’s Office (“USAO”) subsequently

executed a search warrant on Harbor offices, seizing

huge swaths of data, including recent privileged

communications with outside counsel regarding the

investigative demands. See id. at 596.

As in the case now before this Court, in Harbor the

government assembled a filter team from a different

division of the USAO handling the investigation, received from the company a list of lawyers and law

firms, and set up a process by which the company

should be able to challenge the filter team’s privilege

determinations. Yet when the company did so, the

government refused to respond, and failed to return

or delete privileged material. Eventually, Harbor received a list of documents the government had already transferred to civil and criminal investigators,

which included “a significant number of privileged

documents.” Id. at 597.

The Fifth Circuit found that the government

“show[ed] a ‘callous disregard’ for Harbor’s rights”

and “made no attempt to respect Harbor’s right to attorney-client privilege in the initial search.” Id. at

599. Moreover, “by its treatment of Harbor’s privileged materials after the search,” the government

“further disregarded Harbor’s rights” when it refused

12

to destroy or return copies of documents that it

agreed were privileged. Id.

2.

United States v. Sullivan:

Because defendant Leihinahina Sullivan was represented by counsel when the government executed a

search warrant at her residence, the government established a filter team to review all seized materials.

That team failed to identify as privileged, and therefore sent to the prosecution team, four photographs of

defense “strategy boards” related to the pending case.

United States v. Sullivan, No. 17-cr-104, 2020 WL

1815220, at *6 (D. Haw. Apr. 9, 2020). The court

found that a filter-team agent was unable to open the

relevant computer files and so, rather than taking

even “minimal” extra steps to protect the defendant’s

rights, simply “presumed the documents were not

privileged and thus provided them to the prosecution

team.” Id. at *8-9. The defendant, who represented

herself pro se, identified the privileged documents

while reviewing discovery in pretrial detention and

brought them to the court’s attention. Id. at *4 &

n.11.

The court observed that the filter-team agent

“demonstrat[ed] a total disinterest in both the rights

of Defendant and the court’s expectation that the

taint team would fulfill its obligation to the court,”

even after learning that he had violated both. Id. at

*8. The government’s filings similarly reflected an

“astonishing” and “disappointing lack of recognition

of this wrongdoing.” Id. at *9. Indeed, the government, while recognizing that the filter team had disclosed privileged documents to the prosecution team,

argued that “there was no improper disclosure” because technically “there was no failure to follow taint

review protocols,” an argument the court rightly

characterized as “shocking.” Id. at *9 & n.20.

13

The court sanctioned the government for the “reckless and grossly negligent conduct” of the filter team

and found that “the United States’ conduct cannot be

described as a mistake or honest disagreement of

opinion; instead, it demonstrated a clear lack of concern for Defendant’s rights and its obligations to this

court.” Id. at *10.

3.

United States v. Avenatti:

Invasion of the attorney-client privilege is not the

only harm that can result from the use of a filter

team, as the recent mistrial in the Avenatti case illustrates.

In declaring a mistrial, the district court found that

the filter team had failed to provide to the prosecution team—and consequently, the government failed

to provide to Avenatti—material the government was

required to disclose under Brady. The court found

that “the government was fully on notice of the significance of” the material, but that through “inadvertence and a failure to appreciate what was there,” it

failed to make the required disclosure, thus depriving

Avenatti of information he could have used in his

opening statement and in cross-examining government witnesses. Trial Transcript at 57, 62-63, United

States v. Avenatti, No. 8:19-cr-061 (C.D. Cal. Aug. 28,

2021), ECF No. 792.

Notably, although in Avenatti the defendant knew

that the relevant documents were missing, in many

cases defendants may be unaware of the existence of

particular Brady material that falls through the

cracks of the government’s faulty filter-team process.

4.

United States v. Elbaz:

In Elbaz, the government, struggling to meet discovery deadlines, took a series of shortcuts that led to

14

privileged material being disclosed by the filter team

to the prosecution team. First, the prosecution team

requested the full original contents of one seized hard

drive before the filter team had completed its review—and then failed to notice the filter team’s

warning that it could contain privileged materials.

See United States v. Elbaz, 396 F. Supp. 3d 583, 58889 (D. Md. 2019). Additionally, the prosecution team

inferred, incorrectly, that the contents of one seized

device would not contain privileged material, and so

did not run it through the filter process. See id. at

589. Upon further review, the government discovered

that the prosecution team also had access to

WhatsApp chats and Hebrew-language documents

that had not been reviewed by the filter team. See id.

at 589-90. Cumulatively, these errors gave the prosecution team access to thousands of potentially privileged documents for approximately five months, more

than 100 of which members of that team viewed or

were presumed to have viewed. See id. at 590.

5.

United States v. Esformes:

This health care fraud case involved a remarkable

variety of filter-team problems, all of which the district court found had occurred despite the government acting in good faith.

First, although the government’s filter-team protocol required it to use “non-case agents” to execute an

office search, the government “relied on several

agents for the search who had participated in other

health care fraud cases that bear some relationship to

the Esformes case or who were later used in the underlying Esformes investigation.” United States v.

Esformes, No. 16-cr-20549, 2018 WL 5919517, at *23

(S.D. Fla. Nov. 13, 2018). The district court noted

that the use of these agents “raises questions about

15

their independence and effectiveness as members of

the filter team.” Id.

The government’s selection of these agents was only

the beginning of its noncompliance with the filterteam protocol, as “agents were either provided inadequate instructions or ignored those instructions”

throughout a search that was “clumsy” and “borderline incompetent.” Id. “Hundreds of documents,

clearly prepared by law firms and/or marked ‘privileged and confidential’ or ‘attorney/client privilege’ or

‘work product privileged’ or ‘legal’ were not segregated and placed in the ‘taint box’ and were, thus, within

the boxes provided to the prosecution team.” Id. at

21. And like the government’s “preparation for and

the methods used during” the search, those it used

“after the search were sloppy and ineffective.” Id. at

23.

Consequently, the prosecution team not only reviewed privileged documents but also used them in a

reverse proffer with one witness and debriefings of

another. See id. The prosecution team continued to

review and use these documents even after being

alerted to the privilege issue by one of the witnesses—and when that team later came across a document that was potentially privileged on its face, it did

not inform the court or the defense. See id. at 24.

These issues came to light only after the defense

reviewed the seized materials, identified privileged

documents, and alerted the government—at which

point the prosecution team represented inaccurately

to defense counsel that the seized materials were “being reviewed by a filter team and not by the prosecution team.” Id.

The district court declined to adopt the magistrate

judge’s finding that the prosecutors acted in bad

16

faith, determining instead that “their execution of

their duties was often sloppy, careless, clumsy, ineffective, and clouded by their stubborn refusal to be

sufficiently sensitive to issues impacting the attorney

client privilege.” Id. at 34. In particular, the prosecution team’s “myopic view of [the defendant’s lawyer] as a criminal and not an attorney skewed their

reaction to, and blurred their ability to see, the potential for privilege.” Id. at 32.

The district court suppressed some evidence but

denied other remedies, finding that the defense failed

to meet its burden to establish prejudice. The court

acknowledged that the government “attempted to use

the information contained in [the defendant’s privileged] documents to gather more information from”

the defendant’s confidant and his assistant, but nevertheless the court was “unconvinced” that the government gained a “real advantage” from their use.

Id. at 31.

6.

SEC v. Lek Securities Corporation:

To support the SEC’s investigation of a securities

company for manipulative trading, the New Jersey

USAO established a filter-team process to cull potentially privileged documents using a defined set of

privilege terms. Yet supposedly “filtered” materials

provided to the SEC repeatedly included documents

that hit on the privilege terms, and an SEC attorney

determined that dozens of those documents were potentially privileged. See SEC v. Lek Securities Corp.,

No.17-cv-1789, 2018 WL 417596, at *1 (S.D.N.Y. Jan.

16, 2018). Moreover, when the SEC asked the USAO

filter team for documents in native format, the filter

team failed to screen the attachments to documents

that hit on privilege terms. See id. at *2. These failures to implement a relatively straightforward filterteam process resulted in the SEC investigative team

17

receiving a 15-page draft timeline of events that the

company’s owner sent to his attorney (which the SEC

acknowledged reviewing), as well as documents prepared by the attorney or his paralegal (which were

clearly identified in a footer as privileged attorney

work product) describing the “key” individuals and

entities in the case. See id. at *3-4.

7.

United States v. Black:

During an investigation into alleged drug smuggling in a federal detention facility, the government

obtained audio recordings of prisoners’ phone calls to

their attorneys. The government created a filter

team to review other materials but did not ask that

team to review the audio recordings. Instead, the

lead prosecuting attorney distributed the recordings

“indiscriminately,” even after learning that investigators had inadvertently listened to the beginning of at

least one attorney-client call. United States v. Black,

No. 16-cr-20032, 2017 WL 2151861, at *7 (D. Kan.

May 17, 2017). The district court determined that

she did so because—despite a contrary opinion from

DOJ’s Professional Responsibility Advisory Office—

the government “unilaterally decided the telephone

calls were not privileged, and did so without notice to

the Court or the parties.” Id. at *8.

Following an investigation by a special master, the

court found that at least two prosecutors “had knowingly and intentionally listened to attorney-client

phone calls in one or more of their cases.” United

States v. Carter, 429 F. Supp. 3d 788, 824 (D. Kan.

2019), order vacated in part on other grounds, No. 16cr-20032-02, 2020 WL 430739 (D. Kan. Jan. 28,

2020). The extent and scope of the government’s intrusion on the privilege remained unclear because the

government defied the court’s orders to preserve and

produce relevant documents and generally refused to

18

cooperate with the investigation. See id. at 866-67.

Ultimately, the court found that the government had

committed “systemic prosecutorial misconduct” and

then “responded by minimizing the seriousness of its

conduct and delayed and obfuscated th[e] investigation” of that conduct. Id. at 903. Litigation over that

misconduct continues today.

8.

United States v. DeLuca:

After the FBI searched the offices of defendant Stephen DeLuca’s company, the parties stipulated to a

process under which a filter team would review

DeLuca’s communications to or from his attorneys

and give DeLuca any documents deemed not privileged so that he could decide whether to challenge

that determination before a magistrate. A member of

the filter team, however, “unilaterally decided that

the stipulation was not in effect” and so gave the

prosecution team access to communications that he

deemed not privileged, without notice to the defense

or the court. United States v. DeLuca, 663 F. App’x

875, 877 (11th Cir. 2016). The defense discovered

this violation only when, on the eve of trial, the government filed an amended exhibit list that included

one of DeLuca’s emails to his attorney. See id.

The district court found that the government had

violated the attorney-client privilege by viewing that

email and other attorney-client communications, but

denied relief on the ground that DeLuca failed to

meet his burden to show prejudice. See id. at 878. As

the Eleventh Circuit noted in affirming, “showing

how the government used certain information within

its control as part of a criminal investigation has always been an uphill battle.” Id. at 881.

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9.

United States v. Pedersen:

In this capital case, government violations of the

attorney-client privilege, resulting from both intentional conduct and neglect, continued for years because the filter-team protocol was both deficient and

not followed, “because nobody notified defense counsel regarding these problems, and because nobody

raised these issues with the court despite many opportunities to do so.” United States v. Pedersen, No.

12-cr-431, 2014 WL 3871197, at *26 (D. Or. Aug. 6,

2014).

The government’s numerous violations of the filterteam protocol included failing to provide the filter

team with intercepted legal mail despite explicit instructions to do so, see id. at *31, and failing to run

through the filter-team process intercepted audio of

attorney-client calls, some of which included “significant substantive content regarding a number of issues including the facts of the case, legal issues pertaining to the case, [and] defense strategy,” id. at *21.

The government also failed to maintain a clear separation between the filter team and the prosecution

team—one AUSA’s dual role was “anathema to the

very purpose of a taint team.” Id. at *17, 30.

The court noted that the “most troubling aspect” of

the government’s conduct was that, despite being

aware of the problems, the government “did not alert

the court . . . on its own.” Id. at *32. Indeed, the

court observed, “It is unclear when, if ever, the government would have raised these issues on its own.

Rather, it was the accidental provision of privileged

calls through discovery and the very hard work of defense counsel that ultimately resulted in the exposure

of the conduct in this case.” Id. Partly for that reason, the court expressed concern that the govern-

20

ment’s transgressions in the case were “likely to recur

absent corrective action.” Id. at *2.

10. United States v. Kaplan:

The government, suspecting that defendant Solomon Kaplan was perpetrating fraud through his law

practice, searched Kaplan’s office and seized numerous files. The affidavit in support of the search warrant detailed procedures through which an “ethical

wall” attorney would screen seized documents for

privilege. United States v. Kaplan, No. 02-cr-883,

2003 WL 22880914, at *1 (S.D.N.Y. Dec. 5, 2003).

The court found it “apparent that the procedures

used by the Government in this case were of little use

in protecting any privileged materials seized by the

Government.” Id. at *11. Contrary to the procedures

the government affirmed to the magistrate judge

would be used, an FBI case agent—not a member of

the “ethical Wall Team”—was given access to privileged materials and allowed to make his own determination whether the crime-fraud exception applied.

Id. The court noted that the breakdown of the filterteam procedures in this case “raises serious concerns

about the admissibility of information gained in the

investigation of leads developed as a result of review

of materials that ultimately are determined to be

privileged, and eviscerates any claim that an ‘ethical

wall team’ within the Government effectively screens

the prosecution team from privileged materials.” Id.

11. United States v. Noriega:

Perhaps the most famous example of filter-team

failure occurred in the government’s prosecution of

former Panamanian dictator Manuel Noriega. After

the government obtained audio recordings of Noriega’s prison phone calls, it developed procedures

pursuant to which the recordings would be screened

21

for privilege by a DEA agent not involved in the prosecution. See United States v. Noriega, 764 F. Supp.

1480, 1483 (S.D. Fla. 1991). This filter agent failed to

screen many of the recordings, however, and agents

assisting the prosecution received and reviewed numerous attorney-client conversations, including a

conversation about two potential government witnesses that a government witness himself reviewed.

After that witness conveyed the substance of the privileged conversation in a memo he prepared for the

prosecution’s use, the lead prosecutor asked the filter

agent to check whether the relevant audiotape contained any attorney-client conversations—the filter

agent erroneously reported back that it did not. See

id. at 1483-84.

The government’s review of Noriega’s privileged

conversations with his attorney came to light only

when CNN somehow obtained copies of the recordings. The district court observed that it was “unclear

why” Noriega’s privileged conversations with his defense team “were not recognized as such by the outside screeners and DEA agents reviewing the tapes,

or by the agents briefed by” the government’s witness. Id. at 1489.

III.

Alternative Approaches That Would

Avoid These Problems are Available and

Should Be Adopted.

Alternative approaches for reviewing assertedly

privileged material after a search and seizure are

available, have been adopted in numerous cases, and

are more protective of client confidences than filterteam procedures.

The most common alternative approach to a government filter team is for the district court to appoint

22

a special master or magistrate judge to make privilege determinations. Importantly, under this approach—unlike that adopted below—the government

has no opportunity to review the content of documents that the adjudicator later determines are privileged. Consequently, there is no risk that filter-team

agents will—inadvertently or otherwise—disclose

privileged documents to the prosecution team, or

share information they have learned in those documents, or use that information in another investigation. This approach, with its neutral arbiter and other attendant safeguards, is more protective of privilege and more likely to engender (and be worthy of)

public confidence in the administration of justice.

That alternative is the approach adopted, for example, in the recent cases involving Michael Cohen

and Rudy Giuliani. See Order of Appointment, In re

Search Warrants Executed on April 9, 2018, No. 18MJ-3161 (S.D.N.Y. April 27, 2018), ECF No. 30;

Transcript of Hearing at 88, In re Search Warrants

Executed on April 9, 2018, No. 18-MJ-3161 (S.D.N.Y.

Sept. 18, 2018), ECF No. 104. Circuit courts have

recommended this approach, and district courts have

adopted it, for decades in other cases. See In re

Search Warrant Issued June 13, 2019, 942 F.3d at

181; Klitzman, Klitzman & Gallagher v. Krut, 744

F.2d 955, 962 (3d Cir. 1984); Gallego, 2018 WL

4257967, at *3; United States v. Stewart, No. 02-cr-3,

2002 WL 1300059, at *10 (S.D.N.Y. June 11, 2002).

The particular approach proposed below by Petitioners—preparation of a privilege log by the defendant,

followed by judicial resolution of any disputes that

may arise—is common to civil litigation, and in the

criminal context would simply require the government to make the initial showing required by United

23

States v. Zolin, 491 U.S. 554 (1989), before the district court could review documents in camera.

As the various cases adopting alternatives to filterteam procedures illustrate, these alternatives are

well-established and eminently workable. Indeed,

the government itself has proposed engaging a special master in some cases, including the Giuliani

case. And of course, the government regularly invokes the process prescribed by Zolin in civil cases,

where more than three decades of experience have

amply demonstrated its viability.

Concerns about administrability and cost provide

no sound justification for adopting the repeatedly

failed filter-team procedures. Filter-team alternatives are not only widely used but also easily adaptable. Insofar as timeliness is a concern, for example, a

special master’s review can be conducted, and productions made, on a rolling basis. See, e.g., In re

Grand Jury Subpoenas, 454 F.3d at 524. Moreover,

costs—for which the government will ultimately be

responsible regardless of whether government agents

or a special master reviews the documents—can be

minimized by allowing for some assistance from the

parties, without permitting government agents to review the content of privileged documents. Moreover,

this Court has emphasized that “considerations of

convenience do not overcome the policies served by

the attorney-client privilege,” Upjohn, 449 U.S. at

396, and has repeatedly declined to justify intrusions

on the privilege based on prosecutorial interests such

as these. See, e.g., id.; Swidler & Berlin v. United

States, 524 U.S. 399, 410 (1998).

*

*

*

The use of filter teams fundamentally and unnecessarily intrudes on criminal defendants’ attorney-

24

client privilege and work product doctrine, and has

led to severe violations of those protections in numerous cases. The time has come for this Court to take a

close look at those procedures and provide needed

guidance.

CONCLUSION

For the foregoing reasons, amici respectfully

submit that the Court should grant the petition for a

writ of certiorari.

May 20, 2022

Respectfully submitted,

COUNSEL FOR AMICI CURIAE

JONATHAN I. KRAVIS

Counsel of Record

BRENDAN B. GANTS

MUNGER, TOLLES & OLSON LLP

601 Massachusetts Ave. NW

Suite 500E

Washington, D.C. 20001

(202) 220-1100

Jonathan.Kravis@mto.com