Recently, the Department of Justice's (DOJ) Criminal Division Fraud Section took action that may provide defendants with opportunities to preserve their legal privileges during government investigations. In late 2018, the Fraud Section began posting job opportunities for a privilege team dedicated to assisting prosecutors in resolving legal privilege matters.
The formation of a designated team devoted to privilege determinations represents a shift from past practice, by which prosecuting attorneys and agents not involved in an underlying investigation were called in to review materials seized during the investigation for privilege before handing them off to the prosecuting attorneys. This move may be a response by the DOJ to recent judicial opinions and publicity criticizing the ability of these rotating privilege teams, often known as "taint teams," to adequately protect legal privilege. It remains to be seen, however, whether the development of a dedicated privilege team will markedly improve the ability of investigation subjects to protect their privileged material.
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Authored by James G. McGovern.
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