RICHMOND, Va. (CN) – A Fourth Circuit judge didn’t mince words Tuesday as he appeared unlikely to support allowing the government to continue to sift through thousands of emails confiscated in a raid on an unnamed Maryland law firm.
At issue is the tens of thousands of electronic files seized by DEA and IRS agents during a raid conducted on an unspecified date earlier this year, and how the government and the law firm can define what is privileged.
The government had been using a so-called “taint team,” federal lawyers and agents tasked with sorting through documents to make privilege decisions, until the Fourth Circuit issued a stay on the process in June.
The use of taint teams entered the mainstream during the criminal case of President Donald Trump’s former personal attorney Michael Cohen. Cohen moved to block the use of the team, and the judge eventually appointed a special master to sift through documents collected in raids on his apartment, office and hotel room.
James P. Ulwick, an attorney with the Baltimore-based Kramon & Graham, argued Tuesday before a Fourth Circuit panel on behalf of the unnamed firm. He claimed the taint team is an overreach and the judges should take steps to assign a third party arbiter instead.
“Almost all of the emails have no connection to client A,” Ulwick said, using the pseudonym for one of the subjects of the search. “This is a multi-lawyer law firm. Not only do emails reference client A and lawyer A, they also reference other lawyers and their clients.”
While the three-member panel of judges asked few questions during Ulwick’s arguments, U.S. Circuit Judge Robert King, a Bill Clinton appointee, hit the ground running as the government’s lawyer took to the podium.
“After the search, did they ask for [the firm’s] client list?” the judge asked moments after the government’s opening statement.
“The taint team was never going to talk to the clients individually,” replied Assistant U.S. Attorney Derek Hines from the Baltimore U.S. Attorney’s office.
“The government can’t come in and say, ‘Tell me who your clients are,” bellowed King. “The taint team is authorized to contact clients and ask for [privilege] waivers, is that right?”
“This is standard DOJ protocol,” Hines replied, abbreviating the U.S. Department of Justice.
King pushed back on this theory, wondering aloud if those subject to this policy ever read the protocol that would allow for what he called an overreach by the government, noting client lists are very much protected under attorney-client privilege.
The judge also struck at the broad nature of the seizure and the action the government was taking with the documents seized. He even compared the case to what Cohen faced.
“The issue here is the taint team… they could create problems for the government,” King said, before pointing to the retired judged appointed as special master in Cohen’s case as an alternative.
Hines compared the situation to federal agents walking into a lawyer’s office and sifting through documents to find those that applied to the case at hand, but King again pushed back, suggesting such a search would be problematic to him if it were to happen during his many years practicing law.
“I’d hate to think of the government handing my file cabinet down to the IRS,” he said.
While Hines stressed the seizure was part of an unspecified criminal investigation, King noted there had been no charges filed yet.
“It’s letting the fox run the hen house,” the judge said.
Hines pushed back, saying part of the investigation involved obstruction of justice and the wide swath of documents was required to give context to the specific documents they needed.
He also said further halting the review process would increase the likelihood of harm against the firm.
“More than 50% [of the documents] have been reviewed,” he said, noting the lack of precedent to support stopping the review so far along the way. “It’s a living, breathing process.”
King was joined by on the panel by Chief U.S. Circuit Judge Roger Gregory, a George W. Bush appointee, and U.S. Circuit Judge Allison Jones Rushing, a Trump appointee.
The judges did not signal when they intended to rule, but the speed of the case through the appeals process suggests an opinion will be coming soon.