An order by a Georgia District Court judge regarding federal search warrants could have far-reaching implications for all future cases involving investigations of attorneys and law firms nationwide.
In his Dec. 15 order regarding a search warrant against a Georgia attorney under investigation by the US Department of Justice and the law firm where they previously worked, Judge Steven Grimberg of the US District Court for the Northern District of Georgia An injunction ordered the government to be “restrained and prevented from reviewing the seized communications in accordance with its proposed filtering protocol”.
A filtering protocol is the method by which the FBI first assembles a team to review the documents and then weeds out any communications deemed to be protected by attorney-client privilege.
Typically, the filter team, also known as the taint team, consists of a prosecutor from the same agency who is not working on the case, and FBI agents or other federal agency officials, usually from the same area.
Scott Grubman, Chilivas Grubman Dalbey & Warner (Photo Courtesy)
But by order of Grimberg, the U.S. Attorney’s Office must assign a filter team from an office or part of the Justice Department outside of Defense-assigned states, and all other federal agents assigned to the team must report to a field office outside of those same states .
Since all other information on Grimberg’s case has been sealed as neither the attorney nor the law firm have been charged, the only information about the two parties mentioned in the order is that the firm is a small law firm based in Georgia and so on Attorney previously worked there and is the target of government investigations.
The states involved in this case are Georgia, Alabama, Kentucky, North Carolina, Ohio, South Carolina and Tennessee, where the attorney and law firm did business, said Scott Grubman, a partner at Atlanta law firm Chilivis Grubman Dalbey & Warner, who represents both the lawyer and the law firm.
In her case, under the normal rules of filtering protocols, the government was allowed to present as evidence any emails, texts or other documents it deemed useful for the prosecution’s investigation and not share them with the defense until then. But under Grimberg’s order, any communications documents the filter team deems necessary must be included in its investigation and “marked as privileged and redactable” shared with the defense before being disclosed as evidence in the case.
The defense then has 45 days from receipt of those documents to object to their disclosure or the extent of any proposed redacting. If the defense does not respond, these documents can be attached as evidence. But if the defense responds, both sides will have to meet to find a compromise on the documents in question. If no agreement can be reached, the judge can appoint a special arbitrator.
After these meetings and a possible arbitration, only the agreed documents would be disclosed as evidence.
Grubman called the order a victory for his clients and others in similar situations.
“It is very, very common that … as part of most, if not the vast majority of, commercial cases, federal agencies send search warrants to email providers to obtain emails, and then those emails as part review their investigations,” he said, adding that the government tried to circumvent the issue of attorney-client privilege documents by simply appointing another prosecutor from the same office where the prosecutor is based in this case Has. “Lawyers have been concerned about this for years” because the filter team’s prosecutor could use this evidence to launch other investigations.
Grubman also said the issue drew national attention in 2018 when President Donald Trump’s attorney Michael Cohen was under a federal investigation and his communications documents were to be used as part of that investigation, although some were protected by attorney-client privilege. After a settlement, Cohen was sentenced to three years in prison for federal tax offenses, lying to Congress and campaign finance violations.
Grubman said Grimberg’s ruling that the defense could see the documents before prosecutors was “huge” and the “most significant part” of the order.
“In civil trials everything is open and either side can see the evidence before the trial,” he said. “Criminal procedures are different, and in the vast majority of cases, the defense doesn’t see the documents until someone is charged. That was a big disadvantage for the defence.
“There was another case in the Fourth Circle [U.S.] Court of Appeals I relied on where the defense team was [successfully] challenged the filtering process. But there have been very few cases that have successfully challenged the filter team process.”
Grubman said after posting a message about the judge’s decision on LinkedIn, several attorneys handling similar cases contacted him to request a copy of the order. He said he hoped any future federal investigations against attorneys and/or law firms would have similar restrictive filtering protocols.
“I would think so,” he said. “…Personally, I’ve had several cases over the past few years where I’ve represented an attorney or law firm. It certainly opens the door for defense attorneys representing attorneys and law firms to make these arguments.
Bob Page, spokesman for the US Attorney’s Office for the Northern District of Georgia, said the government declined to comment on the judge’s ruling.
Read the order here:
This article was updated December 23 with a quote from Bob Page, spokesman for the US Attorney’s Office for the Northern District of Georgia.
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