This note examines the Supreme Court’s substantial need to weigh in on how filter teams should be used given current circuit splits and identifies several best practices to remedy the issues they currently present. Part I discusses the principal issues for which filter teams are scrutinized. Namely, numerous district courts hold that filter teams provide the government with the unfair advantage of determining which materials from their opposing counsel are privileged. This often leads to an overly broad inclusion of privileged documents, which can violate defendants’ Sixth Amendment rights to a fair and complete trial. Some courts even go so far as to question the constitutionality of filter teams. This extreme opposition emphasizes the level of scrutiny to which filter teams are subject. Part II identifies several regulations that can successfully minimize the unfair nature of filter teams by requiring additional steps either before or after filter teams have access to privileged documents. For example, parties could agree upon document review protocols at the outset of discovery. The Supreme Court could also initially require the defending party to provide the filter team with privilege logs that describe the nature and privilege status of each seized digital document to prevent accidental privilege disclosure. Lastly, the Supreme Court could allow defendants to review filter teams’ decisions before documents are given to the prosecution. Finally, Part III of this note proposes additional layers of privilege insulation for the Supreme Court to consider if it declines to implement the proposals in Part II. These proposals go beyond suggesting regulations for existing filter teams and argue that alternative measures exist to deal with the same issues. For example, courts could protect defendants from privilege leaks with the assignment of a Special Master rather than using a filter team at all. They could also utilize the DOJ’s newly appointed, specialized "filter teams" called Special Matters Units. Finally, the Supreme Court could consider a new combination of features from Special Masters and Special Matters Units that maximize each of their best characteristics. Accordingly, while there are several options available to the Supreme Court to better regulate filter teams, there are other options of efficient privilege review available even if the court strikes them down.
#NoFilter: How Discovery Filter Teams Breach Privilege Rights and Why They Require Stricter Regulation,
11 Global Bus. L. Rev.
available at https://engagedscholarship.csuohio.edu/gblr/vol11/iss2/6