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United States v. Warshak

April 10, 2007

UNITED STATES OF AMERICA,
v.
STEVEN E. WARSHAK, ET AL.



The opinion of the court was delivered by: S. Arthur Spiegel United States Senior District Judge

OPINION AND ORDER

This matter is before the Court on the Emergency Motion of Defendants Steven Warshak, Paul Kellogg, and Berkeley Premium Nutraceuticals, Inc, ("BPN") for Relief with Respect to "Taint Team" Procedures (doc. 87), the Government's Response in Opposition (doc. 89), and Defendants' Reply (doc. 91). The Court declines to schedule a hearing on this matter so as to expedite this ruling. For the reasons indicated herein, the Court GRANTS Defendants' Motion, to the extent that it ORDERS the government to provide Defendants with copies of all documents or communications of any description, including emails or other electronic communications, which have been provided, or which are in the future provided, to the government "taint team" for its review, or which have otherwise been screened for attorney-client communications.

On June 9, 2006, Chief Judge Beckwith entered an Order in the related civil case, No. 1:06-CV-00234, (doc. 22), permitting the government to proceed with a "taint team" review process, under which government agents who are not part of the prosecution/investigation team screen seized materials for privileged documents, and under which counsel for Warshak and BPN could also review such materials and seek judicial intervention prior to any disclosure to the prosecution. After all the related civil cases were transferred to this Court, this Court entered a stay of the civil cases, on December 27, 2007, in which it also indicated that such stay should "in no way affect the work of the 'taint team.'"

Judge Beckwith's Order clearly envisioned a simultaneous review of seized documents segregated as potentially privileged. She stated, "[t]he Court believes the process of winnowing down the materials to those documents truly in dispute is most efficiently conducted by each party independently, but simultaneously, conducting its own review." (doc. 22). Defendants bring their current "Emergency Motion," out of concern that they have received no further materials since the initiation of the "taint team" process, and the government has declined to affirm that Defendants have been provided with copies of all materials segregated for taint team review (Id.). Defendants request an order therefore either sealing all communications between themselves and their counsel which were screened for privilege and/or provided to the taint team after Judge Beckwith's Order, and requiring the government to return the originals; or an order providing Defendants with all copies of all documents or communications of any description, including emails or other electronic communications, which have been provided, or which are in the future provided, to the government "taint team" for its review, or which have otherwise been screened for attorney client communications, and that the government be required to certify that it has provided all such materials to Defendants.

The government responds that it has complied with the taint procedure, and that to date approximately 7700 documents have been reviewed by both parties (doc. 89). The government indicates the process "is going forward as intended and envisioned" (Id.). Finally, the government argues that should Defendants believe the government intends to use privileged documents at trial, they should file a motion in limine or move to suppress such evidence (Id.).

Defendants respond that if they are in possession of all materials screened for taint team review or which have actually been provided to the taint team for its review, in accordance with Judge Beckwith's Order, why cannot the government just say so? (doc. 91). Defendants argue the government misapprehends the purpose of privilege review by suggesting Defendants file motions in limine or to suppress (Id.). According to Defendants, in accordance with In Re Grand Jury Subpoenas, 454 F.3d 511 (6th Cir. 2006), the entire purpose of privilege review is to prevent any review at all by the prosecution of privileged communications (Id.). Defendants argue that the government's refusal to confirm that all potentially privileged documents have been provided to Defendants justifiably gives rise to a belief by Defendants that the government may not have turned over all such information, in compliance with Judge Beckwith's Order (Id.).

Having reviewed this matter, the Court finds Defendants' position well-taken. Should the government have seized any potentially privileged materials, all such materials fall under the scope of Judge Beckwith's Order, and should be provided to the taint team and to the Defendants. If not, the Court sees no undue burden on the government to simply declare that it has provided any potentially privileged documents to the taint team and Defendants for their simultaneous review.

Accordingly the Court GRANTS Defendants' Motion (doc. 87) to the extent that it ORDERS the government to provide Defendants with copies, if not previously produced, of all documents or communications of any description, including emails or other electronic communications, which have been provided, or which are in the future provided, to the government "taint team" for its review, or which have otherwise been screened for attorney-client communications. Should the government have already produced all such materials, it is not harmed by simply declaring that it has done so.

SO ORDERED

20070410

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