Wednesday, December 8, 2021
Christina Frohock (University of Miami - School of Law) has posted Special Matters: Filtering Privileged Materials in Federal Prosecutions (American Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
This Article reviews the U.S. Department of Justice’s toolbox for handling potentially privileged materials, with close attention to the evolution from filter teams to the Special Matters Unit in fraud prosecutions. Significant case opinions from the U.S. Courts of Appeals for the Fourth, Sixth, and Eleventh Circuits reveal the judiciary’s diverse views on filter teams. The recent case of United States v. Esformes in the U.S. District Court for the Southern District of Florida, now on appeal to the Eleventh Circuit, illustrates how a filter team can fall short and draw unflattering attention to the Department of Justice. In the wake of Esformes and other filter team criticisms, the Department introduced the Special Matters Unit to usher in a new, improved, and centralized team. Underlying all these privilege strategies is a view of criminal justice as quasi-adversarial. The special role for prosecutors to seek justice rather than convictions implies that a criminal prosecution is not purely competitive. This quasi-adversarial view is the invisible side to privilege, justifying and animating the Department of Justice’s privilege strategies.