The University of Chicago Business Law Review

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The federal government frequently executes searches and seizures in the course of criminal investigations. Many of the premises searched contain materials protected by privileges, placing them outside the reach of the Department of Justice. However, again and again those materials are swept up, potentially landing in the hands of government attorneys who are not permitted to review them—placing defendants’ Sixth Amendment right to effective assistance of counsel at risk of being violated. To rectify this risk, the DOJ employs “privilege teams” to filter through seized materials, removing those that are protected by privilege, before handing off the remaining materials to the prosecution team. This process is great in theory, but heavily flawed in practice. The Justice Manual fails to require an adequate number of safeguards, resulting in recurrent mistakes and rampant inconsistencies across jurisdictions. The failure of privilege teams to provide accurate, trustworthy determinations has undermined trust in DOJ prosecutions and places the entire practice in jeopardy. This Comment will analyze the shortcomings of privilege teams and propose reforms to DOJ procedures that have the potential to save the practice and restore confidence in the DOJ’s ability to protect privilege.

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