When the FBI searches your lawyer’s office
I seem to recall that two separate taint teams are at work in U.S. v. Scruggs — and they should be. Neither side’s motion on discovery issues implies that Team Scruggs has in any way yet participated in these taint-team examinations (as they’re described in Westheimer Road’s footnote). But that may just be part of the process that’s invisible.
At any rate, the lawyer’s role here is to assert the client’s claim of privilege over the lawyer’s own files. So where does that leave Dickie Scruggs (or any other Langston client) in the ongoing taint-team examination of Langston’s files? Can that taint team be said to have followed a process that can be upheld if the rumors come true and Langston cooperates?
The U.S. Fifth Circuit (the federal appellate court for Mississippi) has not spoken on whether this process provides sufficient protection (the only 5th Circuit case I saw was a civil case asking for an injunction for the return of documents held by a taint team). Other courts are divided, as Westheimer Road says.
Would anyone out there suggest that it’s common to have multiple law-firm searches, as we have here? Anyhow, I would expect some really interesting lawyering on these issues if this case goes forward:
— Just what 4th, 5th, and 6th Amendment issues arise when the government goes and searches your lawyer’s office?
— If the prosecution learns privileged facts they should not have known, what does that do to the prosecution? to the defense?
— What happens when the lawyer who was supposedly going to protect the privilege suddenly turns up as a witness for the other side?
— How does this complicate the prosecution(s) going forward?
FOLO
1/10/8
Magnolia Tribune
