In this case, the Sixth Circuit considered who has the right to review third-party documents for privilege in response to a grand jury subpoena— those targeted in the investigation whose privilege rights are potentially implicated, or the federal government using attorneys who operate behind a “Chinese wall” or protective screen. Under review was the District Court’s decision to allow the government’s attorneys to make the initial privilege determinations with respect to the requested documents. In reversing the District Court’s decision, the Sixth Circuit found that the public policy underlying grand jury secrecy, and the effective investigation of criminal activity, did not outweigh the accused’s rights to protection under the attorney-client privilege. On remand, the Sixth Circuit instructed the District Court to implement a procedure whereby a special master would conduct the first review of the alleged privileged documents. Thereafter, the companies under investigation would be permitted to conduct a review of the documents provided to them.
This Sixth Circuit decision brings a small victory in the arena of privilege protection to parties involved in government investigations. The appointment of a Special Discovery Master still provides targets with some relief given that their adversary is not initially deciding the fate of their privilege claims.