“You Break It, You Buy It”

The Iowa Supreme Court has held that the judicial branch is obligated to pay for an outside review of a privilege review

A county sheriff’s office applied for and obtained a search warrant to seize and search the email account of a criminal defendant in a public corruption case. The search warrant provided that the seized materials would be turned over to the district court to review the seized materials for communications protected by the attorney–client privilege. The district court was unable to complete the review as ordered in the search warrant and decided to hire a technology vendor to assist in the privilege review. The question presented in this appeal is who is responsible for the costs of the technology vendor hired to assist in conducting the privilege review of the email account information: the defendant, the prosecution, or the judicial branch? Applying the old rule, “You break it, you buy it,” we conclude the judicial branch should be responsible for the costs of the technology vendor hired to assist in conducting the initial privilege review under the particular facts presented here.

Determining privilege

In taking precautions to protect the defendant’s privileged communications, the district court could have proceeded in several ways. The district court could have ordered that a taint team or filter team conduct the first round of privilege review rather than volunteering to conduct the privilege review on behalf of the parties. Numerous courts around the country have discussed the use of taint teams or filter teams to conduct the first round of privilege review. The reaction of courts to the use of taint teams or filter teams has ranged from outright rejection to cautious acceptance to open endorsement.

After discussing the options, the court addressed the payment issue

After full consideration of the parties’ arguments and reviewing the relevant authorities, we conclude the judicial branch should be responsible for the costs of the technology vendor employed in this case. In reaching that conclusion, we need not resolve whether the Code authorizes the costs to be taxed or whether Digital Intelligence was employed as a special master. Here, in the search warrant, the district court took responsibility for conducting the initial privilege review. The seized materials were to be provided to the district court rather than the parties, and the district court ordered that it would “review the material en camera . . . [and] remove attorney–client privileged communications.” Ultimately, the district court was unable to conduct the privilege review as directed in the search warrant and was compelled to employ a third-party vendor to carry out the task it voluntarily assumed. Under these unique circumstances, we conclude the judicial branch, in all fairness, must be held responsible for the costs of the vendor it employed.

(Mike Frisch)