Evidence Derived From Violation of Attorney-Client Privilege Not Subject to Kastigar Taint Hearing or to Suppression Under Fruit-of-the-Poisonous Tree Doctrine
January 18, 2011
A recent Sixth Circuit case exposed Enzyte, a widely promoted male performance-enhancing product, as a fraud. The lead defendant and promoter maintained government agents improperly acquired thousands of attorney-client communications when they imaged more than 90 computers during a search of his company’s offices and argued the government should be obliged to prove its case was untainted by evidence derived from the privileged communications. Having previously suggested a taint hearing was required when the government derived evidence from attorney-client communications, the Sixth Circuit -- finding itself alone among the courts of appeal in doing so -- reconsidered and reversed itself, holding only evidence developed from the exploitation of constitutional privileges is subject to a full-blown Kastigar hearing and risks suppression under the fruit-of-the-poisonous tree analysis.