Kevin Muhlendorf Comments on DOJ’s New Privilege Unit

July 23, 2020

Kevin B. Muhlendorf, partner in Wiley’s White Collar Defense & Government Investigations Practice, was quoted in a July 21 Global Investigations Review (GIR) article on the U.S. Department of Justice’s (DOJ) new specialized unit within its Criminal Division’s Fraud Section that will address privileged-related issues in white-collar crime cases.

The new privilege unit is headed by a former senior litigation counsel in the Foreign Corrupt Practices Act (FCPA) unit, who will provide guidance to prosecutors on ways to handle issues related to “evidence collection” and privilege, according to GIR.

Mr. Muhlendorf, who served as Assistant Chief in the DOJ’s Fraud Section prior to joining Wiley, said that individuals with more experience handling privilege reviews will address these issues in a consistent manner, rather than an ad-hoc team making one-off judgment calls.

This system also allows for a point of contact if defense lawyers have questions on privilege-related matters, Mr. Muhlendorf added. “With a specialized unit, I think you can, hopefully, influence the practice overall when you have someone who is in charge.”

“The concerns about the tainting in the privilege review process won’t go away just by creating this new unit, they’re still there,” Mr. Muhlendorf said. “I’m just hopeful that the new unit’s leadership will provide more accountability and an internal point of contact with authority if we think there is a problem, to prevent the government from improperly accessing privileged materials in the first instance.”

To read the article, click here (subscription required).