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Case 1:18-cr-00224-ALC

[Type text] Septe
[Type text]
Septe

Document 64

Filed 10/01/18

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U.S. Department of Justice

United States Attorney Southern District of New York

Via ECF The Honorable Andrew L. Carter, Jr. United States District Judge Southern District of New York United State Courthouse 40 Foley Square, Courtroom 1306 New York, New York 10007

The Silvio J. Mollo Building One Saint Andrew’s Plaza New York, New York 10007

October 1, 2018

Re: United States v. Ali Sadr Hashemi Nejad, 18 Cr. 224 (ALC)

Dear Judge Carter:

We write to update the Court about the Government’s compliance with the Court’s order of September 7, 2018, which directed the Government to produce to the defense a “complete data set of discovery that is reasonably free of technical problems” in advance of the status conference scheduled for October 16. As of today, the Government believes it has complied with the Court’s order, as explained below.

First, some context is helpful. On April 5, 2018, the Government produced to the defense a complete and exact copy of the defendant’s email data in the same format as it was produced to the Government by the email service providers that hosted the defendant’s email accounts. In other words, the defense has possessed a full set of the defendant’s email data in its native format since April. The defense has not alleged that there are any technical problems associated with that data, which the defense could process and review at any time.

During subsequent conversations with defense counsel, the Government informed the defense that it had previously processed the email data received from the service providers and had conducted an extensive and diligent review of it to identify and withhold from the prosecution team any attorney-client privileged materials. As part of that review, the Government’s taint team (which comprised lawyers and staff at the New York County District Attorney’s Office), ran a list of more than 200 search terms against the defendant’s approximately 373,755 email documents in an effort to identify those documents that may contain attorney-client privileged materials. Of those 373,755 documents, approximately 38,977 were flagged and initially withheld from the prosecution team so that the taint team could determine whether they in fact were subject to the attorney-client privilege. Ultimately, approximately 8,615 documents were identified by the taint team as subject to the attorney-client privilege and were withheld from the prosecution team. The remaining approximately 365,140 documents were released to the prosecution team for review.

Case 1:18-cr-00224-ALC

Document 64

Filed 10/01/18

The Honorable Andrew L. Carter, Jr., U.S.D.J. October 1, 2018 Page 2

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On August 16, 2018, the Government agreed to produce to the defense a copy of the approximately 365,140 email documents that were released to the prosecution team, as well as the approximately 8,615 email documents that were withheld from the prosecution team pursuant to the above-described privilege review. It is this second production of the defendant’s email documents that the defendant’s prior attorneys alleged contained “technical IT issues” rendering approximately 44,000 of the documents unsearchable.

As an initial matter, the Government disagrees with many of the substantive assertions contained in the defendant’s letters of August 27, 2018 and September 5, 2018, and the Government intends to address those issues in advance of the next conference. Nevertheless, since the Court’s order of September 7, the Government’s IT and taint teams have worked diligently to identify and address the technical issues the defense had encountered. Following a conference with the defendant’s new counsel on September 20, counsel for the defendant and members of the Government’s IT and taint teams conferred on multiple occasions to facilitate that process.

In an effort to resolve any possible technical issues, the Government’s IT and taint teams agreed to reprocess the entire database containing the defendant’s email documents that were reviewed, withheld, and released by the taint team, and agreed to extract additional metadata requested by the defense for them. To the extent the Government’s taint team identified email documents that were not searchable (which totaled far less than the 44,000 initially alleged by the defense), it is because the majority of those documents are attachments that contain data that is not capable of being searched at all, either by the defense or the Government (e.g., music or photographic data, or directory or container files).

Case 1:18-cr-00224-ALC

Document 64

Filed 10/01/18

The Honorable Andrew L. Carter, Jr., U.S.D.J. October 1, 2018 Page 3

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After reprocessing the defendant’s approximately 373,755 email documents, the Government electronically produced them to the defense on a rolling basis between Friday, September 28 and Sunday, September 30. At the conclusion of the production, the Government’s IT and taint teams identified approximately 2,700 items (i.e., less than 1% of the total production) that did not contain text after they were processed. The Government’s IT and taint teams are working diligently to address this remaining, and relatively small, issue. But, at this time, the Government believes that it has provided a “complete data set of discovery that is reasonably free of technical problems” to the defense and, thus, has complied with the Court’s September 7 order.

CC: Defense Counsel (via ECF)

Respectfully submitted,

GEOFFREY S. BERMAN United States Attorney

by:

/s/

Andrew DeFilippis Matthew Laroche Rebekah Donaleski Assistant United States Attorneys (212) 637-2420

Garrett Lynch Special Assistant United States Attorney