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Case 1:18-cr-00224-ALC Document 66 Filed 10/15/18 Page 1 of 7




v. Case No. 18 Cr. 224 (ALC)



Pursuant to the Court’s Order dated September 7, 2018, the parties submit this joint status

report regarding the privilege review plan going forward. The government joins in Parts I, II,

and IV. The government does not join in Part III because the government disputes Sadr’s

assertions regarding the discovery productions and privilege review process.

Since the Court’s September 7 Order, the government’s prosecution and filter teams have

halted any discovery review. The parties jointly propose that the Court allow the filter team, but

not the prosecution team, to regain access to the discovery material to conduct the privilege

review, as outlined below. Sadr is continuing to assess the extent of any alleged prejudice

caused by the initial privilege review and will file a pretrial motion should he seek any additional



On September 18, 2018, Steptoe & Johnson LLP entered an appearance to substitute as

lead counsel in this matter going forward. ECF No. 56. On October 2, 2018, the Court granted

the request by Sadr’s prior counsel to withdraw. ECF No. 65.

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Earlier, on September 7, 2018, the Court ordered the government to halt any government

review of discovery in this matter because of the possibility that the government’s taint team

provided privileged material to the prosecution team and the presence of significant technical

issues in the discovery productions. ECF No. 53; see ECF Nos. 47, 51 (letters from former

defense counsel detailing reasons to believe prosecution has had access to privileged material).

The Court ordered the government to produce a complete set of discovery to Sadr “reasonably

free of technical problems” by September 21, 2018. ECF No. 53.

On September 21, 2018, the government obtained an extension of time to produce the

discovery to Sadr. ECF No. 60. The government produced the discovery on a rolling basis

between September 28 and September 30, 2018. ECF No. 64. The government represented in

an October 1, 2018 letter that its IT and taint teams identified approximately 2,700 remaining

documents with unsearchable text in its corrected production. Id. Shortly thereafter, Sadr

informed the taint team that in fact approximately 7,255 additional files in the September 28-30,

2018 production had errors preventing effective review. Rolling productions since the October 1

letter have remedied some of these errors, but there remain outstanding issues that the defense is

working cooperatively with the government’s IT and taint teams to resolve.1

There remain at least four outstanding issues. First, the taint team renumbered some of
the files and is trying to remedy this issue. Second, the taint team produced 211 files that were
not included in the July 13 and August 16 productions even though they have been provided to
the prosecution team. The taint team has not yet sent Sadr a list of these files. Third, there is a
discrepancy between the 373,755 files referenced in the government’s October 1 letter and the
373,877 files actually produced to Sadr. Fourth, the taint team produced the files in a format
with substantial HTML code that interferes with the ability to read or print the document. The
taint team is in the process of fixing this problem. The government is expeditiously addressing
each of these issues with defense counsel and expects them to be resolved in the near future.

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To understand the extent of the prosecution team’s access to privileged materials, Sadr

sent a letter to the government seeking an explanation of the taint team’s procedures, filtering

process, and other relevant information. See Exhibit A (Letter from Brian Heberlig to

Government Counsel, dated September 25, 2018). The government responded by letter dated

October 15, 2018. See Exhibit B (Letter from Government Counsel to Sadr’s Counsel, dated

October 15, 2018).



Sadr maintains that the prosecution team’s access to privileged material falls into at least

two categories. Sadr includes this information to explain the need for a new privilege review.

The government “disagree[s] with the defendant’s characterization[s] of the Government’s

access to privileged material and of DANY’s privilege review,” and declined to join Sadr’s draft

joint status report unless they were deleted. Ex. B, at 2. Sadr believes this information provides

necessary context and invited the government to identify any substantive errors in this section of

the status report.

First, the government’s taint team conducted a deficient review and filter process.

Among other things, it provided the prosecution team with documents that the taint team deemed

privileged,3 used under-inclusive privilege search terms, and failed to screen at all for marital

The government disputes the factual assertions in Part III, including footnotes 3 and 4.
Specifically, Sadr has identified multiple instances in which the taint team withheld a
document from the prosecution team as privileged, but “cleared” to the prosecution team an
exact duplicate of the document. Sadr’s former counsel identified one example of such a
document, see ECF No. 47, at 3-4, and undersigned counsel has identified additional instances of
this same error.

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communications. Sadr’s prior counsel detailed these shortcomings in a prior submission to the

Court. ECF No. 47.

Second, the taint team provided the prosecution team with thousands of documents that

were not screened for privilege because their formats rendered the text of the documents

“unsearchable” electronically—that is, the electronic search for specified terms did not register

on those documents, and the taint team did not conduct a manual screening review. Sadr’s prior

counsel identified 44,164 documents in the August 16 production that were produced in a non-

searchable format. ECF No. 47. The government now appears to take issue with that figure,

stating the non-searchable documents were “far less” than 44,164 and the “majority” of them

consisted of file types incapable of being searched. ECF No. 64, at 2. In fact, Sadr has provided

the taint team with a complete list of the 44,164 unsearchable files in the August 16 production.

The filter team initially claimed that at most 7,000 of these files could possibly contain

searchable text. However, the September 28-30, 2018 production included newly searchable text

for 24,248 files.4 Importantly, that searchable text does not appear to have been present when

the taint team provided those files to the prosecution team—potentially without any file-specific

privilege review.

Finally, the prosecution team, not the filter team, produced to Sadr his unfiltered email

and other production sets containing privileged materials. Sadr asked the government whether

the prosecution team still possesses these materials or reviewed them. See Ex. A, at 3. The

government notified Sadr that the privilege review was conducted by the New York District

19,916 of the 44,164 previously unsearchable files remain unsearchable. These
unsearchable files include documents without text (e.g., video files, audio files, or pictures
without words) and files for which the taint team says that it never received a native version from
the custodian. Steptoe has shared this number with the government’s IT and taint teams, which
are attempting to confirm it.

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Attorney’s Office (“DANY”), which “determined whether documents were privileged and

released other documents to the prosecution team at DANY (the ‘Released Documents’).” Ex.

B, at 2. The government further noted that “DANY’s privilege review process took place prior

to SDNY’s involvement in this case. As a result, the Released Documents were not, and have

never been, made available to prosecutors in this Office (that is, SDNY prosecutors), except the

undersigned Special AUSA.” Id.


The parties propose the following privilege review plan going forward.

First, a filter team at the U.S. Attorney’s Office (“USAO Filter Team”) will conduct the

privilege review for the Government. As part of that process, the USAO Filter Team will load

Sadr’s email accounts into its database, and the USAO Filter Team will seek appropriate

assistance from members of DANY’s filter team that conducted the original privilege review of

Sadr’s accounts.

Second, the USAO Filter Team will supplement the privilege review of Sadr’s emails,

including searching for the names and email addresses of additional attorneys identified by

Sadr’s counsel and generic privilege search terms agreed to by the parties and reflecting input

from Sadr. Sadr’s counsel has compiled such a list and will provide it to the USAO Filter Team.

The list of search terms will include such terms in all of the languages that may appear in the

seized documents, including English, Spanish, and Farsi. Steptoe will work with the USAO

Filter Team to create a search methodology that will minimize the number of false positives from

potentially broad search terms. The government reserves the right to object to Sadr’s proposed

search terms and, to the extent the parties cannot reach agreement, will raise any disputes with

the Court. In addition, Sadr’s counsel will provide email addresses and names of Sadr’s current

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and former wives to the USAO Filter Team so it can also screen from the prosecution team

confidential spousal communications.

Third, Sadr will provide the USAO Filter Team with a list of all of the privileged

documents he has identified to date in the earlier production to the prosecution team. This will

include a complete set of marital communications. It will also include the attorney-client

privileged documents Sadr has been able to identify since receiving the September 28-30, 2018

production. For each such document, Sadr will identify the privilege holder and which type of

privilege covers each document. Moreover, Sadr is willing to update this list as he reviews the

discovery material in preparation for trial. Sadr and his counsel will work cooperatively with the

USAO Filter Team to ensure that the new privilege review is as effective as possible. Both

parties reserve their rights to request that the Court set appropriate deadlines to complete this

process in advance of trial.

Fourth, Sadr will be given an opportunity to assert any privilege claim over documents

identified by the new privilege search terms that the USAO Filter Team proposes to clear, before

those documents are produced to the prosecution team. If Sadr objects on privilege grounds to

any document that the USAO Filter Team proposes to clear to the prosecution team, defense

counsel and the USAO Filter Team will meet and confer to attempt to resolve these objections.

Any objections incapable of being resolved through this process would be resolved by the Court.

Sadr does not object to the prosecution team resuming access to documents that are not

flagged by the privilege search terms or by Sadr. Sadr will work cooperatively and expeditiously

with the USAO Filter Team to address the remaining documents.

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For the foregoing reasons, the Court should approve a new privilege review plan as set

forth in the attached proposed order.

Respectfully submitted,

United States Attorney  
by: /s/ /s/
Andrew DeFilippis Reid H. Weingarten
Matthew Laroche Michelle L. Levin
Rebekah Donaleski STEPTOE & JOHNSON LLP
Assistant United States Attorneys 1114 Avenue of the Americas
One Saint Andrew’s Plaza New York, New York 10036
New York, New York 10007 Tel: (212) 506-3900
(212) 637-2420 Fax: (212) 506-3950
Garrett Lynch
Special Assistant United States Attorney
Brian M. Heberlig (Pro Hac Vice)
  1330 Connecticut Avenue, N.W.
Washington, DC 20036-1795
Tel: (202) 429-3000
Fax: (202) 429-3902

Counsel for Defendant

Ali Sadr Hashemi Nejad 
Dated: October 15, 2018