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Case 8:18-cr-00012-TDC Document 34 Filed 09/13/18 Page 1 of 33


- - - - - - - - - - - - - - - x
: Case No. 18-0012-TDC
v. :
Defendant. :
- - - - - - - - - - - - - - - x September 4, 2018

Greenbelt, Maryland



Office of the United States Attorney
6406 Ivy Lane, Suite 800
Greenbelt, MD 20770-1249
On Behalf of the Government

United States Department of Justice
1400 New York Avenue, N.W.
Washington, D.C. 20005
On Behalf of the Government

Pillsbury Winthrop Shaw Pittman LLP
1200 17th Street, N.W.
Washington, D.C. 20036
On Behalf of the Defendant

Audio Operator: Kelly Saah

Transcription Company: CompuScribe
5100 Forbes Boulevard, Suite 101
Lanham, MD 20706
(301) 577-5882

Proceeding recorded by electronic sound recording, transcript
produced by transcription service.
Case 8:18-cr-00012-TDC Document 34 Filed 09/13/18 Page 2 of 33
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1 P R O C E E D I N G S

2 (Whereupon, at 11:36 a.m., the hearing began.)

3 THE CLERK: 18-0012, United States of American

4 versus Mark Lambert. We are here for the purpose of a status

5 conference. Counsel, please identify yourselves for the

6 record.

7 MR. SALEM: David Salem and Ephraim Wernick, from

8 the Department of Justice, for the United States, Your Honor.

9 Good morning.

10 THE COURT: Good morning.

11 MR. SULLIVAN: William Sullivan, Tom Hill and Fabio

12 Leonardi at Pillsbury Winthrop, on behalf of Defendant, Mark

13 Lambert. Good morning.

14 THE COURT: Good morning and sorry for the delay.

15 So, we are here for a status conference in this case and then

16 we say a trial date in 2019, and we talked about having a

17 session here just to see where we stand. I had noted that,

18 having set a very generous schedule to get things done, that

19 we should try and stick to it.

20 So, Mr. Salem or Mr. Wernick, what is your

21 perspective as to where we stand now --- discussion today?

22 MR. SALEM: Your Honor, at least I will start,

23 although Mr. Wernick has a lot of the details. I think we

24 have been working closely with defense counsel to try to

25 resolve some of the issues that we raised before the Court
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1 last time, which was their receipt of materials mostly from

2 electronic search warrants that appeared to either have --

3 they appeared to be either not searchable or were somehow

4 corrupt.

5 And the issue really between us was whether there

6 was something in the transmission of the documents or whether

7 they were like that in the original receipt of them when we

8 did the search warrants.

9 So, back in July, the middle of July, we extended an

10 offer to them. Excuse me. We have been narrowing the issue

11 down, and we extended an offer to them to come and look at --

12 I think it is Relativity, the database where all the discovery

13 is, to then confirm that most of the rest of the documents

14 were either not text searchable or, in any event, that they

15 had essentially a mirror image of everything that the

16 government had. And so, what they had was the same thing that

17 we had, and so there was no transmission issue.

18 They took us up on that, and I think there is a

19 paralegal from Pillsbury who is coming out to DOJ on September

20 11th. That is the date that they chose. And I think we are

21 having a taint attorney and perhaps a taint paralegal

22 available there so they can protect their files while they

23 look through the remaining documents to make sure then that

24 they have a mirror image.

25 And that should, I hope, take care of the discovery
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1 issues. From time to time we may have a few scattered

2 documents which we will supply them with, but I think

3 certainly the bulk of the close to 1 million documents has

4 been provided and hopefully soon everybody will be on the same

5 page.

6 So, I didn’t get a chance to speak to Mr. Sullivan

7 because he was traveling a lot, but I had written him and

8 suggested to him that once he knows that the firm has a mirror

9 image of the government’s documents, we would suggest to him

10 that we wait a few weeks for him to look at those things and

11 talk to his client and then we would make a written plea offer

12 to him, which I think the timing of it, Your Honor, would be

13 such that we would expect to make that offer to get a response

14 before what I think is our next status call.

15 I think we had one for November 5th. And then we

16 would know, even before the motions deadline of November 1st,

17 whether we are likely to have the trial next year or not.

18 MR. WERNICK: The only thing to add, Your Honor --

19 this is Mr. Wernick speaking. They did take us up on the

20 offer to review our database in person at DOJ’s office. There

21 will be an attorney who has been interfacing with us on these

22 issues on behalf of Mr. Lambert.

23 And in addition to just confirming that they have

24 essentially a mirror image of what we produced, it is also to

25 allow them to run searches and obtain data that would be
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1 responsive to those searches. And again, we are using a

2 filter team to make sure that the trial team is not aware of

3 any marked product.

4 But basically, to put them in the exact same

5 situation that we are. We do have a large database. I think

6 we have produced about 2.7 million pages of documents, and

7 that is we searched. We did it through search terms, and we

8 have been offering to allow them to run the same type of

9 searches so that we are level footing. And so, we are happy

10 to see that they are taking us up on the offer on September

11 11th.

12 THE COURT: Okay. So, in your view then, there are

13 no issues with the schedule right now?

14 MR. SALEM: No, Your Honor. I don’t see that. I

15 think there would be more than enough time for the motions to

16 be filed and the responses to be given and then early next

17 year to begin the process of setting up hearings and jury

18 instructions and pretrial conferences, if we are headed in

19 that direction.

20 MR. WERNICK: Again, Your Honor, Mr. Wernick here.

21 On behalf of -- it seems that the narrow issue that remains,

22 to the extent that there is one --- as well on the 11th, are a

23 few hundred thousand files that are more system files, not

24 really text files, and that is one of the things that we are

25 just trying to lock down.
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1 I know a number of search warrants were going ---

2 and mostly data that was produced. We are not tech experts,

3 but to the extent that they wanted to make admissibility

4 challenges or authenticity challenges, these are the type of

5 computer filings that we produced that possibly could be

6 relevant to those types of arguments.

7 We took a very broad view here of what is arguably

8 relevant on behalf of --- may exist. And so, I think what we

9 are talking about here then --- review things because those

10 are the types of files that are not intended to be reviewed

11 necessarily.

12 THE COURT: Okay. So, Mr. Sullivan, what is your

13 perspective on this?

14 MR. SULLIVAN: Thank you, Your Honor, and good

15 morning. My perspective is dramatically different.

16 For context, let me tell you that we have been able

17 to review about 60,000 documents that the government has

18 provided in discovery. Those documents, however, are

19 unrelated to the Department of Energy records that comprise

20 the 2.7, as Mr. Ephraim referenced, and our records suggest

21 1.8.

22 And the reason that we haven’t been able to make any

23 traction there, except for about 150,000 documents, and we are

24 not really confident that we understand what those documents

25 are either, is because, and despite counsel’s representation
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1 that we will have a mirror image, these documents are

2 unreadable. They cannot be understood, and we don’t believe

3 the government knows what they are either because they don’t

4 have any more powers of reviewing and understanding them than

5 we do. And I can give you specific granular details as to why

6 these documents are unreadable.

7 And, yes, we have engaged repeatedly over the course

8 of the summer with the government and we do have a meeting on

9 September 11th. But we don’t believe we are going to get

10 anywhere in that document review because the documents

11 themselves are not accessible to be understood for a variety

12 of technical reasons which I can explain to you.

13 THE COURT: I don’t want to go through the technical

14 details. But I would like to know is your perspective that --

15 I mean, the government has taken the view that perhaps when

16 these were just -- I mean, they probably extracted them from

17 some other computer system. They were unreadable to start

18 with or don’t show anything.

19 The question is are you saying that they can be

20 turned into something readable and it just requires the right

21 technology? Is that what you are saying?

22 MR. SULLIVAN: I am not sure. That is one of our

23 exercises on the 11th. But here is my concern. This is a

24 document dump that was given to us in connection with the

25 government’s obligation to provide discovery under Rule 16.
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1 We are trying to figure out if there is anything

2 relevant in those documents. The government apparently

3 doesn’t know because it couldn't access the documents either.

4 I am concerned that there may be relevant material with regard

5 to Mr. Lambert’s defense in particular.

6 Of course, I am also concerned about what might be

7 in those documents that are relevant to the case in general,

8 and now we will never know perhaps.

9 But I also believe that the government, simply by

10 the virtue of having these documents in its possession,

11 specifically through the exercise of the issuance of search

12 warrants, has an obligation to know what are in these

13 documents and has a Brady/Giglio obligation, which I am not

14 sure they can now fulfill, and I am very concerned about that.

15 And I would like to pursue some sort of avenue to

16 understand not only what is in these documents, whether there

17 is any relevant information, but most particularly whether is

18 any information that is particularly exculpatory or at least

19 material to the defense, and I am not --

20 THE COURT: Mr. Sullivan, where do these documents

21 come from we are talking about? You said they were from a

22 search warrant? Where were they --

23 MR. SULLIVAN: These documents are specifically from

24 the Department of Energy production that was made to DOJ

25 pursuant to a subpoena, and we also believe search warrants
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1 potentially. DOE. And so, I would like to know why DOE was

2 subpoenaed perhaps and what the specific exercise of

3 compulsory process was used, why there was an interest in DOE

4 and, of course, what the DOE documents show.

5 We can’t read them and neither can the government,

6 and that is the crucial here. The government hasn’t reviewed

7 these documents either. We had numerous and extensive

8 conversations, paralegal to paralegal, as to what these

9 documents mean, what they are and what they contain, and we

10 have gotten about 150,000 of them done.

11 Again, I can give you chapter and verse as to why

12 they are unreadable, as I have a listing of reading and access

13 issues that our IT professionals have given to me that I could

14 relay to the Court. I am not sure it is going to be

15 meaningful, but I don’t think the government can contest that

16 nobody can read this material.

17 And on September 11th that exercise will most likely

18 be fruitless. So, where are we?

19 THE COURT: Let me go back a second. Let me go back

20 to Mr. Salem for a second --

21 MR. SULLIVAN: All right.

22 THE COURT: -- because you are raising a question

23 that I want the government to answer for me.

24 If we are spending all this time worried about a

25 certain database of documents, I need to understand where
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1 these documents come from and why did the government even

2 think they are potentially relevant. Why did they produce

3 them even in corrupted form to the defense?

4 It makes a big difference whether these are

5 documents that came from Mr. Lambert’s personal computer,

6 whether they are from the Department of Energy. If they are

7 from the Department of Energy, which office and in response

8 what request from the Justice Department?

9 MR. SALEM: Mr. Wernick probably has a better handle

10 on this, but I will say this: This is not a document dump. We

11 haven’t just thrown everything that we have at them. We have

12 responded to their discovery request and that is, in essence,

13 what we are providing them, or what we have looked for are the

14 things that are responsive to the very specific discovery

15 requests they made on the government.

16 But having said that now, the DOE materials are

17 probably more familiar to Mr. Wernick. So, I hope he can

18 answer that.

19 MR. WERNICK: Thank you. Mr. Wernick speaking. I

20 will say the tone of the accusations here are really

21 surprising. We have been speaking with Rochelle Randall, one

22 of the defense attorneys on the case. I mean, multiple

23 conversations. It would have been helpful, if Mr. Sullivan

24 had these views, that he expressed them before today’s call

25 because it was certainly not the position that we have had
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1 leading into today’s call.

2 And he is also making absolutely baseless claims

3 that we subpoenaed the DOE to --

4 THE COURT: Mr. Wernick, I asked a specific

5 question. I asked a specific question, which is where did

6 these documents come from? Why did the government feel that

7 they were relevant enough to produce?

8 MR. WERNICK: Sure. Thank you, Your Honor. We have

9 a five-page index we provided of various sources setting forth

10 where all of the various documents we produced came from.

11 With respect to the DOE documents, this was a long running

12 investigation that extended far beyond Mr. Lambert for several

13 years. And that investigation was run by a task force

14 regarding the DOE and the FBI, and the data was then stored on

15 the DOE database.

16 This included search warrant materials. This

17 included materials searched of Vadeen Mickerin’s* residence.

18 He was a Russian official in this case that was --- they

19 included search warrants of his workplace, and later search

20 warrants executed on TLI itself. And so, there are --

21 THE COURT: Those documents that can’t be read,

22 where do they come from?

23 MR. WERNICK: I don’t know that they can’t be read.

24 THE COURT: Well, that Mr. Sullivan claims can’t be

25 read. Where do they come from?
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1 MR. WERNICK: Right. I think these are search

2 warrants documents, documents that were obtained through

3 search warrants that were then stored in the DOE database.

4 And again, what we are talking about are a few hundred

5 thousand --

6 THE COURT: Search warrants of who?

7 MR. WERNICK: Of Both TLI, 10X and 10M. Excuse me.

8 TLI and 10M primarily. TLI being the company where

9 Mr. Lambert worked, 10X being the -- excuse me. 10M is the

10 American subsidiary where the Russians --- nuclear energy ---

11 and Mr. Mickerin’s home to cover the electronic data that was

12 recovered there.

13 But these are fully viewable. This is what is

14 baffling. We thought we were well beyond this issue until

15 just a moment ago. And again, we made the offer multiple

16 times over the last several months that they should come and

17 run searches and obtain data and let’s do this in person. And

18 we have had multiple phone calls, and we thought these issues

19 are well past us.

20 So, that is why this is the first time, at 10:15 in

21 the morning today, that we are learning that --- view of

22 Mr. Sullivan of the discovery in this case, which is typically

23 not the case.

24 (Multiple talking.)

25 MR. SULLIVAN: Let me -- let me -- I need to take
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1 issue with that.

2 THE COURT: Hold on a second, hold on a second, hold

3 on a second.

4 MR. SULLIVAN: All right. Thank you.

5 THE COURT: Mr. Wernick, the question is are you

6 saying that all these documents are viewable? Even if they

7 haven’t been seen yet by the defense, that there is a way to

8 view them?

9 MR. WERNICK: You can certainly view them in our

10 database. There are a few hundred thousand system files that

11 are not text files. They are not files that you see words on.

12 They are coding and other -- beyond my level of expertise.

13 But if you ran searches for search terms, you will

14 find data within the DOE database is coming up as responsive.

15 So, to say that you can’t read them, at least on our database,

16 in Relativity, it can be read and we understand that it could

17 also be read by the defense.

18 In addition to turning over the documents, we also

19 went -- again, we have been working with the defense for

20 several months now to try to cure the errors they first raised

21 to us in late May, three months after this material had

22 initially been produced. And we have even created file

23 extension databases and provided that to them.

24 We are going out of our way to provide material that

25 did not exist before to help them review the material, and we
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1 are trying to solve and cure any issue that exists. So, in

2 fact, we all agreed we have been working in good faith just a

3 week ago.

4 Mr. Sullivan wasn’t on that phone call, but we

5 wanted to make sure that if anything was still to be resolved,

6 that they could resolve it on September 11th. And we wish

7 they would have taken us up on the offer to do so in mid-July,

8 but we thought that we were passed this.

9 THE COURT: Okay. One last question before I go

10 back to Mr. Sullivan. Again, I just want to get clarification

11 on this. Are you saying that all the documents -- not for

12 their coding or, like you said, --- actual documents that were

13 produced to the defense are readable, at least in the DOJ

14 system? That is what you are saying?

15 MR. WERNICK: Yes, Your Honor. I am sorry to

16 interrupt. But yes, Your Honor, that is our understanding.

17 THE COURT: So, and these are larger --- searches of

18 Mr. Mickerin or the various relevant companies here?

19 MR. WERNICK: Well, I think that is where the -- I

20 mean, certainly that is from that vast volume of material. As

21 far as the material that is going to be the most relevant at

22 trial, some of that will be included.

23 But let’s not forget we have bank records we have

24 also produced. Not only from the Sandy Spring Bank where the

25 --- payments were initiated from and the kickback payments
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1 came from, but also from the foreign banks where we received

2 responses by our --- Cyprus and Switzerland.

3 We also had emails that had been --

4 THE COURT: I am just asking for ones that are

5 allegedly corrupted and can’t be read.

6 MR. WERNICK: I understand, Your Honor, and I think

7 that -- like I said, those are -- we believe those are the

8 ones that appeared from the DOE database. But I am just

9 saying there are --- categories of materials here that is

10 highly relevant to the case that we have also produced and we

11 believe they can also review.

12 THE COURT: Okay. So, let me go back to

13 Mr. Sullivan for a second now. At least what I am hearing is

14 their position is that even though you haven’t seen these yet

15 you will be able to on September 11th through their system.

16 And then, obviously, how you transfer the same

17 material so you can look at it more specifically later on I

18 don’t know. But it sounds like they are saying these are

19 readable documents. Do you disagree?

20 MR. SULLIVAN: Yes. And wish Mr. Ettinger was on

21 the phone because he is the individual who has had extensive

22 communications with our IT professionals. What you need to

23 understand, Your Honor, and what is very subtle and nuanced,

24 and Mr. Wernick has not disclosed this, is that there are two

25 categories of materials within that broad DOE database.
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1 One category is material that is corrupted and

2 cannot even be read. A smaller category is material that can

3 be read.

4 But as throughout both of those categories, the ones

5 that are corrupted and can’t be read, the ones that can, none

6 of the documents are searchable. Because of technical

7 difficulties and flaws with the repository of materials it

8 cannot be searched. We cannot use words and descriptors to

9 find relevant information.

10 The segment of documents that can read would subject

11 our people to reading these documents, reading hundreds of

12 thousands of documents. That is completely inefficient.

13 What we have been struggling with are ways to search

14 this volume of material, and because of the corruption

15 searchability is compromised. That has been the issue that

16 Mr. Ettinger and our paralegals and our IT professionals have

17 been dealing with. That is something Mr. Wernick did not

18 disclose to you a few minutes ago.

19 It is not about them being able to read a document.

20 It is about anyone being able to search a document, and we

21 have a volume of almost two million documents. You can’t put

22 people in front of a screen to read line by line. We have

23 been trying to search, and we have been only successful in

24 searching about 150,000 of these documents.

25 So, the fact is I don’t believe the government has
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1 read all of these materials. That would be impossible. I

2 don’t believe the government has searched any of these

3 materials because, as I just said, that is impossible. There

4 is a segment that can be read, there is a segment that can be

5 read, and one of it can be searched, and that is the fact,

6 Your Honor.

7 THE COURT: So, Mr. Wernick, do you agree with that?

8 MR. WERNICK: No, Your Honor. And certainly, I

9 don’t agree necessarily that any of these are corrupt either.

10 Again, we asked multiple times, if that is the case, identify

11 which ones. We haven’t seen corruption issues.

12 This is the first time we are hearing about

13 challenges about on the repository, that there were corruption

14 issues in how they were stored. This is entirely unfounded.

15 We don’t agree with that.

16 THE COURT: How about the searchability question?

17 Are all these documents searchable, or these files?

18 MR. WERNICK: Well, I think, Your Honor, to the

19 extent we are talking about system files, those would not be

20 searchable because they are not text files. And so, I think

21 that is the category of a few hundred thousand documents,

22 but --

23 THE COURT: But if they searched the system file --

24 so, just to put it in sort of non-technical terms, are you

25 talking about you copy, let’s say, someone’s hard drive and in
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1 there there is -- I mean, I don’t know. This is more

2 rudimentary than it probably is. But there are all the files

3 that are --- run Microsoft Word or be able to run Outlook and

4 things like that. There are going to be files there.

5 Are you saying those were copied over and those are

6 the system files you are talking about, things like that?

7 MR. WERNICK: It is my understanding that it is

8 things like that, and that is one of the --- that we have been

9 trying to do; narrow it down so we can fully appreciate the

10 range of documents they are talking about. Are they just

11 those or do they also possibly include, I don’t know,

12 duplicate emails or other types of data that are included in

13 that for some reason?

14 We have been trying to seek clarity on what they

15 haven’t been able to review, and again, that is why we

16 initially made the offer two months ago to come and -- two and

17 a half months ago to come to our office and run this against

18 our database so you can -- so we can finally get to the bottom

19 of this. But again --

20 THE COURT: Explain to me, Mr. Wernick, why -- I

21 just want to answer the question about searchability. You are

22 saying you can search these records. Mr. Sullivan says they

23 can’t. Is it simply a matter that you are using a certain

24 software and they are not?

25 MR. WERNICK: We are using Relativity. I don’t
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1 recall exactly what the database is that they are using. But

2 we also suggested reviewing things in native form. We have

3 chipped about 20 percent of the images initially and wondered

4 if that was going to assist them.

5 I mean, there are a number of different types of

6 remedies that were attempted here, and ultimately we just

7 essentially -- they said that the main issue -- I read about

8 two months ago, or three months ago, was that they didn’t have

9 file extensions. So they couldn't see if something was a .doc

10 or a .exe or something else so they could see whether or

11 not -- what kind of document it was.

12 So, we went ahead and ran a brand new production to

13 show them all of the files extensions that they could --- and

14 what they had. And again, that was something new that we

15 created for them, again, to facilitates their review.

16 THE COURT: Why aren’t the two sides using the same

17 review software? It seems like if you can see the documents

18 and they can’t, then someone should have them use the same

19 review software, right?

20 MR. WERNICK: That could be certainly a solution,

21 Your Honor. But we -- the Department of Justice uses

22 Relativity. That is what we have stored, and so we provided

23 it -- but we provided it in a format that is readable on other

24 platforms. But certainly they are open to the idea of -- I

25 don’t know if they are open to it, but they are able to use
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1 Relativity and see if that works. I don’t believe that that

2 has happened yet.

3 THE COURT: ---

4 MR. SULLIVAN: We are open to anything that allows

5 us to search. But our understanding is that no search can be

6 undertaken on the vast majority of these documents, and the

7 government hasn’t even been able to search the vast majority

8 of these documents.

9 For example, on over 250,000 files, when you try to

10 search and use word descriptors, you get a return that says

11 document has no text available. On 770,000 files the text

12 simply says --

13 THE COURT: What are you using to search,

14 Mr. Sullivan? What are you using to search these documents?

15 It seems like there is a broad disconnect here. I am not

16 actually sure what you are asking for.

17 If you are asking for an extension, you are not

18 going to get today. It is too early for that. And frankly,

19 if you have not figured out how to search these documents over

20 the last three months, there is either a fundamental problem

21 or the parties haven’t been working hard enough.

22 The September 11th meeting is probably a good time

23 to see whether if simply using the government’s review

24 software would solve this problem, and we can figure out after

25 that what to do. But I am not sure, other than everyone
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1 griping about each other, what the purpose of the call today

2 is.

3 MR. SULLIVAN: Here is what --

4 THE COURT: What are you asking for, Mr. Sullivan?

5 --- of the complaints?

6 MR. SULLIVAN: I am not asking for an extension. I

7 am asking for a representation by the government that they

8 have reviewed these documents. I am asking for a

9 representation by the government that there is no Brady/Giglio

10 on these documents, and I think that is an eminently

11 reasonable request.

12 They have the documents. The documents were

13 returned to them through compulsory process. They delivered

14 the documents to us that is relevant in connection with our

15 discovery request. We can’t see them. We don’t believe they

16 can see them either, and we don’t believe they have ever

17 reviewed them either for the reasons I articulated a few

18 moments ago.

19 I will be satisfied with a representation that they

20 have reviewed the documents and there is no Brady/Giglio in

21 them. We are going to go on September 11th to try to do it,

22 but I will tell you, Your Honor, I have no confidence that

23 either party is going to be able to review or to search a

24 substantial portion of these documents.

25 And I have got to advise my client as to what the
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1 government has and whether or not anything in there is

2 relevant to the defense, and I need to be able to do that in

3 the exercise of due process and sixth amendment confrontation

4 rights. It is an eminently reasonable request from our

5 perspective we believe, Your Honor.

6 MR. SALEM: Your Honor, if I may respond for

7 Mr. Wernick?


9 MR. SALEM: Once again, there is no compulsory

10 process in the Department of Energy. These are allegations

11 here that are just unfounded. This is the database by the

12 agents that were involved in investigating a very broad case.

13 These are just highly charged allegations that are just

14 unfounded.

15 Now, as to whether or not representations -- we

16 asked for samples. We ran samples on our end, once provided,

17 of date ranges that they had. We ran them by our IT

18 department, and we could search and find material. And why

19 --- any suggestion to the contrary by Mr. Sullivan shows me

20 that he has not been plugged into the case or that he is

21 unfamiliar with these conversations, and it is a little

22 shocking to me to hear this.

23 But as to the sample of documents that have been

24 provided to us, we responded, and our IT departments have been

25 talking face-to-face. Mr. Ettinger and I have been very
Case 8:18-cr-00012-TDC Document 34 Filed 09/13/18 Page 23 of 33
feb 23

1 involved in this process. This is the first, again, that I

2 have heard this, and it is the first time that these

3 allegations have been made.

4 MR. SULLIVAN: Mr. Ettinger is well aware of these

5 difficulties. We have made numerous representations to him.

6 I am, frankly, disappointed he is not on the call. Perhaps

7 Mr. Wernick and Mr. Ettinger should get together.

8 THE COURT: How about Mr. Sullivan and Mr. Wernick

9 get together on September 11th without --- would you attend

10 that meeting?

11 MR. WERNICK: Your Honor, I would welcome -- this is

12 Mr. Wernick. I would welcome an opportunity to review

13 materials with Mr. Sullivan at any time. Unfortunately,

14 September 11th is Rosh Hashana, which I will be --- so, I am

15 not going to be working that day. But I am available the rest

16 of that week.

17 MR. SULLIVAN: I am involved in an evidentiary

18 hearing that week in San Francisco. But I appreciate the

19 Court’s --

20 THE COURT: Well, let me just step in right now. I

21 think it is a real problem if both sides are lobbing

22 accusations at each other. More from the defense, frankly,

23 than the other way around.

24 If you guys aren’t even going to go to these

25 meetings, then why I am listening to you complain about things
Case 8:18-cr-00012-TDC Document 34 Filed 09/13/18 Page 24 of 33
feb 24

1 when clearly there is a disconnect? It seems to me that lead

2 counsel have to be involved for this to work, because

3 Mr. Wernick says that Mr. Sullivan is not involved in these

4 discussions. Mr. Sullivan says that Mr. Ettinger should have

5 been involved.

6 Well, you are the ones on these calls. If you are

7 going to come here and complain, then you need to be doing

8 that based on firsthand information. So, I think the meeting

9 needs to involve both of you and not have substitutes. ---

10 other people and just let other people come and talk to me

11 rather than you.

12 MR. SULLIVAN: I am happy to work out a scheduling

13 accommodation with Mr. Wernick. I am actually very interested

14 in doing that. But I am interested in getting the

15 representation that I asked for, that the government has

16 actually searched these files and the government can represent

17 that there is no Brady/Giglio, frankly which is their

18 obligation under the case law for purposes of any materials in

19 its possession.

20 And I stand by the representations about the

21 unsearchability of a vast portion of these documents. ---

22 back and the government hasn’t reviewed them at all. And they

23 can’t represent, as they are not doing, that they did, and

24 there is the crux of the issue. It is not reviewable.

25 MR. WERNICK: So, taking these one at a time, Your
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feb 25

1 Honor, --

2 THE COURT: One says they are. So, I don’t know who

3 to believe, but --

4 MR. SULLIVAN: I am asking if he did.

5 THE COURT: --- personally tried. So, maybe you

6 should both personally try to review these and then report

7 back, rather than have things lost in translation from various

8 other people who are not on the call.

9 MR. WERNICK: Agreed, Your Honor. And again, this

10 is Mr. Wernick. Taking these one at a time, and I appreciate

11 your suggestion that we be in the same room, and I will say I

12 have been on most of the phone calls involving these issues.

13 Mr. Ettinger has been on others and the ones I have been on.

14 Mr. Ettinger would have been here today. He just

15 had a baby over the weekend, his wife did, and so he is off

16 for the next couple of weeks. We offered Ms. Renegell*, the

17 other defense attorney that has been handling the IT matters

18 on behalf of the defense, multiple -- again, this offer has

19 been extended since mid-July for anyone from the defense team

20 to come and review the database, and we would be there

21 typically.

22 It just so happens that the first available date for

23 Ms. Renegell was September 11th, and she was not available the

24 rest of the week. And this was simply going to be with her

25 and our taint team running their search terms.
Case 8:18-cr-00012-TDC Document 34 Filed 09/13/18 Page 26 of 33
feb 26

1 And we don’t want to be involved in that discussion

2 because we don’t need see their work product or what they did,

3 arguably, as fair and helpful to the defense. This is an

4 offer to help them, and they don’t want us involved in that

5 meeting. But we should not be involved in that meeting

6 because we need to protect the sanctity of what they do as

7 helpful to their defense so that they are can obtain material

8 that are responsive to certain defense terms.

9 I would suggest that that meeting still go forward,

10 --- purpose of that meeting to put them on a level playing

11 field.

12 And to respond to the second piece of have we

13 searched all of the database, I think I started of the hearing

14 this morning when the discovery matters began by saying we can

15 always try to put them in the same footing we are in. I mean,

16 we have a database of over 1.8 million documents. It would be

17 unreasonable to expect the government to look through every

18 single document.

19 What we do is we run searches. And we have provided

20 -- I think --- arguably relevant based on the source of

21 material and certainly the search term results, and they have

22 been very expansive, including materials that are beyond the

23 finite charges here. The bribery, wire fraud, and conspiracy

24 charges and money laundering charges against Mr. Lambert to

25 include people that were, frankly, unconnected.
Case 8:18-cr-00012-TDC Document 34 Filed 09/13/18 Page 27 of 33
feb 27

1 But we received a broad request. We viewed them in

2 the light most favorable to the defense and turned those over.

3 To answer the question broadly, we have fully complied with

4 our discovery obligation.

5 THE COURT: Why don’t we do this then. I will leave

6 it to all of you to decide whether the September 11th meeting

7 is useful for the purposes you have described. But I think

8 within a week of that meeting I think we need to have a

9 meeting with Mr. Sullivan and Mr. Wernick, and whoever else

10 needs to be there to run the technical systems.

11 But, Mr. Wernick, if these are really searchable,

12 you need to show Mr. Sullivan how they are searchable, at

13 least on your system, and then you can talk about how they can

14 get access to that system or get the same software or

15 otherwise.

16 And then, based on that, if there is really

17 materials, text files that can’t be searched, then that can be

18 identified at that point. But right now it seems that there

19 is a complete disconnect between the two sides. Either one

20 side is completely lying, which I don’t believe is the case,

21 or there is just a misunderstanding here as to what actually

22 can be done and what can’t be done.

23 And the one way to solve that, since both sides are

24 saying the other person wasn’t involved in this or one person

25 wasn’t on this call, it needs to be done with lead counsel and
Case 8:18-cr-00012-TDC Document 34 Filed 09/13/18 Page 28 of 33
feb 28

1 not with substitutes.

2 MR. WERNICK: Your Honor, we are committed to that.

3 Yes, we certainly will do that. I am available the rest of

4 that week through the 17th, and we can certainly talk off line

5 with Mr. Sullivan to find the appropriate time.

6 And I would just encourage -- we attempted to have a

7 phone call before this hearing so that these issues weren’t

8 first raised, to the extent that they existed. It is

9 unfortunate we dispersed one of them before Your Honor. We

10 would have preferred to at least try to resolve this matter

11 ahead of time, Your Honor, but that was not the case.

12 THE COURT: ---

13 MR. SULLIVAN: It is, Your Honor. But Mr. Ettinger

14 has been well aware of these issues. Mr. Ettinger and our IT

15 team have been working on these issues. Mr. Ettinger

16 represented to our IT team that the department has been able

17 to search large portions of this database.

18 The government has been aware of our concerns for a

19 long time. Now I will document everything in writing, copied

20 to the Court, as to what has been going because this is not

21 the first time, and Mr. Ettinger has been intimately familiar

22 with our concerns.

23 To the extent that Mr. Wernick can provide us with a

24 vehicle to search the database, as he has represented to you,

25 Your Honor, that he has, we are more than willing to have it
Case 8:18-cr-00012-TDC Document 34 Filed 09/13/18 Page 29 of 33
feb 29

1 and to pursue it as expeditiously as possible. I will

2 personally find the time to meet with Mr. Wernick at a time

3 close to September 11th, and I will have everything documented

4 for Your Honor, to the extent that we have made progress or we

5 haven’t, because, again, these issues are not new and

6 Mr. Wernick knows that.

7 THE COURT: I would like there to be -- if there is

8 any reason, which I am not sure why there would be. But if

9 there were any reason to communicate with the Court about the

10 state of these documents, that the first thing should be a

11 joint submission.

12 And if the parties can’t agree, then they can submit

13 their own separate submissions. I don’t want to get

14 gratuitous filings from one side or the other with

15 characterizations of things that the other side hasn’t had a

16 chance to review and at least comment on or point out issue

17 with. So, I don’t expect to get a lot of filings in that

18 regard.

19 If you want to document things for your own files,

20 obviously that is your own prerogative. But I think -- just

21 like today’s call, I think some understanding of where things

22 were as -- frankly, this sounds like one of these civil cases

23 where the parties simply want to play gotcha with each other

24 as opposed to actually try to solve problems, which is usually

25 what we see among criminal attorneys.
Case 8:18-cr-00012-TDC Document 34 Filed 09/13/18 Page 30 of 33
feb 30

1 Criminal attorneys usually do meet and confer. They

2 usually work well together. You don’t usually have these

3 kinds of sandbox fights. So, I would hope we could get on a

4 track where that is happening, where issues are ironed out

5 rather than simply taking an hour of everyone’s time to just

6 complain about what is going on. So, let’s try to do that

7 next time.

8 MR. SALEM: That is what we would like to do, Your

9 Honor. This is David Salem. That is what we would like to

10 do, and hopefully, we can do that.

11 MR. SULLIVAN: As would we. This is an extremely

12 important case to Mr. Lambert. His liberty is at stake.

13 THE COURT: As is the case in every criminal case,

14 as we all know.

15 MR. SULLIVAN: Let’s not minimize it by applying the

16 general standard. I have got an individual client, Mr. Salem.

17 MR. SALEM: I don’t know what that means,

18 Mr. Sullivan, but we don’t need to get into now in front of

19 the Judge.

20 MR. SULLIVAN: I understand.

21 THE COURT: By the way, maybe the confusion -- I was

22 the one who made the last comment. Well, it was Mr. Salem.

23 So, in any event, we have a motions deadline; a

24 reason to have another call. A productive reason to have a

25 call between now and November 1st.
Case 8:18-cr-00012-TDC Document 34 Filed 09/13/18 Page 31 of 33
feb 31

1 MR. WERNICK: Your Honor, this is Mr. Wernick. I

2 think we should see how the next week or two plays out when,

3 hopefully, this can be resolved when we meet face-to-face.

4 But certainly, if there were a discovery matter and the

5 defense wants to raise that, then we would be open to a

6 hearing. And if the Court wants to --- now, certainly we will

7 abide.

8 THE COURT: Why don’t we just have the parties,

9 after the September 11th and the follow up meeting with

10 Mr. Sullivan and Mr. Wernick -- if there is a need to have a

11 hearing of any kind or you can jointly file a status report

12 requesting it and we will go from there.

13 And if not, if everything is magically back on

14 track, as we all hope it will be, then there is no need for

15 that. Then we will just wait for the motions --- to be filed.

16 So, does that work for everybody?

17 MR. SALEM: That works for the government, Your

18 Honor.

19 MR. SULLIVAN: Yes, Your Honor. And apologies for

20 my misunderstanding the comment and the attribution thereto.

21 I am just highly sensitive to the fact that this is a case

22 that has been proceeding for quite some time. The original

23 arrest warrant was declined by a magistrate.

24 There were other charges levied and pleas taken two

25 years before the decision was made to indict Mr. Lambert upon
Case 8:18-cr-00012-TDC Document 34 Filed 09/13/18 Page 32 of 33
feb 32

1 what we believe is incredibly weak evidence. It has

2 represented a very difficult period for him, who the

3 government knows is seriously ill as well.

4 So, my apologies for the misunderstanding. It is a

5 very important case to Mr. Lambert, and we are very, very

6 interested in providing the best possible defense for him, as

7 is our fiduciary obligation.

8 THE COURT: Okay. And again, my point is simply

9 that I understand that. I think we all understand that in

10 every criminal case the defendant has a lot of stake, and my

11 general point is that we don’t treat any of these defendants

12 as more important than others. Obviously, they are all

13 important. That is why I have spent so much time on this case

14 up to now. My point was I don’t think it is necessary to

15 point out what is at stake in a criminal case.

16 We will wait for any joint status report requesting

17 another discussion. Otherwise, we will just stay on the

18 schedule we are on. Thank you all very much.

19 (Chorus of “Thank You”).

20 (Whereupon, at 10:47 a.m., the telephonic status

21 conference was concluded.)



24 KEYNOTE: “---” indicates inaudible in transcript.

25 “*” indicates phonetically spelled in transcript.
Case 8:18-cr-00012-TDC Document 34 Filed 09/13/18 Page 33 of 33
feb 33


I hereby certify that the foregoing is a correct

transcript from the duplicated electronic sound recording of

the proceedings in the above-entitled matter.

Fabiana E. Barham Date
Certified Transcriber, CompuScribe
Certification No.: CET**213