Académique Documents
Professionnel Documents
Culture Documents
U.S. 141, 146 (1973). See also Communist Party v. Subversive Activities Control
Board, 351 U.S. 115, 124 (1956); Ballard v. United States, 329 U.S. 187, 193
(1946). As the Supreme Court declared in Communist Party, [t]he untainted
administration of justice is certainly one of the most cherished aspects of our
institutions, and [i]ts observance is one of our proudest boasts. 351 U.S. at
124. Through their supervisory powers, courts ensure that the administration of
justice conforms to civilized standards of procedure and evidence. McNabb v.
United States, 318 U.S. 332, 340 (1943). Though rare, courts have dismissed
indictments under their supervisory powers because of serious misconduct. See, e.g.,
United States v. Hogan, 712 F.2d 757 (2d Cir. 1983). And, Morrison did not
completely eliminate that power.
With respect to the disqualification request, the government says very little
other than suggesting that Morrison governs there as well. It does not. The less
severe sanction of disqualification is governed by completely different and less
burdensome standards. We use the remainder of this Reply primarily to focus the
Court on the disqualification remedy.
-2-
I.
While the facts need to be flushed out at the scheduled hearing, at this point
there seems to be (or should be) agreement on some basic facts, including:
! Since at least 2006 the USAO has required defense counsel in every
criminal case to utilize one and only one third-party vendor, companies
owned by Ignacio Montero, for photocopying those portions of
discovery isolated by defense counsel as sufficiently important for
reproduction.
! In this case, a government agent, Deanne Lindsey, served as the
conduit between defense counsel and Mr. Monteros companies.
! Until the conduct at issue herein was uncovered in April 2016, the
government had never issued written instructions to Mr. Montero (or,
we assume, to supervising agents, if any) to maintain the confidentiality
of the documents defense counsel were selecting for copying.
! Mr. Montero has alleged in an email that since 2006 he has been
providing the U.S.D.O.J. in a majority of the cases disks (for free)
containing copies of the discovery that defense counsel selected for
copying.
-3-
1/
As discussed below, Mr. Schapiro does not agree with the accuracy of this estimate given the short
time the USAO has been investigating the allegation.
2/
None of the assertions about what SA Lindsay actually allegedly saw or used were supported by
sworn statements of any kind.
-4-
3/
Although the government has not conceded this point, every experienced FBI agent and certainly
the ones assigned to assist in discovery should be expected to know privilege-related issues.
4/
The government has revealed that the prosecutors themselves interviewed Mr. Montero but is
vague about who conducted the other interviews. See Govt. Opp., pp. 14-16.
-5-
! The USAO has only have been investigating this matter since late
April apparently through an email blast sent only to the currently
employed AUSAs.5/
B.
Not surprisingly in light of the foregoing choices, the prosecutors have doubled
down in their Opposition, arguing among other things that neither they nor any other
member of the prosecution team should be disqualified because:
! Dr. Schapiros prosecutors did not have actual knowledge that this
was going on and are not vicariously responsible for the conduct of
other members of the prosecution team, including SA Lindsey.
! So far at least, no current AUSA in the office has acknowledged
knowing that this practice has been going on since 2006.
The
5/
It is unclear whether this investigation encompasses the FBI whose agents would have been the
ones in direct contact with Mr. Montero.
-6-
-7-
II.
6/
See generally Preventive Med. Assocs. v. Commonwealth, 465 Mass. 810, 992 N.E.2d 257 (2013)
(listing four essential component[s] a sine qua non of a valid taint team procedure); Kala v.
Aluminum Smelting & Ref. Co., 688 N.E.2d 258, 266 (Ohio 1998) (listing elements of an effective
screen); RESTATEMENT (THIRD) OF LAW GOVERNING LAWYERS 124 cmt. d (2000)
(discussing screening).
7/
See generally In re Meador, 968 S.W.2d 346, 351-52 (Tex. 1998) (noting that a trial court should
consider ... the promptness with which the attorney notifies the opposing side that he or she has
received its privileged information); ABA/BNA LAWYERS MANUAL ON PROFL CONDUCT
51:1905 (noting that courts will consider [w]hether the lawyer took prompt action to attempt
resolve the problem once it came to light).
-8-
4) The extent to which the attorney reviews and digests the privileged
information;
5) The significance of the privileged information; i.e., the extent to
which its disclosure may prejudice the privilege holders claim or
defense;
6) The extent to which the privilege holder may be at fault for the
unauthorized disclosure; and
7) The extent to which the violator will suffer prejudice from the
disqualification.
See Richards v. Jain, 168 F. Supp. 2d 1195 (W.D. Wash. 2001) (adopting In re
Meador, 968 S.W.2d 346 (Tex. 1998)). Accord Maldonado v. New Jersey, 225 F.R.D.
120, 138 (D. N.J. 2004). Although the appearance of impropriety is usually not
enough, standing alone, to require disqualification, many courts at least consider it
to be a relevant factor, specifically including the Florida Supreme Court.8/
8/
See Optyl Eyewear Fashion Intl Corp. v. Style Companies, Ltd., 760 F.2d 1045, 1049 (9th Cir.
1985) (holding that the appearance of impropriety can be a sufficient ground for disqualification);
Arnold v. Cargill Inc., No. 01-2086 (DWF/AJB), 2004 U.S. Dist. LEXIS 19381, at *16 (D. Minn.
Sept. 24, 2004) (Among the facts to be considered in determining whether [the law firms] conduct
warrants disqualification are the Courts duty to maintain public confidence in the legal profession
and its duty to insure the integrity of the judicial proceedings.) (citation omitted); Lewis v. Capital
One Servs., No. 3:04CV186, 2004 U.S. Dist. LEXIS 26978, at *13-14 (E.D. Va. June 10, 2004)
(noting that there are many cases where attorneys were disqualified despite no violation of the
attorneys duty to his or her client, but to avoid the appearance of impropriety); MMR/Wallace
Power & Indus., Inc. v. Thames Assoc., 764 F . Supp. 712, 718 (D. Conn. 1991) (where the asserted
(continued...)
-9-
(...continued)
course of conduct by counsel threatens to affect the integrity of the adversarial process, [the court]
should take appropriate measures, including disqualification, to eliminate such taint) (citation
omitted); State ex rel. Winkler v. Goldman. , No. ED104030, 2016 Mo. App. LEXIS 320, at *15
(Mo. App. Apr. 5, 2016) (ordering disqualification of prosecutors office for privilege violation in
part to remove any appearance of impropriety).
Many states have amended their rules to eliminate specific references to the appearance of
impropriety. However, Florida and many courts still consider it a factor. Baybrook Homes, Inc. v.
Banyan Const. & Dev., Inc., 991 F. Supp. 1440, 1444 (M.D. Fla. 1997) (The Supreme Court of
Florida removed the express requirement to avoid the appearance of impropriety when it modified
the Rules Regulating the Florida Bar.... Nevertheless, according to the Supreme Court of Florida and
the United States District Court for the Middle District of Florida, Florida law retains a requirement
to avoid even the appearance of impropriety.). See also Gomez v. Superior Court, 717 P.2d 902,
904 (Ariz. 1986); Villalpando v. Reagan, 121 P.3d 172, 177 (Ariz. App. 2005); Turbin v. Superior
Court, 797 P.2d 734, 738 (Ariz. App. 1990); Speckels v. Baldwin, 512 N.W.2d 171, 176 (S.D. 1994)
(internal citations omitted).
9/
See State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So. 2d 630, 633-34 (Fla. 1991) ([W]e do not
believe that a different standard now applies because the specific admonition to avoid the appearance
of impropriety does not appear in the Rules of Professional Conduct.... Accordingly, we disagree
with the court below that actual proof of prejudice is a prerequisite to disqualification under these
circumstances.); People v. Davenport, 760 N.W.2d 743, 748-50 (Mich. App. 2008) (The trial court
erroneously focused on whether defendant could prove actual prejudice arising from the conflict of
interest, instead of requiring the prosecutor to prove the absence of impropriety.); id. at 748 n.3
(quoting People v. Doyle, 406 N.W.2d 893, 899 (Mich. App. 1987)) (The general rule is that a
conflict of interest involving the elected county prosecutor himself requires recusal of the prosecutor
and the entire staff. Since assistant prosecutors act on behalf of the elected county prosecutor and
are supervised by him, the policies of fairness to the defendant and the avoidance of an appearance
of impropriety require this result.); Pisa v. Commonwealth, 393 N.E. 2d 386, 389 (Mass. 1979)
(The rules of disqualification ... are applied not only to prevent prejudice to a party, but also to
avoid even the appearance of impropriety.).
-10-
The government disputes this factor on two fronts. First, it argues that the there
was not even a potential work product or constitutional violation here and,
presumably, also nothing wrong with the USAOs conduct over the past ten years
even if it was deliberate because a defense lawyerss document selection process
is allegedly not protected at all. Govt. Opp., pp. 23-28. Second, the government
argues that even if it might be, SA Lindseys conduct is not attributable to them
because the prosecutors themselves did not have actual knowledge of the intrusion.
The Court should reject both arguments.
-11-
a.
The court in United States v. Horn, 811 F. Supp. 739 (D. N.H. 1992), affd in
relevant part, revd in part on other grounds, 29 F.3d 754 (1st Cir. 1994), squarely
held that the document selection process is protected under a similar fact pattern a
federal prosecution team secretly keeping track of discovery documents chosen by the
defense for photocopying. See Horn , 811 F. Supp. at 747 (recognizing that the [t]he
high degree of selectivity resulting in a relatively small number of documents being
copied would convey defense counsels thought processes).10/
In apparently arguing that Horns threshold privilege holding was wrongly
decided, the only authorities cited by the government are civil cases which involve
documents provided by counsel to witnesses who used the documents to prepare for
their testimony and thus would not remain secret. See In re San Juan Dupont Plaza
Hotel Fire Litig., 859 F.2d 1007, 1017 (1st Cir. 1988) (... the challenged order does
not result in the evulgation of matters which would otherwise remain perpetually
hidden. When the deposition is held and examination commences, the questioners
10/
See also Sporck v. Peil, 759 F.2d 312, 315-317 (3d Cir. 1985) (selection process can create
opinion work product even though the documents themselves do not qualify for work product
protection); Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613, 616 (S.D.N.Y. 1977)
(notebooks representing counsels ordering of facts, referring to the prospective proofs,
organizing, aligning, and marshaling empirical data categorized as work product).
-12-
document selection, and the stratagems it reveals, will become obvious to all.
Requiring preidentification merely moves up the schedule, accelerating disclosures
which would inevitably take place.). See also Avant Garde Engg & Res. Ltd. v.
Nationwide Equip. Co., No. 11-cv-525-J-20TEM, 2013 U.S. LEXIS 69075, at **2324; 2013 WL 2106817, at *9 (M.D. Fla. May 15, 2014) (deposition witness); In re
Trasylol Products Liab. Litig., No. 08-MD-1928, 2009 U.S. Dist. LEXIS 46488, 2009
WL 936597 (S.D. Fla. Apr. 7, 2009) (Middlebrooks, J.) (important fact witness).11/
The line of cases relied upon by the government is wholly inapposite, because it
involves situations where counsel used the selection process to prepare witnesses who
could be subject to cross-examination about the bases for their testimony or opinions.
Courts simply do not permit a party to wield the work product privilege as both a
shield and a sword using it not only for internal preparation but to bar otherwise
proper cross-examination. See Hambarian v. Comm'r of Internal Rev., 118 T.C. 565,
570 (2002) (to be subject to work product protection, party must show both that the
disclosure might reveal the lawyers thoughts and the lawyer had [a] justifiable
expectation that such mental impressions revealed by the materials would remain
private )(emphasis added). See also Gould Inc. v. Mitsui Mining & Smelting Co., 825
11/
The only criminal case cited by the government was an unpublished opinion by the Second Circuit
involving a search warrant which was used to seize company records which included a handful of
documents concededly protected by the attorney client privilege. See United States v. Walker, 243
Fed. Appx. 621 (2d Cir. 2007).
-13-
F.2d 676, 680 (2d Cir. 1987). Indeed, that waiver principle has been codified in
various civil rules, including Fed. R. Evid. 612 (requiring a party to reveal any
writing if a witness uses a writing to refresh memory for the purposes of testifying
. . . .)12/ and Fed. R. Civ. P. 26(a)(2)(B)(requiring description of the information that
partys expert considered while preparing to testify).13/ In the instant case as well
as the many cases over the past decade when this practice was in place the
government obtained insights into defense counsels thought processes without
12/
See Chavis v. N.Carolina, 637 F.2d 213, 223-24 (4th Cir. 1980) (witness referred to work product
material and used it to bolster his credibility at trial. As a result, court ordered the material
produced). See also Lawson v. U.S. Dep't of Veterans Affairs, No. 97 Civ. 9239, 1998 WL 312239
(S.D.N.Y. June 12, 1998); In re Atl. Fin. Mgmt. Sec. Litig., 121 F.R.D. 141, 143-44 (D. Mass.
1988); James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144-46 (D. Del. 1982). Some courts
hedge and take a balancing approach in these situations. See, e.g., Sporck v. Peil, 759 F.2d 312, 318
(3d Cir. 1985); Bloch v. Smithkline Beckman Corp., No. Civ. A. 82-510, 1987 WL 9279 (E.D. Pa.
Apr. 9, 1987); Omaha Pub. Power Dist. v. Foster Wheeler Corp., 109 F.R.D. 615, 616-17 (D. Neb.
1986). For a thorough discussion of the competing rules and interests at stake in the civil witness
preparation context, see In re Xarelto (Rivaroxaban) Prods. Liab.Litig., MDL No. 2592, 2016 U.S.
Dist. LEXIS 47750 (E.D. La. Apr. 8, 2016).
13/
Most courts have concluded that Rule 26(a)(2)(B) requires the disclosure of all documents
reviewed by an expert witness while preparing to testify, including opinion work product. See, e.g.,
Ling Nan Zheng v. Liberty Apparel Co., Inc., No. 99 Civ. 9033 RCCHBP, 2004 WL 1746772, at *23 (S.D.N.Y. Aug. 3, 2004); S. Scrap Material Co. v. Fleming, No. Civ. 01-2554, 2003 WL
21474516, at *20 (E.D. La. June 18, 2003); Baum v. Village of Chittenango, 218 F.R.D. 36, 39-40
(N.D.N.Y. 2003); Mfg. Admin. and Mgmt. Sys., Inc. v. ICT Group, Inc., 212 F.R.D. 110, 115
(E.D.N.Y. 2002); Suskind v. Home Depot Corp., No. Civ. A. 99-10575, 2001 WL 92183 (D. Mass.
2001); Aniero Concrete Co. v. New York City Sch. Const. Auth., No. 94 Civ. 9111, 2002 WL
257685, at *2 (S.D.N.Y. Feb. 22, 2002); Musselman v. Phillips, 176 F.R.D. 194, 197 (D. Md. 1997);
Karn v. Ingersoll Rand, 168 F.R.D. 633, 635 (N.D. Ind. 1996); Furniture World, Inc. v. D.A.V. Thrift
Stores, 168 F.R.D. 61, 62 (D.N.M. 1996). Not all courts agree. See In re Cendant Corp. Sec. Litig.,
343 F.3d 658, 664-65 (3d Cir. 2003); Bogosian v. Gulf Oil Corp., 738 F.2d 587 (3d Cir. 1984);
Absolute United States v. 215.7 Acres of Land, 719 F. Supp. 273 (D. Del. 1989); Hamel v. Gen.
Motors Corp., 128 F.R.D. 281 (D. Kan. 1989).
-14-
regard to counsels purpose or intended use of the documents. Accordingly, the cases
cited by the government provide no shelter for its practice.
The government has also ignored the distinction between civil and criminal
cases. In civil cases, both sides have equal and extremely broad discovery rights. In
contrast, in criminal cases both sides work in far more secrecy. On the one hand,
defendants discovery rights are cabined by Fed. R. Crim. P. 16 and the Brady
doctrine. The trade off is that criminal defendants and their counsel have the
constitutional right to prepare defenses outside the prying eyes and ears of both
agents and prosecutors. The Sixth Amendment right to effective assistance of counsel
thus protects not only courtroom activities but preparation outside the courtroom. See
generally Ferri v. Ackerman, 444 U.S. 193, 204 (1979) (an indispensable element
of the effective performance of [defense counsels] responsibilities is the ability to act
independently of the Government and to oppose it in adversary litigation). Since
privacy is vital to effective representation, the government is forbidden from
eavesdropping or planting agents to hear or disrupt councils of the defense. See
generally United States v. Henry, 447 U.S. 264 (1980); Weatherford v. Bursey, 429
U.S. 545 (1977); Black v. United States, 385 U.S. 26 (1966); OBrien v. United
States, 386 U.S. 345 (1967); Hoffa v. United States, 385 U.S. 293, 306 (1966). As
one court succinctly put it, a defendant has the right to prepare in secret, seeing and
-15-
inviting those he deems loyal or those with whom he is willing to risk consultation
and, therefore, the governments intrusion offends both the Fifth and Sixth
Amendment. In re Terkeltoub, 256 F. Supp. 683, 685 (S.D.N.Y. 1966) (citations
omitted). See generally United States v. Nobles, 422 U.S. 225, 238 (1975) (in criminal
cases the role of the work product privilege in assuring the proper functioning of the
criminal justice system is even more vital than in civil cases. Therefore, the Court
should reject the governments claim that defense counsels document selection
process is fair game for surreptitious intrusions.
b.
(M.D. Fla. 2009) (finding a Brady violation where a police officer who was clearly
a key member of the prosecution team withheld evidence about his own
contemporaneous illegal involvement with local drug dealing and imput[ing] his
knowledge to the prosecution). The prosecution team for Brady purposes includes
anyone over whom the prosecutor has authority, Moon v. Head, 285 F.3d 1301,
1309 (11th Cir. 2002), and anyone acting on the government's behalf in the case.
United States v. Reyeros, 537 F.3d 270, 281 (3rd Cir. 2008) (citing Kyles). See also
United States v. Martinez, 621 F.2d 184, 187 (5th Cir. 1980) (information known by
an assistant medical examiner attributable to the State). Therefore, in a variety of
contexts, knowledge of information possessed by agents or others is vicariously
attributable to the prosecutors themselves.14/
14/
See, e.g., McCormick v. Parker, No. 14-7095, 2016 U.S. App. LEXIS7998, at *14 (10th
Cir. May 3, 2016) (imputing knowledge of nurse expert to prosecutors); United States v.
Thornton, 1 F.3d 149, 158 (3rd Cir. 1993) (charging prosecutors with constructive knowledge
of DEA payments to government witnesses because prosecutors have an obligation to make
a thorough inquiry of all enforcement agencies that have a potential connection with their
witnesses); United States v. Burnside, 824 F. Supp. 1215, 1252 (N.D. Ill. 1993) (holding
that even if none of the U.S. Attorneys personnel nor the federal agents nor the police
officers had been as aware of the undisclosed Brady material as they were, knowledge of the
information would still be attributed to the government since information possessed by
prison warden and jail personnel was readily available to the U.S. Attorneys Office for
the asking). See generally United States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995)
(holding that the prosecution had constructive possession of information known only to an
agency, the Bureau of Prisons, that was not part of the prosecution team, explaining [w]e
therefore reject the district courts finding that the government has possession and control
over the files of only those agencies that participated in the investigation.).
-17-
Similar principles apply to ethical rules. For example, under Rule 4-5.3(b) of
the Rules Regulating the Florida Bar, a lawyer having supervisory authority over nonlawyer assistants has a duty to make reasonable efforts to ensure that the nonlawyers conduct is compatible with the professional objections of the lawyer. Rule
4-5.3(c) similarly provides that lawyers must review and be responsible for the work
product of legal assistants. See also Rule 4-3.6(b) (in the publicity context, requiring
lawyers to prevent persons assisting in or associated with a case from making
extrajudicial statements that are prohibited under this rule).
2.
independent taint teams to handle the situation. For example, the court in United
States v. Pedersen, No. 3:12-cr-00431-HA, 2014 U.S. Dist. LEXIS 106227, at *88
(D. Ore. Aug. 4, 2014), scathingly criticized the government for creating a filter team
protocol which allowed the same AUSA to work on both the filter team and the
prosecution team. As the court explained:
The second serious problem with the filter team protocol was that it
allowed [the filter AUSA] to assist the prosecution team. The protocol
specifically tasked her with reviewing privileged materials and then
allowed her to assist [the prosecution team] with other legal research,
writing, and analysis, at the district court level and in any appeals. Ex.
12 at 3. Even under the best of circumstances, there is a risk that
privileged material may flow from the taint team to the prosecution.
Renzi, 722 F. Supp. 2d at 1112 (the government taint team may have an
interest in preserving privilege, but it also possesses a conflicting
interest in pursuing the investigation, and, human nature being what it
is, occasionally some taint-team attorneys will make mistakes or violate
their ethical obligations) (citation and quotation omitted). The provision
allowing [the filter AUSA] to serve in dual roles, which she in fact did, is
difficult to understand and anathema to the very purpose of a taint team.
Id. at * 94.15/
15/
In rejecting the taint team approach entirely, the Sixth Circuit in In re: Grand Jury Subpoenas,
454 F.3d 511 (6th Cir. 2006), ruled that the presumed good faith of prosecutors and agents was not
enough:
....[T]he government taint team may have an interest in preserving the
privilege, but it also possesses a conflicting interest in pursuing the
investigation, and, human nature being what it is, occasionally some
taint-team attorneys will make mistakes or violate their ethical
obligations.... [A]n obvious flaw in the taint team procedure ... [is
that] the governments fox is left in charge of the appellants
henhouse, and may err by neglect or malice, as well as by honest
(continued...)
-19-
In situations involving the seizure of privileged material, the United States Attorneys
Manual (USAM) expressly recommends that to ensure that the investigation is not
compromised by exposure to privileged material relating to the investigation or to defense
strategy, a privilege team should be designated, consisting of agents and lawyers not
involved in the underlying investigation. See USAM, Department of Justice, 913.000(E). See also United States Department of Justice, Searching and Seizing
Computers and Obtaining Electronic Evidence in Criminal Investigations, ch. 2(F)(2)(b)
(3d ed. 2009), at pp. 110-11 (requiring implementation of a taint procedure independent
of the prosecution team); In re Investigation of Bay Ingram, 915 F. Supp. 2d 761, 763
(E.D. La. 2012) (granting governments motion to order the use of an independent filter
team to avoid any disqualification of the agents and prosecutors pursing the criminal
investigation...) (quoting governments motion).
By choos[ing] to take matters into it own hands, the prosecutors should now
have the burden of proving that they did not learn and use any privileged material. United
States v. SDI Future Health, Inc., 464 F. Supp. 2d 1027, 1040 (D. Nev. 2006), quoting
United States v. Neill, 952 F. Supp. 834, 841 (D.D.C.1997) (placing burden on prosecutors
to rebut the presumption that tainted material was provided to the prosecution team).
15/
(...continued)
differences of opinion.
-20-
b.
The prosecution team chose to entrust the document production process entirely to
an FBI agent and a third party vendor. Based on the USAOs prior experience with the
vendor, they knew or should have known that the vendor was routinely sending the Office
sets of everything defense counsel chose to copy. Yet, neither the USAO in general (over
a decade) or the prosecutors in this case took any steps to shield them from privileged
material. Nor did they assign any lawyer in the office to supervise the agent or vendor.
This pattern of willful blindness alone justifies disqualification. See Arnold v. Cargill Inc.,
No. 01-2086 (DWF/AJB), 2004 U.S. Dist. LEXIS 19381, at *25 (D. Minn. Sept. 24, 2004)
(disqualifying law firm, in part, for leaving it up to a witness not trained in the law and
therefore not in a position to determine what ... information [about his former employer]
was discloseable and what was not discloseable without the assistance of counsel);
Richards, 168 F. Supp. 2d at 1202-03 (granting disqualification because, although [a]
failure to properly supervise paralegals and other staff members would certainly not create
a per se rule of disqualification ... under the circumstances presented here ... failure to take
any reasonable measures to protect the attorney-client privilege through proper supervision
of a paralegal creates an appearance of impropriety).
-21-
3.
The USAO has been on actual or constructive notice for years that Mr. Montero has
been providing them with potentially privileged information. And, SA Lindsey knew or
should have known that she was the recipient of privileged material upon her receipt of the
first disc some 16 months ago. Under Rule 4-4.4(b) of the Rules Regulating the Florida
Bar, [a] lawyer who receives a document or electronically stored information relating to
the representation of the lawyers client and knows or reasonably should know that the
document or electronically stored information was inadvertently sent must promptly notify
the sender.16/ Whatever the source of the duty, courts have made clear that [a]n attorney
who receives privileged documents has an ethical duty to cease review of the documents,
16/
-22-
notify the privilege holder, and return the documents. Arnold, 2004 U.S. Dist. LEXIS
19381, at *30. Accord Maldonado, 225 F.R.D. at 139-40; Richards, 168 F. Supp. 2d at
1200-01. Cf. United States v. Taylor, 764 F. Supp. 2d 230, 235 (D. Me. 2011) (I conclude
that the government behaved reasonably here by immediately seeking judicial instructions
once its agent noticed that e-mail headers reflected communications between lawyer and
client).
The USAO knew that the vendor that it was requiring all defense counsel to use was
providing the Office whether unilaterallyor at someones direction with potentially
privileged material on a routine basis. SA Lindsey knew she received such material as
early as December 2014 but did nothing. To our knowledge, no defense lawyer in this
district was ever made aware of this practice until it was exposed in this case. The fact
that the prosecutors told counsel about it, only after-the-fact, in April 2016 does not,
contrary to the government, inure to its benefit under these circumstances. Had defense
counsel not questioned Mr. Montero about his activities, it is unlikely that the prosecutors
would have ever notified them. These facts strongly support disqualification. See Horn,
811 F. Supp. at 748 (disqualifying prosecutor, pointing out that [h]aving been placed on
notice of the existing problem, the lead prosecutor had the opportunity, the authority, and
the duty to maintain the status quo by sealing the documents pending judicial review,
thereby avoiding any prejudice to the defendants, until the court had ruled on the matter);
-23-
Maldonado, 225 F.R.D. at 139-140 (Plaintiffs failure to notify defense counsel and did not
admit to having the materials until it was discovered by Defendants ... weights heavily in
favor of disqualification); Richards, 168 F. Supp. 2d at 1206 (Plaintiffs failure to
explicitly notify Defendants of the disclosure of privileged information weighs in favor of
disqualification and noting that [t]he Court would be faced with a different case if the
attorney had stopped all work and sealed or destroyed the documents).
Moreover, the lengthy time period in which the prosecution team had improper
possession of privileged materials some 16 months adds further weight to the
disqualification remedy. Compare Arnold, 2004 U.S. Dist. LEXIS 19381, at *31-33 (law
firm blatantly risked creating the appearance of impropriety by conducting its own
privilege review and keeping documents for 18 months conduct which [a]t a minimum
... recklessly disregarded the risks associated with playing fast and loose with the rules
protecting against disclosure of privileged and confidential material); Richards, 168 F.
Supp. 2d at 1200, 1209 ([I]t is apparent that eleven months of access to privileged
materials creates an appearance of impropriety and so taints the proceedings that the harsh
remedy of disqualification is justified.), with Merits Incentives, LLC v. Eighth Jud. Dist.
Ct., 262 P.3d 720, 725-26 (Nev. 2011) (denying disqualification because attorney promptly
notified opposing counsel after receiving its documents on disk from an anonymous
source); Neill, 952 F Supp. at 841 (denying motion to dismiss, in part, because agent acted
-24-
responsibly by sealing the materials without reading them and then delivered them to a
taint team for review).
4.
This factor cannot be addressed in a public filing but will be addressed at the
scheduled hearing. We only point out here that the court in Richards found that the extent
of review factor weighed in favor of disqualification even though the paralegal who
reviewed privileged documents only viewed them on a computer screen and never printed
them out. See Richards, 168 F. Supp. 2d at 1207. The prosecution team appears to have
done far more than that. Lewis v. Capital One Services, Inc., 2004 U.S. Dist. LEXIS 26978
(E.D. Va. 2004) (plaintiffs counsel disqualified where the actual viewing of at least one
privileged document was established); In Re Mktg. Inv. Corp., 80 S.W.3d 44, 50-52 (Tex.
App. 1998) (because the former employees lawyer had reviewed the documents and
referenced them in new pleadings, the trial court abused its discretion in not
disqualifying [him].). Cf. Renzi, 722 F. Supp. 2d at 1116 (suppressing but declining to
disqualify the prosecutor for not promptly disclosing privileged emails inadvertently
discovered since the privileged communications were not accessed by the prosecution
team). Moreover, by any measure, the extent of the potential violation is enormous, a fact
that in and of itself weighs in favor of disqualification. See Richards, 168 F. Supp. 2d at
1207-08 (the sheer extent of the privileged material accessed, approximately 1,000
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privileged documents that were read, at least briefly, weighs factor in favor of
disqualification).
5.
The government bases much of its Opposition on the claim that defense counsel
invited the privilege intrusion because they allegedly knew that SA Lindsay was going to
personally see the documents set aside and replace them in the boxes after the
photocopying. That simply is not so. As will become clear at the hearing, the set aside
documents were placed in a box for delivery to Mr. Montero and counsel had no reason
to believe anyone associated with the prosecution team was going to be allowed to see
them upon their return to the FBIs facility for refiling. Moreover, the procedure itself has
been dictated by the government for over a decade. If that process creates a waiver then
all the judges in this District should expect: (1) defense counsel to refuse to allow any
government involvement in handling discovery; or (2) defense counsel including the
Federal Defenders Office and appointed CJA counsel to order the reproduction of all
the discovery in every case. Of course, the latter would mean that the Court itself will then
have to bear the cost for indigent defendants.
6.
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about this practice for a decade. See Richards, 168 F. Supp. 2d at 1208 (Plaintiffs are
directly responsible for the breach of privilege, and thus, the deprivation of counsel of
choice does not weigh heavily against disqualification).
C.
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5) The defense has been prejudiced both by the sheer volume of material and
by the intrusion over a long time period, giving the prosecution team many
months to use the knowledge gained in ways that could probably never be
discovered.
6) The defense cannot seriously be faulted. The USAO set up this procedure,
required all defense counsel to use it, but never set up safeguards or notified
anyone when it learned of Mr. Monteros conduct years ago.
7) Any prejudice to the government from disqualification is of its own
making.
It is beyond dispute that SA Lindsey has seen and had the opportunity to review
privileged material for months. If the selection process is privileged, as the defense
maintains, there is no sanction short of disqualification that can undue the damage that has
been done. There is no way the memories of the subtle hints about what the defense learned
over such a long period of time could be excised from the memories of the prosecution
team (despite SA Lindseys self-serving assertions otherwise). See Richards, 168 F. Supp.
2d at 1209 (even if the Plaintiffs counsel returned the privileged materials, it would not
remove the taint on the proceedings because disclosure of privileged information cannot
be undone.). As the court in Arnold v. Cargill concluded under analogous circumstances
(albeit in a civil setting):
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By:
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CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing was electronically filed by
CM/ECF on June 7, 2016.
/s/ Howard Srebnick
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