United States v. Satary, CRIMINAL ACTION NO. 19-197

• Decision Date: 02 December 2020
• Docket Number: CRIMINAL ACTION NO. 19-197
• Citation: 504 F.Supp.3d 544
• Parties: UNITED STATES of America v. Khalid Ahmed SATARY
• Court: U.S. District Court — Eastern District of Louisiana

504 F.Supp.3d 544

UNITED STATES of America

v.Khalid Ahmed SATARY

CRIMINAL ACTION NO. 19-197

United States District Court, E.D. Louisiana.

Signed December 2, 2020

ORDER

SECTION D (4)

WENDY B. VITTER, UNITED STATES DISTRICT JUDGE

Before the Court is the Government's Motion for a Discovery Protocol.¹ The Motion is opposed,² and the Government filed a Reply.³ This Court referred the matter to Chief Magistrate Judge Roby.⁴ The Magistrate Judge issued a Report and Recommendation in which she recommended the Court adopt the Government's proposed protocol.⁵ Defendant filed Objections to the Report and Recommendation,⁶ and the Government filed a Response to the Objections.⁷ After careful consideration of Report and Recommendation, the parties’ memoranda, the record, and the applicable law, the Court overrules Defendant's Objections, approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its opinion, and enters the Government's Proposed Discovery Protocol.

For judicial efficiency, the Court adopts here the Factual Background as outlined in the background section of the Report and Recommendation.⁸ Summarized briefly, the Government executed a search warrants of various offices, including those at Lazarus Services, LLC in New Orleans and various properties in Lawrenceville, Georgia. The Government uses a filter team to review all material taken from these searches. Various persons, including cooperating witnesses who have pleaded guilty and certain defendants in a related case, may have certain privileges over the material. The filter team therefore segregates "Potentially Protected Material" which may be subject to a third-party privilege claim before producing such material to the Prosecution Team or Defendant. The Government's Filter team seeks entry of a Discovery Protocol that would allow it to disclose discovery that has been or could be subject to claim of privilege, which would allow it to notify and resolve third-party claimant's privilege claims prior to producing their Potentially Protected Material. Defendant objects to the entry of the proposed Discovery Protocol, as he contends it lacks sufficient protections to protect his privilege claims over the material at issue.

Defendant makes two primary arguments for why the Report and Recommendation should be rejected. First, he argues that the Magistrate Judge committed factual error because she did not appreciate that some of material at issue includes material over which he may assert a privilege, including his email account and communications with Victoria Nemerson. Second, he argues that the Magistrate Judge committed legal error because she found he lacked standing to assert broad privilege claims over materials taken from third-party businesses under the common interest or joint defense doctrines. The Court reviews the Magistrate Judge's legal conclusions de novo , and reviews the Magistrate Judge's factual findings for clear error.⁹

Defendant first contends that the Magistrate Judge committed factual error by failing to appreciate that he has standing to assert a privilege over some of the potentially privileged materials because it comes from his personal email account or are communications with his attorney, Victoria Nemerson. This argument lacks merit. The Magistrate Judge specifically noted that "[t]he government states, and defendant does not dispute, that the contents of his personal email account have been produced to him for his review."¹⁰ And the Government has represented that "[i]n April 2020, the Filter Team produced all the material over which Defendant had standing to assert a privilege (i.e. his email account) or could access by virtue of a joint defense agreement (i.e. documents from third party businesses). This material was produced in full and contained both potentially privileged, including communications with Victoria Nemerson, Esq., and non-potentially privileged items."¹¹ The Government has further represented that

As of October 2, 2020, the Filter Team as produced to Defendant: all material over which he has a standing to assert a privilege (i.e., his email account and items seized from third-party businesses that may contain communications with his personal attorney); the material he is authorized to review pursuant to a JDA (i.e. the material seized from the third-party businesses, including material from Nemerson's office); the search terms used by the Filter Team to identify and segregate Potentially Privileged Material from the Prosecution Team; the items the Filter Team identified as Potentially Privileged Material contained in Defendant's email account and from material seized from the third-party businesses; and the items the Filter Team identified as non-Potentially Privileged Material contained in Defendant's email account and from the material seized from the third-party business.¹²

The Magistrate Judge therefore did not fail to appreciate that some of the seized material could be subject to a privilege claim by Satary, but rather did not find this an appropriate reason to forgo entering the proposed Discovery Protocol because the Government has already produced this material to Satary, mooting his objection.

Satary further argues that the Magistrate Judge's order allowing Satary to review information the Filter Team has designated as non-privileged¹³ is in tension with the Report and Recommendation before the Court. The Court does not see such a conflict. In the Order allowing Satary to review information the Filter team has designated as non-privileged, the Magistrate Judge gave Satary permission to review items "seized from Defendant's Gmail account, from the Defendant's personal attorneys office, and any personal date seized from the Defendant's electronic devices that were seized from his business that the Filter Team identified as Non-Potentially Protected Material."¹⁴ That order, as the Court reads it, was designed to allow Satary to review the filter team's privilege calls over material that he would have standing to assert privilege. The Report and Recommendation, on the other hand, deals with Satary's Objections to the production of third-party potentially privileged materials over which the Magistrate Judge found he does not have standing to assert a privilege claim. No tension or conflict therefore exists.

Defendant also argues that the Magistrate Judge committed legal error by finding he did not have standing to assert privilege over the materials at issue as he can assert common interest or joint defense privilege. But, again, the Government represents that it has provided to Defendant "the material he is authorized to review pursuant to a Joint Defense Agreement (i.e., the material seized from the third-party businesses, including material from Nemerson's office)."¹⁵ This, coupled with the other material already produced to Defendant discussed above (including his email account) should account for any Potentially Protected Material over which Defendant could assert a claim of privilege.

In short, Defendant's objections have been mooted as the Government produced to Defendant all material over which he may assert a privilege. As such, the Court overrules Defendant's Objections and adopts the Magistrate Judge's Report and Recommendation.

IT IS HEREBY ORDERED that the Government's Motion for Discovery Protocol Governing Disclosure of Material Subject to Claims of Privilege is GRANTED . The Discovery Protocol shall be entered contemporaneously with this Order.

ORDER

Having considered the United States’ motion requesting authorization and entry of a protocol to govern the disclosure of discovery material that have been or are potentially subject to claims of privilege by Defendant and third-parties and to extend time to produce discovery pursuant to protocol, and for good cause shown,

IT IS HEREBY ORDERED THAT :

1. The United States’ motion is GRANTED , and the protocol set forth in Paragraphs 2-9, below (hereafter "Protocol"), shall govern the review and disclosure of discovery material that have been or are potentially subject to claims of privilege (hereafter "Potentially Protected Material") by Defendant and third parties in this case.

2. The Protective Order issued on December 21, 2019 (ECF No. 41) shall apply to any discovery material produced by the filter team established by the United States in this case (hereafter "Filter Team") to Defendant or a third-party pursuant to the Protocol.

3. The Filter Team shall withhold Potentially Protected Material, unless a court order or a third-party claimant authorizes the release of Potentially Protected Material to the Prosecution Team.

4. The Filter Team shall release discovery material that is not Potentially Protected Material for production to the Prosecution Team and Defendant.

5. The Filter Team shall produce Potentially Protected Material to Defendant under the following conditions:

a. If Defendant is the privilege holder or is entitled to access the discovery material by virtue of a Joint Defense Agreement (JDA), Defendant shall receive a full copy of the discovery material in the same format as it was provided to the Filter Team. The discovery material shall be subject to the Protective Order in this case, as well as the Protocol, and may not be further disclosed or disseminated except as provided in this Order.

b. If Defendant is not the privilege holder of the discovery material or is not entitled to access the material by virtue of a JDA, before producing any of a third-party claimant's Potentially Protected Material to Defendant, the Filter Team shall notify the third-party claimant that their Potentially Protected Material will be produced as part of the discovery to Defendant, unless such notice would jeopardize an ongoing investigation. In that case, the Filter Team shall seek authorization from the Court as to how to release the Potentially Protected Material at issue to Defendant.

i. Contents of Notice. The notice shall

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