U.S. v. Clarkin
U.S. v. Clarkin
2021 WL 6061920 (D.N.J. 2021)
November 8, 2021
Shipp, Michael A., United States District Judge
Summary
The Court Order granted the Government's Unopposed Motion for Entry of a Discovery Protocol Governing the Disclosure of Potentially Protected Materials, including ESI. The Protocol outlined procedures for the release of ESI to the Prosecution Team and Defendant(s) when a Defendant is the potential privilege holder or is entitled to access the ESI through a joint-defense/common-interest agreement, as well as procedures for the release of ESI to the Prosecution Team and Defendant(s) when a third-party claimant is the potential privilege holder. The Protocol also outlined procedures for the Court to adjudicate any privilege claims asserted over ESI produced pursuant to the Protocol.
UNITED STATES OF AMERICA
v.
DONALD CLARKIN
v.
DONALD CLARKIN
Criminal No. 3:21-cr-438
United States District Court, D. New Jersey
Filed November 08, 2021
Counsel
Rebecca Ruth Yuan, Assistant US Attorney, U.S. Department of Justice, Newark, NJ, for United States of America.Shipp, Michael A., United States District Judge
PROTOCOL
*1 Under Federal Rule of Criminal Procedure 16, the Court GRANTS the Government's Unopposed Motion for Entry of a Discovery Protocol Governing the Disclosure of Potentially Protected Materials.
IT IS ORDERED that this Discovery Protocol Order (the “Protocol”) shall govern the disclosure of Potentially Protected Material[1] in this case:
1. This Court's November 8, 2021, Protective Order shall also apply to any Potentially Protected Material the Government's Filter Team exchanges pursuant to this Protocol.
2. The Government's Filter Team shall segregate Potentially Protected Material from the Prosecution Team and Defendant(s) unless the privilege holder or a court order authorizes the release of the Potentially Protected Material to the specific recipient.
3. The Filter Team shall release discovery material that is not Potentially Protected Material to the Prosecution Team for production to the Defendant(s).
4. If a Defendant is the potential privilege holder or is entitled to access the Potentially Protected Material through a joint-defense/common-interest agreement (“JDA”), the Filter Team shall produce a full copy of the discovery materials (including the Potentially Protected Material) to the Defendant.
5. If a Defendant is the potential privilege holder of the Potentially Protected Material, the Filter Team shall notify that Defendant before releasing any of the Defendant's Potentially Protected Material to the Prosecution Team or a Co-Defendant who is not entitled to access by virtue of a JDA, under the following conditions:
a. Notice: The written notice to the Defendant potential privilege holder shall include:
i. An electronic index identifying the Potentially Protected Material scheduled for release; and
ii. A copy of this Protocol Order.
b. Objections to Production or Asserting Privilege Claims: If the Defendant potential privilege holder objects to the Filter Team's production of certain items to Co-Defendant(s) or the Prosecution Team, the Defendant privilege holder must send a written objection to the Filter Team and counsel for Co-Defendant(s) within thirty (30) days[2] of receiving the notice of scheduled release. The objection shall include a privilege log setting forth for each item logged:
i. The Bates number range for the document;
ii. The document title or a description of the document's subject matter;
iii. The date the document was created;
iv. The author(s) of the document, including the capacity in which they authored the document and their location;
v. The recipient(s) of the document, if any, including the capacity in which they received the document and their location;
vi. Transmittal details of the document, if any;
vii. The privilege holder(s) asserting the claim; and
viii. The privilege(s) and/or protection(s) asserted that preclude production of each document logged (e.g., attorney-client privilege, work product doctrine protection, or other legally recognized privilege or protection).
*2 c. Non-Logged Potentially Protected Material: The Filter Team will release to the Prosecution Team and Co-Defendant(s) the Potentially Privileged Material that the Defendant privilege holder does not include on the privilege log without the need for the Court's approval.
d. Failure to Object or Assert: If the Defendant privilege holder fails to adequately object within thirty (30) days of the Filter Team's notice of scheduled release, the Filter Team will provide the Prosecution Team and Co-Defendant(s) with information regarding the Filter Team's attempts to contact the Defendant potential privilege holder and the subsequent failure to respond. Thereafter, the Government or Co-Defendant(s) may forego Subparagraphs (f)–(i) below and move the Court for a finding that the Defendant privilege holder has waived any protections over the Potentially Protected Material identified in the notice of scheduled release.
e. Failure to Provide a Privilege Log: If a Defendant potential privilege holder fails to timely (i) provide to the Filter Team and Co-Defendant(s) a privilege log that complies with Subparagraph (b) above, or (ii) meet and confer in accordance with Subparagraph (f) below, the Court may determine that such inactions constitute waiver of any protections over the Potentially Protected Material.
f. Meet and Confer Requirement: After the Filter Team receives an objection and required privilege log from the Defendant potential privilege holder, the Parties shall have seven (7) business days to meet and confer to try to resolve any disagreements concerning the objection.[3] The Filter Team shall provide all parties with notice of the date and time of the meet and confer, which any party may participate in through counsel. If the Parties cannot resolve their disagreement, the Filter Team or Co-Defendant(s) shall notify the Defendant potential privilege holder in writing that the Parties do not agree.
g. Motion to Compel: The Filter Team or Co-Defendant(s) shall have seven (7) business days from the date of the meet and confer to move to compel production of the Potentially Protected Material. The moving party shall include with its Motion a copy of the Defendant potential privilege holder's privilege log and a memorandum containing any factual or legal arguments. Upon the Court's request, the party asserting the privilege shall provide a copy of the disputed Potentially Protected Material to the Court ex parte and under seal for in camera review.
h. Response: The Defendant potential privilege holder shall file a response within seven (7) business days of the filing of a motion to compel under this Protocol.
i. Reply: A party moving to compel under this Protocol shall file a reply within five (5) business days of the Defendant potential privilege holder's response.
j. Unchallenged Privilege Claim(s): If an item produced in discovery to Defendant(s) or the Prosecution Team is later subject to a privilege claim by any party, and that claim is not challenged or is later upheld by the Court, the Filter Team or the Court may clawback the item(s) and/or direct the Defendant(s) to destroy such item(s).
*3 6. If a Defendant is not the potential privilege holder of the discovery material and is not entitled to access the material through a JDA, before producing any of a third-party claimant's Potentially Protected Material to the Prosecution Team and/or Defendant(s), the Filter Team shall notify the third-party claimant that their Potentially Protected Material will be produced as part of the discovery to Defendant(s) and/or released to the Prosecution Team, unless such notice would jeopardize an ongoing investigation. In that circumstance, the Filter Team shall seek authorization from the Court as to how to release the Potentially Protected Material at issue to Defendant(s) and/or the Prosecution Team. Absent the potential to jeopardize an ongoing investigation, the following procedure will apply to releasing a third-party claimant's Potentially Protected Material to Defendant(s) and/or the Prosecution Team:
a. Notice: The written notice to the third-party potential privilege holder shall include:
i. The criminal case number of this proceeding;
ii. An electronic index identifying the Potentially Protected Material scheduled for release;
iii. An electronic copy of the Potentially Protected Material scheduled for production;
iv. A copy of the Protective Order in this case; and
v. A copy of this Protocol Order.
b. Objections to Production or Asserting Privilege Claims: If the third-party potential privilege holder objects to the Filter Team's production of certain items to Defendant(s) or the Prosecution Team, the third-party claimant must send a written objection to the Filter Team and counsel for Defendant(s) within thirty (30) days of receiving the notice of scheduled release. The objection shall include a privilege log setting forth for each item logged:
i. The Bates number range for the document;
ii. The document title or a description of the document's subject matter;
iii. The date the document was created;
iv. The author(s) of the document, including the capacity in which they authored the document and their location;
v. The recipient(s) of the document, if any, including the capacity in which they received the document and their location;
vi. Transmittal details of the document, if any;
vii. The privilege holder(s) asserting the claim; and
viii. The privilege(s) and protection(s) asserted that preclude production of each document logged (e.g., attorney-client privilege, work product doctrine protection, or other legally recognized privilege or protection).
c. Non-Logged Potentially Protected Material: The Filter Team will release to the Prosecution Team and Defendant(s) the Potentially Protected Material that the third-party claimant does not include on the privilege log without the need for the Court's approval.
d. Failure to Object or Assert: If the third-party privilege holder fails to adequately object within thirty (30) days of the Filter Team's notice of scheduled release, the Filter Team will provide the Prosecution Team and Defendant(s) with information regarding the Filter Team's attempts to contact the third-party claimant and the subsequent failure to respond. Thereafter, the Government or Defendant(s) may forego Subparagraphs (f)–(i) below and move the Court for a finding that the third-party claimant has waived any protections over the Potentially Protected Material identified in the notice of scheduled release.
e. Failure to Provide a Privilege Log: If a third-party potential privilege holder fails to timely (i) provide to the Filter Team and Defendant(s) a privilege log that complies with Subparagraph (b) above, or (ii) meet and confer in accordance with Subparagraph (f) below, the Court may determine that such inactions constitute waiver of any protections over the Potentially Protected Material.
f. Meet and Confer Requirement: After the Filter Team receives an objection and required privilege log from a third-party potential privilege holder, the Parties shall have seven (7) business days to meet and confer with the third-party claimant to try to resolve any disagreements concerning the production objection and/or privilege assertion. The Filter Team shall provide Defendant(s) with notice of the date and time of the meet and confer, which any Defendant may participate in through counsel. If the Parties cannot resolve their disagreement with the third-party claimant, the Filter Team or Defendant(s) shall notify the third-party claimant in writing that the Parties do not agree.
*4 g. Motion to Compel: The Filter Team or Defendant(s) shall have seven (7) business days from the date of the meet and confer to move to compel production of the Potentially Protected Material. The moving party shall include with its Motion a copy of the third-party claimant's privilege log and a memorandum containing any factual or legal arguments. The moving party must also serve a copy of the Motion and attachments on the third-party claimant. Upon the Court's request, the third-party claimant asserting the privilege shall provide a copy of the disputed Potentially Protected Material to the Court ex parte and under seal for in camera review.
h. Response: The third-party potential privilege holder shall file a response within seven (7) business days of the filing of a motion to compel under this Protocol.
i. Reply: A party moving to compel under this Protocol shall file a reply within five (5) business days of the third-party potential privilege holder's response.
j. Unchallenged Privilege Claim(s): If an item produced in discovery to Defendant(s) or the Prosecution Team is later subject to a privilege claim by any party, and that claim is not challenged or is later upheld by the Court, the Filter Team or the Court may clawback the item(s) or direct the Defendant(s) to destroy such item(s).
7. The Court retains jurisdiction to resolve any dispute or adjudicate any privilege claim asserted over discovery material produced pursuant to the Protocol, including if, and under what circumstances, a party may use the Potentially Protected Material at trial.
8. Pursuant to Federal Rule of Evidence 502(d), any Potentially Protected Material disclosed to the Prosecution Team, Defendant(s), or a third party under this Protocol (or subsequent disclosure order in this proceeding) shall not constitute a waiver or forfeiture of any privilege claim in any other federal or state judicial or administrative proceeding.
9. All parties have the right to present to the Court any Potentially Protected Material to adjudicate whether the materials are indeed protected and/or if an exception to a protection applies, including, but not limited to, the crime-fraud exception or waiver. Under Federal Rule of Evidence 502(d), a disclosure to determine whether materials are protected pursuant to this Paragraph shall not itself constitute a waiver or forfeiture of any privilege claim.
10. If any member of the Prosecution Team inadvertently reviews Potentially Protected Material, the Prosecution Team member shall immediately cease review of the Potentially Protected Material and turn the Potentially Protected Material over to the Filter Team for processing in accordance with this Protocol. Inadvertent review of Potentially Protected Material shall not automatically disqualify a Prosecution Team member from this matter.
11. The Parties and third parties may extend the deadlines in this Protocol by written agreement or by requesting the same from the Court upon good cause shown.
12. The Government's Filter Team shall provide a copy of this Protocol Order to all known potential third-party claimants within five (5) business days of the entry of the Order. If the Filter Team later identifies potential third-party claimants not previously notified under this Paragraph, the Filter Team shall provide notice to the potential third-party claimants per Paragraph 6 (six) above.
SO ORDERED.
Footnotes
“Potentially Protected Material” is discovery material that is potentially protected from disclosure by the attorney-client privilege, work-product doctrine, or any other legally recognized privilege or protection.
Unless otherwise noted, dates and times in this Order shall be computed according to Federal Rule of Criminal Procedure 45.
“Business days” are weekdays, excluding Saturday, Sunday, and legal holidays.