1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.: 1:20-MJ-03278-JJO-1

In Re: Sealed Search Warrant and 

Application for a Warrant 

_______________________________/

TIME-SENSITIVE MOTION OF OPTIMA FAMILY COMPANIES, 

MORDECHAI KORF, URIEL LABER, AND CHAIM SHOCHET TO 

PROHIBIT LAW ENFORCEMENT REVIEW OF SEIZED MATERIALS 

UNTIL AN APPROPRIATE PROCEDURE FOR REVIEW 

OF PRIVILEGED ITEMS IS ESTABLISHED

This time-sensitive motion challenges the government’s use of a “filter team” 

– consisting of federal prosecutors and federal law enforcement agents – as part of a 

search warrant protocol to review seized materials for privilege before the seized 

materials are released to the prosecution team. 

On Tuesday, August 4, 2020, federal agents executed a search warrant at the 

Miami and Cleveland offices of various corporate entities, (including entities 

identified as the “Optima Family Companies” at Attachment B.3 to the warrant),

affiliated with several Ukrainian nationals, including Ihor Kolomoisky and 

Gennadiy Boholiubov, as well as American citizens Mordechai Korf, Uriel Laber, 

and Chaim Shochet, (the “Movants”).

1 For approximately twelve years, at least four 

attorneys and three paralegals worked “in-house” out of the Miami office and 

provided legal services to many of the so-called Optima Family Companies and 

individuals. The agents seized, among other things, legal memo pads, physical 

documents and computers containing information protected by the attorney-client 

1 The Movants include all such companies listed in Attachment B.3 to the search warrant with the 

exception of Optima Specialty Steel, Kentucky Electric Steel, Corey Steel Company, Michigan 

Seamless Tube, LLC, Georgian Manganese, LLC, Vartisikhe 2005, LLC, Optima Harvard Facility 

LLC and Optima Stemmons, LLC. 

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and work-product privileges. In that respect, the search was the functional 

equivalent of a law office search. 

These so-called Optima Family Companies and individuals respectfully 

object to any review by law enforcement of privileged materials. Accordingly, the 

Optima Family Companies and individuals respectfully request that the Court tailor

the protocol for segregating privileged documents – i.e., modify the procedure set 

forth in the warrant – to preclude such review. Specifically, federal law enforcement 

should be precluded from rummaging through what could be years’ worth of 

privileged documents and communications with in-house (and outside) counsel, and

the rights at issue should be protected and preserved by way of an appropriately 

structured protocol to segregate privileged documents. 

FACTUAL BACKGROUND

On July 31, 2020, the government applied for and this Court issued a search 

warrant to seize items from the offices of the so-called Optima Family Companies 

located at 200 S. Biscayne Boulevard, Suite 5500, Miami, Florida, 33131. See Ex. 1

(Jul. 31, 2020, Warrant Application). 

The warrant contains a section entitled “Filter for Privileged Materials,” 

which provides as follows:

Filter for Privileged Materials: If the government identifies seized 

communications to/from an attorney, the investigative team will 

discontinue review until a filter team of government attorneys and 

agents is established. The filter team will have no previous or future 

involvement in the investigation of this matter. The filter team will 

review all seized communications and segregate communications 

to/from attorneys, which may or may not be subject to attorney-client 

privilege. At no time will the filter team advise the investigative team 

of the substance of any of the communications to/from attorneys. The 

filter team then will provide all communications that do not involve an 

attorney to the investigative team and the investigative team may 

resume its review. If the filter team decides that any of the 

communications to/from attorneys are not actually privileged (e.g., the 

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communication includes a third party or the crime-fraud exception 

applies), the filter team must obtain a court order before providing these 

attorney communications to the investigative team.

Id. at B.2, ¶ 3.

The protocol permits a “filter team” of law enforcement attorneys and agents

to review all of the seized documents, unilaterally determine whether a particular 

document even implicates the attorney-client or work-product privilege, release to 

the investigative team (without court intervention) those documents that the filter 

team unilaterally determines do not implicate a privilege, and then seek a court order 

before any potentially privileged documents are provided to the investigative team. 

Such a protocol ensures law enforcement review of privileged materials and fails to 

adequately protect these sacred privileges.

The protocol also only allows for judicial review if a communication is clearly 

sent “to/from attorneys.” This limited exception for judicial review is inadequate, 

because: (1) the substance of the privileged information is initially exposed to filterprosecutors prior to judicial review; and (2) the scope of the documents subject to 

judicial review is underinclusive. More specifically, the scope of the documents 

subject to judicial review is underinclusive because the protocol: (1) does not 

account for the existence of documents subject to the work product doctrine, 

including compilations of documents prepared by attorneys in anticipation of 

litigation; and (2) does not account for the existence of communications between 

non-lawyers reasonably necessary for the transmission of attorney-client 

communication. Rule 26(b)(3)(A) of the Federal Rules of Evidence makes it 

abundantly clear, with respect to the work product doctrine, that “[o]rdinarily, a 

party may not discover documents and tangible things that are prepared in 

anticipation of litigation or for trial by or for another party or its representative 

(including the other party's attorney, consultant, surety, indemnitor, insurer, or 

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agent).” The search warrant’s filter process also assumes that filter-prosecutors are 

able to identify all persons who are attorneys. The government may be planning to 

search using “keywords” for lawyer names and to produce the remainder of the 

documents that do not hit on the “keywords,” without reviewing them for privilege. 

If the government does not review all of the documents produced to the investigative 

team, there is a clear risk that privileged documents, including work product, will be 

produced. Ultimately, only the privilege holders are in a position to accurately 

identify their privileged materials, not filter-prosecutors who necessarily have 

incomplete information and are very likely to produce privileged documents, 

including work product, to investigating-prosecutors.

On August 4, 2020, the government executed the warrant. During the search, 

law enforcement seized documents and equipment, including internal servers

containing electronic documents and correspondence. 

At various times over the past twelve years, four in-house lawyers worked for

the relevant Optima Family Companies at this office. See generally Declaration of 

Daniela Rost (“Rost Dec.”). For example, attorneys Daniela Rost, Robert Powell, 

Thad Florence, and Julia Kim performed legal work for various Optima Family 

Companies and individuals, including Korf, Laber and Shochet. See id. at ¶¶ 2-7. 

Throughout the years, the office also employed paralegals. See id. at ¶ 8. Mr. Powell, 

Mr. Florence and Ms. Kim are no longer affiliated with these entities, but Ms. Rost 

was present in her private office on the date of the search. See id. at ¶ 9. Ms. Rost

verbally informed the agents that day, and again in writing the following day, that 

the government had seized documents from her office and from the open space 

outside her office that were protected from disclosure by the attorney-client and/or 

work product privileges. See id. Moreover, the electronic data that was seized also 

contains privileged communications involving the relevant Optima Family 

Companies as well as the individuals. See id. at ¶¶ 9-12.

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The threat of the government’s review of privileged documents is particularly 

acute because on May 21, 2019, PrivatBank initiated a lawsuit in the Court of 

Chancery of Delaware against Mordechai Korf, Uriel Laber, and Chaim Schochet, 

as well as various Optima Family Companies. See Joint Stock Co. Comm. Bank 

Privatbank v. Igor Valeryevich Kolomoisky, Del. Ch., C.A. No. 2019-0377-JRS

(May 21, 2019, Compl.). The transactions and occurrences at issue in the Delaware 

case overlap entirely with and are substantively identical to the factual predicate for

the grand jury investigation pursuant to which the search warrant issued. See Ex. 2, 

(May 21, 2019, Del. Ch. Compl.). Korf, Laber, and Schochet, as well as the relevant 

Optima Family Companies, have been litigating this Delaware case now for over a

year. Because the transactions and occurrences at issue in Delaware overlap entirely 

with and are substantively identical to the factual predicate for the grand jury 

investigation, there is a clear risk that the government will intrude upon work product 

privileges, including work product emails and communications exchanged amongst 

the non-lawyer privilege holders in connection with the civil lawsuit in Delaware. 

Simply put, there is a clear risk that the government will be able to view a roadmap 

to the privilege-holders defenses by reviewing work product generated as a result of 

the Delaware action and exchanged amongst non-lawyers. In-house lawyer Daniela 

Rost, for example, has been actively involved in collating documents and assisting 

with the defense in that case, and her emails were seized and are subject to review. 

See Rost Dec. at ¶ 10. That is not to mention work product generated by and 

exchanged between non-lawyers.

On August 6, 2020, counsel for Korf and Laber sent an email to the 

government, “assert[ing] the attorney-client and work-product privileges on behalf 

of these entities and individuals” and noting that “for more than ten years, attorneys 

Daniela Rost and Robert Powell had their workspaces within Suite 5500 in Miami 

and did legal work for these various entities and individuals . . . . For the avoidance 

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of doubt, we object to the use of a filter team. See In re Grand Jury Subpoenas, 454 

F.3d 511 (6th Cir. 2006); In re Search Warrant Issued June 13, 2019, 942 F.3d 159 

(4th Cir. 2019).” Ex. 3 (Aug. 6, 2020, M. Kasowitz Email).

That same day, August 6, 2020, the government responded in pertinent part 

as follows:

The filter team will review all seized materials and segregate 

communications to or from attorneys, which may or may not be subject 

to attorney-client privilege. At no time will the filter team advise the 

investigative team of the substance of any of the communications to or 

from attorneys.

After reviewing the materials, the filter team then will provide all

communications that do not involve an attorney to the investigative

team and the investigative team may resume its review of those items. 

If the filter team believes that any of the communications to or from

attorneys may not actually be privileged (e.g., the communication 

includes a third party or the crime-fraud exception applies), the filter

team will contact you or obtain a court order before providing these 

attorney communications to the investigative team.

Ex. 4 (Aug. 6, 2020, AUSA Letter). The Assistant United States Attorney overseeing

the review of privileged documents for the filter team works for the same office 

overseeing the grand jury investigation.

On August 12, 2020, counsel for Korf and Laber sent a follow up letter, again 

“objecting to the government’s use of a filter team to review seized materials 

protected by the attorney-client and/or work product privileges.” Ex. 5 (Aug. 12, 

2020, M. Kasowitz Letter). The letter “respectfully disagree[d] with the 

government’s position,” noted that counsel does not “believe the filter procedures []

described are adequate,” and requested that the government “not review any of the 

seized materials pending the Court’s determination of this issue.” Id. The letter 

further put the government on notice that counsel for Korf and Laber would be filing 

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the instant motion “challenging the government’s use of a filter team to review the 

seized materials.” Id. 

LEGAL STANDARD

A motion for return of property pursuant Rule 41(g) while no criminal 

proceeding is pending is “a civil proceeding for equitable relief.” United States v. 

Potes Ramirez, 260 F.3d 1310, 1313 (11th Cir. 2001); see also United States v. 

Madden, 95 F.3d 38, 39 n. 1 (10th Cir. 1996) (agreeing with its “sister circuits” that 

because there was no criminal proceeding pending against the defendant, motion for 

return of property was a civil proceeding); United States v. Garcia, 65 F.3d 17, 18 

n. 2 (4th Cir. 1995) (“We agree with those circuits that have held that a motion for 

return of property, at least where no criminal proceedings are pending, is a civil 

action against the United States.”) (citations omitted). The Movants seek return of a 

copy of the materials seized so that Movants may perform a privilege review while 

no criminal proceeding is pending, and therefore this is a civil proceeding for 

equitable relief in which a preliminary injunction may be granted. See, e.g., In re 

Search Warrant Issued June 13, 2019, 942 F.3d 159 (4th Cir. 2019) (granting 

preliminary injunctive relief in identical context).

The relevant Optima Family Companies and individuals seek an injunction to

prohibit law enforcement from reviewing the seized materials until a protocol more 

protective of the privileges is ordered. The four factors to be considered in 

determining whether temporary restraining or preliminary injunctive relief is to be 

granted are: (1) a substantial likelihood of success on the merits; (2) that the 

preliminary injunction is necessary to prevent irreparable injury; (3) that the 

threatened injury outweighs the harm the preliminary injunction would cause the 

other litigant; and (4) that the preliminary injunction would not be averse to the 

public interest. Chavez v. Fla. SP Warden, 742 F.3d 1267, 1271 (11th Cir. 2014); 

Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995). 

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ARGUMENT

I. THE “FILTER TEAM” PROCESS WILL CAUSE IRREPERABLE 

HARM AND IS LEGALLY FLAWED

A. Prosecutorial Intrusion into the Substance of Privileged Materials 

Causes Irreparable Injury that Cannot Be Undone

Although cases often discuss irreparable injury second, the “showing of 

irreparable injury is the sine qua non of injunctive relief.” Siegel v. LePore, 234 F.3d 

1163, 1176 (11th Cir. 2000) (internal citations and quotations omitted). Accordingly, 

for purposes of this motion, irreparable harm is analyzed first, because it is

fundamental to the grant of injunctive relief.

The Supreme Court has held that, as a matter of law, the deprivation of a 

constitutional right “unquestionably constitutes irreparable injury.” Elrod v. Burns, 

427 U.S. 347, 373 (1976). This concept that a violation of a constitutional right in 

and of itself constitutes irreparable injury has been universally recognized and is not 

open to debate. See, e.g., Deerfield Med. Center v. City of Deerfield Beach, 661 F.2d 

328, 338 (5th Cir. 1981) (the denial of constitutional rights for even minimal periods 

of time constitutes irreparable injury justifying the grant of a preliminary injunction) 

(collecting cases); Gayle v. Meade, No. 20-21553-CIV, 2020 WL 3041326, at *20 

(S.D. Fla. June 6, 2020) (citing Elrod). 

“Notably, the attorney-client privilege and the work-product doctrine jointly 

support the Sixth Amendment’s guarantee of effective assistance of counsel.” In re 

Search Warrant, 942 F.3d at 174. “For example, in assessing the interplay between 

the attorney-client privilege and the Sixth Amendment, . . . the essence of the Sixth 

Amendment right to effective assistance of counsel is, indeed, privacy of 

communication with counsel.” In re Search Warrant, 942 F.3d at 174 (internal 

citations and quotations omitted); see United States v. Blasco, 702 F.2d 1315, 1329 

(11th Cir. 1983) (holding that “a communication between an attorney and his client 

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that is protected by the common law attorney-client privilege is also protected from 

government intrusion by the sixth amendment”). “Absent privacy of 

communications and the ‘full and frank’ discussions that flow therefrom, a lawyer 

could be deprived of the information necessary to prepare and present his client’s 

defense.” In re Search Warrant, 942 F.3d at 174.

“Similarly, the work-product doctrine fulfills an essential and important role 

in ensuring the Sixth Amendment right to effective assistance of counsel.” Id. “The 

Supreme Court has recognized that the work-product doctrine is vital to ‘assur[e] the 

proper functioning of the criminal justice system,’ in that it ‘provid[es] a privileged 

area within which [a lawyer] can analyze and prepare his client’s case.’” Id. (citing 

United States v. Nobles, 422 U.S. 225, 238). “Although the work-product doctrine 

most frequently is asserted as a bar to discovery in civil litigation, its role in assuring 

the proper functioning of the criminal justice system is even more vital.” Nobles, 

422 U.S. at 238. “The interests of society and the accused in obtaining a fair and 

accurate resolution of the question of guilt or innocence demand that adequate 

safeguards assure the thorough preparation and presentation of each side of the 

case.” Id. “Without that privileged area, a lawyer’s ability to plan and present his 

client’s defense will be impaired.” In re Search Warrant, 942 F.3d at 174 (internal 

quotations omitted). 

The conclusion that a prosecutorial “filter team” is adequate to protect these 

interests “afford[s] insignificant weight to the foregoing principles protecting 

attorney-client relationships.” Id. at 175. Crucially, the “filter team” procedure 

“fail[s] to recognize that an adverse party’s review of privileged materials seriously 

injures the privilege holder.” In re Search Warrant, 942 F.3d at 175; see Klitzman, 

Klitzman & Gallagher v. Krut, 744 F.2d 955, 960-61 (3d Cir. 1984) (ruling that law 

firm had demonstrated likelihood of irreparable harm where government seized 

thousands of files containing privileged information); Blasco, 702 F.2d at 1329; 

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United States v. Abbell, 914 F. Supp. 519, 520 (S.D. Fla. 1995) (in criminal 

prosecution in which large volume of documents and computer generated data was 

seized from lawyers, special master would be appointed, at government expense, to 

determine whether documents and data were protected from disclosure because of 

attorney client, work product, or other applicable privileges).

Separate and apart from the deprivation of constitutional rights, irreparable 

injury may also occur when privileged information is improperly revealed because 

“courts cannot always ‘unring the bell’ once the information has been released.” 

Maness v. Meyers, 419 U.S. 449, 460 (1975); see Blasco, 702 F.2d at 1329; In re 

Grand Jury Proceedings, 601 F.2d 162, 169 (5th Cir. 1979).

Although there are very few appellate precedents to guide disputes over the 

use of “filter teams,” the decision of the Fourth Circuit in In re Search Warrant 

Issued, 942 F.3d 159, is instructive. “When the pertinent legal principles are properly 

applied to the unrefuted evidence,” it is clear that review by the prosecutorial “filter 

team” of materials seized from their targets “is injurious.” In re Search Warrant, 942 

F.3d at 175. “And that harm is plainly irreparable, in that the Filter Team’s review 

of those privileged materials cannot be undone,” and the relevant Optima Family 

Companies and individuals “will be irreparably harmed absent an award of 

injunctive relief against the Filter Team and its Protocol.” In re Search Warrant, 

942 F.3d at 175; Blasco, 702 F.2d at 1329.

B. Movants are Likely to Succeed in Establishing that the “Filter Team” 

and Its Protocol are Legally Flawed and that an Alternative Mechanism 

is Appropriate

In order to prevail on the “likelihood of success” factor, the movants must 

“clearly establish[]” that the “filter team” and its protocol are legally flawed. Siegel, 

234 F.3d at 1176; In re Search Warrant, 942 F.3d at 176. Stated differently, the 

movants are “obliged to demonstrate [that they are] likely to succeed on [their

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request that the magistrate judge or a special master]— rather than the Filter Team 

— perform the privilege review of the seized materials.” In re Search Warrant, 942 

F.3d at 176.

Federal courts have generally “taken a skeptical view of the Government’s 

use of ‘taint teams’ as an appropriate method for determining whether seized or 

subpoenaed records are protected by the attorney-client privilege.” United States v. 

SDI Future Health, Inc., 464 F. Supp. 2d, 1027, 1037 (D. Nev. 2006).2“[T]aint 

teams present inevitable, and reasonably foreseeable, risks to privilege.” In re Grand 

Jury Subpoenas, 454 F.3d at 523. The Government’s taint team may “have a more 

restrictive view of privilege” than the defense. Id. In addition, the Government’s 

conflicting interests in both preserving privilege and pursuing the investigation 

present inherent risks. See id. Taint teams “have been implicated in the past in leaks 

of confidential information to prosecutors.” Id. (citing Noriega, 764 F. Supp. 1480). 

And even if no leaks occur, the use of walled-off taint teams undermines the 

appearance of fairness and justice. See In re Search Warrant for Law Offices 

Executed on March 19, 1992, 153 F.R.D. 55, 59 (S.D.N.Y. 1994); United States v. 

Stewart, No. 02 CR. 395 JGK, 2002 WL 1300059, at *8 (S.D.N.Y. June 11, 2002). 

“It is a great leap of faith to expect that members of the general public would believe” 

2 Although the use of “taint teams” or “filter teams” has been tolerated in limited factual 

scenarios, the analysis is often performed after the fact, based on lack of evidence of actual 

prejudice at trial. For example, the cases cited by AUSA Kall in the letter attached as Exhibit 4, 

purportedly in support of the use of “taint teams” or “filter teams,” are inapposite for these exact 

reasons. See, e.g., United States v. Coffman, 574 F. App’x 541, 564 (6th Cir. 2014) (taint process 

was reviewed under the invited error doctrine because the defendant agreed to process before it 

occurred, court made factual finding of crime-fraud exception, and case was argued as to lack of 

prejudice at trial); United States v. Warshak, 631 F.3d 266, 293 (6th Cir. 2010) (government had 

already reviewed privileged materials, and court’s analysis was post-trial, based on lack of 

evidence of direct or derivative use of privileged information at trial). Only a handful of cases have 

analyzed the legality of these procedures a priori, following an adversarial process conducted at 

the outset.

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that a wall separating members of the taint team from members of the prosecution 

“would be impenetrable.” In re Search Warrant, 153 F.R.D. at 59.

Instances in which the government fails to adequately safeguard privileges

through a “filter team” or “taint team” continue to occur, and have occurred as 

recently as April 2020. See, e.g., United States v. Sullivan, No. CR 17-00104 JMSKJM, 2020 WL 1815220, at *8 (D. Haw. Apr. 9, 2020) (“[T]he court entrusted the 

United States with a unique responsibility to ensure that any and all privileged 

material seized pursuant to the iCloud warrant was not provided to the prosecution 

team. And in this task, the United States failed.”); United States v. Elbaz, 396 F. 

Supp. 3d 583, 589 (D. Md. 2019) (government’s filter team improperly disclosed 

thousands of potentially privileged documents to a prosecution team, which then 

examined some of the documents); United States v. Esformes, No. 16-20549-CR, 

2018 WL 5919517, at *20 (S.D. Fla. Nov. 13, 2018) (prosecution team improperly 

reviewed materials from search before “taint” attorneys had reviewed the materials, 

despite assertions of defendant’s privilege); United States v. Pedersen, No. 3:12-CR00431-HA, 2014 WL 3871197, at *27 (D. Or. Aug. 6, 2014) (prosecutors failed to 

notify defense or court for months that prosecution team had reviewed target’s legal 

mail); Noriega, 764 F. Supp. at 1489 (Noriega’s conversations with his defense team 

were not recognized as such by outside screeners and DEA agents performing review 

and prosecutors were exposed to privileged conversations).

As further explained below, the movants are likely to succeed on the merits

of their challenge to the filter team and its protocol because: (1) the United States 

Attorney’s Office, (a prosecuting agency of the executive), should not be delegated

the judicial role of reviewing its prosecutorial targets’ privileged documents and

adjudicating the existence of legal privileges; (2) the procedure for segregating 

privileged documents by way of a “filter team” should not be authorized ex parte,

but instead privilege holders should be afforded the opportunity to engage the 

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adversarial process and inform the Court’s exercise of its judicial discretion; and (3) 

the procedure to segregate privileged documents should account for foundational 

principles that protect attorney-client relationships. See In re Search Warrant, 942 

F.3d at 176.

1. The United States Attorney’s Office Should Not Be Delegated the

Judicial Role of Adjudicating the Existence of Legal Privileges

The “filter team” protocol set forth in the search warrant “err[s] in assigning 

judicial functions to the executive branch.” Id. “[W]hen a dispute arises as to whether 

a lawyer’s communications or a lawyer’s documents are protected by the attorneyclient privilege or work-product doctrine, the resolution of that dispute is a judicial 

function.” Id. “Indeed, the Constitution vests ‘[t]he judicial Power’ solely in the 

federal courts, see U.S. Const. art. III, § 1, which includes ‘the duty of interpreting 

and applying’ the law, see Massachusetts v. Mellon, 262 U.S. 447, 488 (1923).” Id. 

“Put simply, a court is not entitled to delegate its judicial power and related functions 

to the executive branch, especially when the executive branch is an interested party 

in the pending dispute.” Id. The search warrant’s “filter team” protocol “erroneously 

authorize[s] the executive branch — that is, the Filter Team — to make decisions on 

attorney-client privilege and the work-product doctrine . . . a court simply cannot 

delegate its responsibility to decide privilege issues to another government branch.”

In re Search Warrant, 942 F.3d at 177. No matter what hat they wear, federal 

prosecutors’ principal job is to prosecute crimes, not to adjudicate the existence of 

legal privileges.

Moreover, as Judge Boggs writing for the Sixth Circuit aptly explained, a filter 

team might “have an interest in preserving privilege, but it also possesses a 

conflicting interest in pursuing the investigation, and . . . some [filter] team attorneys 

will make mistakes or violate their ethical obligations. It is thus logical to suppose 

that [filter] teams pose a serious risk to holders of privilege.” In re Grand Jury 

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Subpoenas, 454 F.3d at 523. A prosecutor who sees an incriminating privileged 

communication during a filter-team review cannot unsee it. When federal 

prosecutors review thousands of seized emails, including those indisputably seized 

from the possession of in-house counsel, the risks are intolerable.

In such circumstances, the Court itself or a special master should review the 

seized documents to evaluate claims of privilege and any exceptions to privilege. 

See Abbell, 914 F. Supp. at 519-20; accord Stewart, 2002 WL 1300059, at *7. In 

addition to avoiding separation of powers issues, this provides two key safeguards: 

(1) it protects the attorney-client privilege and guards against exposure to 

prosecutorial adversaries; and (2) more fundamentally, it protects the clients’ Sixth 

Amendment rights to a fair trial and the effective assistance of counsel, including 

the assistance of in-house counsel. Simply put, the function of the judiciary to 

adjudicate legal privileges cannot be properly (or securely) delegated to a 

prosecuting agency of the executive branch, especially where such delegation will 

result in prosecutors reviewing all privileged communications between in-house 

counsel and prosecutorial targets.

2. Privilege Holders Must Have an Opportunity to Participate in an

Adversarial Process to Inform the Court’s Judicial Discretion, 

Prior to Determination of a Procedure for Segregating Privileged 

Documents

Adversarial proceedings regarding the appropriate filter protocol should be

held before the filter team begins reviewing the material. In re Search Warrant, 942 

F.3d at 178–79. This is prudent given that an improper “taint team” or “filter team”

protocol threatens irreparable harm to the attorney-client privilege, which is 

“perhaps, the most sacred of all legally recognized privileges, and its preservation is 

essential to the just and orderly operation of our legal system.” United States v. 

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Bauer, 132 F.3d 504, 510 (9th Cir. 1997). The process for deciding the appropriate 

filter process was flawed for all of the following reasons:

First, “the timing of the authorization of the filter protocol” was

contemporaneous with the issuance of the search warrant, which “undermined the 

[Court’s] ability to exercise discretion with respect to the Filter Team and its 

Protocol, in that the [Court] could not have been fully informed of what was seized.” 

In re Search Warrant, 942 F.3d at 178. It is unclear to Movants the extent to which 

the Court was aware of the number and involvement of in-house counsel in this 

matter. The Court “may well have rejected the Filter Team and its Protocol” if it had 

known that in-house lawyers working at the offices of the relevant Optima Family 

Companies would have all their documents and communications seized, and that the 

government intended to review through all such legal documents and 

communications on its own. Id.

Second, the Court should decline “the government’s ex parte invitation with 

respect to the Filter Team,” and instead the Court should “conduct[] adversarial 

proceedings on whether to authorize the Filter Team and the Filter Protocol.” Id. “In 

such contested proceedings,” the Court could be “fully informed of the relevant 

background on the [office and its in-house lawyers], as well as the nature of the 

seized materials.” Id. at 179. “Additionally, the clients . . . and their lawyers could 

[be] heard by the judge.” Id. 

3. The Procedure to Segregate Privileged Documents Should 

Account for Foundational Principles that Protect Attorney-Client 

Relationships

The filter protocol contained in the search warrant should have been based on 

the weighing of “important legal principles that protect attorney-client 

relationships.” In re Search Warrant, 942 F.3d at 179. The current protocol permits

“government agents and prosecutors” to engage in “an extensive review of client 

Case 1:20-mj-03278-JJO Document 4 Entered on FLSD Docket 08/17/2020 Page 15 of 21
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communications and lawyer discussions,” which is “in disregard of the attorneyclient privilege, the work-product doctrine, and the Sixth Amendment.” Id. 

4. In These Circumstances, the Court or a Special Master Must 

Perform Privilege Review of the Seized Materials 

Because in-house counsel’s documents and communications were seized, and 

because in-house counsel have actively provided legal advice to the relevant Optima 

Family Companies and related individuals for over 10 years, “in these 

circumstances, . . . the Court (or an appointed special master) — rather than the Filter 

Team — must perform the privilege review of the seized materials.” In re Search 

Warrant, 942 F.3d at 181; see Abbell, 914 F. Supp. at 519-20; accord Stewart, 2002 

WL 1300059, at *7.

C. The Balance of the Equities Weighs in Favor of the Privilege Holders

“The government should have been fully aware that use of a filter team in 

these circumstances was ripe for substantial legal challenges and should have 

anticipated that those challenges could delay its investigations.” In re Search 

Warrant, 942 F.3d at 181-82. Potential delay to the government does not outweigh 

the irreparable injury to the attorney-client relationships caused by the improper 

“filter team” procedure. See In re Search Warrant, 942 F.3d at 182 (citing In re 

Grand Jury Subpoenas, 454 F.3d at 523-24); Abbell, 914 F. Supp. at 519-20.

D. The Public Interest Weighs in Favor of the Privilege Holders

“[A]n award of injunctive relief in these circumstances supports the ‘strong 

public interest’ in the integrity of the judicial system.” In re Search Warrant, 942 

F.3d at 182 (citing United States v. Hasting, 461 U.S. 499, 527(1983) (Brennan, J., 

concurring in part and dissenting in part)). By creating appearances of unfairness as 

to the intrusion into privileged documents and communications of in-house counsel, 

the filter team and its protocol contravenes the public interest. See In re Search 

Warrant, 942 F.3d at 182; Gallego, 2018 WL 4257967, at *2 (recognizing 

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appearances of unfairness inherent in use of filter teams and appointing special 

master to review materials seized from law firm); Stewart, 2002 WL 1300059, at *8 

(explaining that “it is important that the procedure adopted [for the review of seized 

materials] . . . not only be fair but also appear to be fair”).

For those who rely on their in-house counsel for legal advice — and to the 

public at large — it surely appears, as the Sixth Circuit recognized, that “the 

government’s fox [has been] left in charge of the [attorney-client] henhouse.’” In re 

Search Warrant, 942 F.3d at 182 (citing In re Grand Jury Subpoenas, 454 F.3d at 

523); see also In re Search Warrant for Law Offices Executed on Mar. 19, 1992, 153 

F.R.D. 55, 59 (S.D.N.Y. 1994) (“It is a great leap of faith to expect that members of 

the general public would believe any . . . wall [between a filter team and a 

prosecution team] would be impenetrable; this notwithstanding our own trust in the 

honor of an AUSA.”).

II. THE PROCEDURE PROPOSED BY THE PRIVILEGE HOLDERS IS 

REASONABLE, CAUSES NO PREJUDICE TO THE GOVERNMENT, AND 

ADEQUATELY PROTECTS THE LEGAL INTERESTS AT STAKE

The procedure for segregating privileged documents proposed by the movants 

is reasonable and will adequately safeguard the important legal interests at stake:

First, the government should be required to immediately return an electronic 

copy of the seized documents to counsel for the privilege holders for their review;

Second, counsel for the privilege holders should then be granted 45 days 

within which to identify privileged documents. The government should be

immediately precluded from reviewing seized documents pending completion of the 

45-day review period; 

Third, as to those items for which there is an assertion of privilege, counsel 

for the privilege holders should be required to submit a privilege log at the end of 

the 45-day period. The government must return and/or destroy copies of the 

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privileged documents. To the extent that the government challenges any assertion of 

privilege, the documents may be reviewed by the Court in camera, and the Court 

may then adjudicate the existence of valid legal privileges.

This sort of procedure is routinely used in litigation and accords with the 

fundamental tenet that it is the Court and/or a neutral third party that reviews

privileged documents in camera and renders decisions as to the existence of valid 

legal privileges. This procedure will cause no prejudice to the government, because 

it will be able to satisfy itself that a neutral court or third-party special master has 

reviewed the documents and adjudicated the existence of valid legal privileges. It 

will however protect the privilege holders’ legal rights and their attorney-client 

relationships from undue intrusion by prosecutorial adversaries.

III. WHILE THE ADVERSARY PROCESS WITH RESPECT TO THE 

APPROPRIATE PROCEDURE FOR SEGREGATING PRIVILEGED 

DOCUMENTS IS BEING ADJUDICATED, THE COURT SHOULD 

PRESERVE THE STATUS QUO

As noted in section II, supra, the government should be immediately 

precluded from further reviewing the seized documents, while the procedure for 

segregating privileged documents is still being adjudicated. The Court should 

expeditiously enjoin the government from performing any further review of the 

seized documents, while the procedure to segregate privilege is being litigated for 

the same reasons set forth in section I, supra. 

CONCLUSION

The Sixth Amendment’s guarantee of effective assistance of counsel requires 

that privileged documents be safeguarded from prosecutorial adversaries. And 

separation of powers principles preclude delegation of the judiciary’s function to 

determine the existence of legal privileges to executive prosecuting agencies. That 

principle of non-delegation is even more applicable where the same prosecutorial 

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agency investigating targets by way of a criminal grand jury is also seeking to act as

a quasi-judicial authority, intruding into targets confidential communications with 

their attorneys, and irreparably interfering with the proper functioning of attorneyclient relationships. 

The procedure proposed by the movants is reasonable and appropriate 

because: (1) it protects the attorney-client privilege and guards against exposure to 

prosecutorial adversaries; and (2) more fundamentally, it protects the clients’ Sixth 

Amendment rights to a fair trial and the effective assistance of counsel, including 

the assistance of in-house counsel. Even if no leaks occur, the use of walled-off taint 

teams undermines the appearance of fairness and justice. The procedure proposed 

herein will cause no prejudice to the government, but will preserve the appearance 

of fairness and justice, and will safeguard attorney-client confidences and 

relationships. Injunctive relief should be granted to appropriately structure the 

process for reviewing privileged documents.

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REQUEST FOR HEARING

Pursuant to Local Rule 7.1(b)(2), the Movants hereby request a hearing on 

this motion because of the substantial legal issues raised herein, the importance of 

the rights at stake, and the utility of discussing the factual nuances of the case in 

order to adequately inform this Court’s exercise of discretion in tailoring an 

appropriate procedure for segregating privileged documents. Counsel for the 

Movants anticipates that argument on the instant motion should not require more 

than an hour. 

Respectfully submitted,

Black, Srebnick, Kornspan & Stumpf, P.A.

201 South Biscayne Blvd., Suite 1300

Miami, FL 33131

Tel: (305) 371-6421

Fax: (305) 371-6322

By: /s/ Howard M. Srebnick

Howard M. Srebnick

Florida Bar No. 919063

Robert T. Dunlap

Florida Bar No. 11950

HSrebnick@RoyBlack.com

RDunlap@RoyBlack.com

Attorneys for Movants Mordechai Korf and 

Optima Family Companies

Case 1:20-mj-03278-JJO Document 4 Entered on FLSD Docket 08/17/2020 Page 20 of 21
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Kasowitz Benson Torres LLP

1633 Broadway

New York, New York 10019

(212) 506-1700

Marc E. Kasowitz

Mark P. Ressler

Ronald R. Rossi

Sarmad M. Khojasteh

Joshua Paul

Pro Hac Vice Anticipated

MKasowitz@kasowitz.com

MRessler@kasowitz.com

RRossi@kasowitz.com

SKhojasteh@kasowitz.com

JPaul@kasowitz.com

Attorneys for Movants Mordechai Korf, 

Uriel Laber, Optima Family Companies and 

Chaim Shochet

By: /s/ Scott A. Srebnick

Scott A. Srebnick, P.A.

201 South Biscayne Boulevard

Suite 1210

Miami, FL 33131

Telephone: (305) 285-9019

Facsimile: (305) 377-9937

Scott@srebnicklaw.com

Attorney for Movant Uriel Laber

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