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 

______________________________________/ 

UNITED STATES’ RESPONSE TO MOTION OF OPTIMA FAMILY OF COMPANIES, 

MORDECHAI KORF, URIEL LABER, AND CHAIM SHOCHET 

TO PROHIBIT REVIEW OF SEIZED MATERIALS

Mordechai Korf, Uriel Laber, Chaim Shochet, and various entities they own or control 

within the Optima Family of Companies (“Movants”) ask that the Court invalidate standard, 

considered practice—approved by the Department of Justice and by numerous courts—for the 

efficient and careful exclusion of privileged materials from the fruits of a search and seizure 

warrant executed at business offices. Rather than allow disinterested and segregated career 

prosecutors to conduct a privilege review with Movants’ guidance, Movants say that only they can 

be trusted with that task. The outcome of that approach would cause the investigation to grind to 

a halt, and would foist an enormous burden on the Court (or the taxpayers, through the 

Government’s hiring of a special master). The Court should deny Movants’ request. 

The primary basis for Movants’ request is their assertion that “the search was the functional 

equivalent of a law office search.” Dkt. No. 4 at 2. That characterization tests the bounds of 

credulity. A single office within a multi-office complex was used by a single in-house lawyer 

working for only some Movants.1

 Three other lawyers had previously served as in-house counsel 

over the past decade, but no longer had offices at the search location. Only three boxes of 

1 Three other offices were rented to lawyers who did not represent Movants. A single box 

of materials was seized from one such office. 

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materials—of the 85 categories of items seized—came from the in-house lawyer’s office. Those 

three boxes were marked and segregated. Unlike a law firm, whose entire staff is dedicated to 

legal work, the Optima Family of Companies are ostensibly businesses that conduct business 

operations. Although some documents seized likely will be privileged, the vast majority will not. 

The search of a business that happens to have a lawyer on site is a far cry from a law office search, 

and does not demand the costly delay that Movants’ proposed procedure would entail. 

Accordingly, the Government respectfully requests that the Court deny the motion, or in 

the alternative, significantly limit the scope of Movants’ proposed alternative review to documents 

seized from the locations (physical and electronic) used by the in-house lawyer and her assistants, 

which are potentially privileged. The Government further requests that its own filter team be 

afforded an opportunity to review all documents seized. 

FACTUAL BACKGROUND 

Korf, Laber, and Shochet own, control, or manage a network of more than 30 entities, 

generally under some variation of the name “Optima,” with offices at 200 S. Biscayne Blvd., Ste. 

5500, Miami, Florida, 33131.2

 Those entities conduct various activities, including business 

activities. They own ferroalloy producers and traders, commercial real estate, and other 

metallurgical interests, among other things. Movants conducted business at the same address for 

more than a decade, though they changed floors over the years. 

2 The full list of the Optima Family of Companies is included in attachment B.3 to the 

Search Warrant. The Government notes that Movants expressly do not include 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, so any documents belonging to those entities are not at issue in the instant motion. 

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On July 31, 2020, this Court issued a warrant to search and seize items from Movants’ 

offices in Miami. A separate warrant was issued concurrently in the Northern District of Ohio for 

a search of Movants’ offices in Cleveland.3 

To ensure appropriate treatment of privileged documents seized during the search, the 

Government included within the warrant application, and this Court ordered, a protocol for the 

review of privileged materials: 

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 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. 

Attachment to Warrant B.2, ¶ 3. 

On August 4, 2020, the Government executed the search warrants. In Miami, law 

enforcement agents divided the Optima offices into 28 different locations (e.g., Korf office, 

Cubicles 1-20). See Exhibit A (inventory of seized items). That allowed the agents to keep track 

of the source location of materials, and to identify and segregate potentially privileged materials. 

3 Although this Court’s jurisdiction does not extend to the review process for the Cleveland 

warrant, in the interest of proceeding in good faith, the Government has agreed to comply with 

this Court’s order of August 19, 2020 (Dkt. No. 10) with respect to materials seized in Cleveland, 

and will inform Movants before it does otherwise. 

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On the day of the search, Daniela Rost arrived and informed the agents that she was inhouse counsel for “Felman Trading Americas.” Exhibit B, Affidavit of Matthew Hoke, ¶ 3. She 

stated that Felman had nothing to do with “Optima.”4 Exhibit B ¶ 4. She told agents that Felman 

Production and Felman Trading were the only two companies that were operational, and that the 

other companies “don’t do anything” and were just holding companies. Exhibit B ¶ 5. She 

confirmed she was the only in-house counsel at the office. Exhibit B ¶ 6. Rost identified her 

office, and the offices of three unrelated attorneys who did not represent Movants or any Optima 

entity, but simply rented out the space. Exhibit B ¶ 7. She noted that stacks of papers belonging 

to previous in-house counsel, including Robert Powell, were in her office, but that she did not 

know the contents of those documents and had not reviewed them. Exhibit B ¶ 8. Despite having 

the opportunity to do so, she did not identify any space used by other lawyers for Movants, or any 

storage space specifically used for legal work or the storage of potentially privileged materials. 

Exhibit B ¶ 9. She did not advise agents regarding specific privileged materials in her office or 

elsewhere; instead, she made general statements that there were privileged documents. Exhibit B 

¶ 10. She discussed logistics with agents to ensure that the servers, which held business 

information related to Felman’s operations, would be returned promptly so business operations 

could continue. Exhibit B ¶ 12. 

As agents searched the Optima offices, they carefully watched for potentially privileged 

materials. Whenever agents came across information that appeared might be privileged, they 

stopped searching and had separately designated filter agents, i.e., not investigative agents, review 

and segregate those materials. Only filter agents searched the lawyer offices identified by Rost. 

Of the three offices occupied by unrelated lawyers, only one had relevant material, which was 

4 The government disputes this statement’s accuracy. 

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collected in a single box and identified as documents related to Movants. From Rost’s office, only 

three boxes of materials were seized, items 77 to 79. Agents segregated those materials, and 

informed the FBI’s document processors that they were to be treated as potentially privileged. Of 

the 85 items seized, 28 were marked as possibly containing some potentially privileged materials. 

The paper documents seized are being copied, scanned, formatted for electronic keyword 

search, and Bates-stamped by DocLabs, an FBI facility. As of August 26, 2020, processing of the 

first set of documents obtained from the Cleveland search was completed.5 Processing of the 

remaining Cleveland documents, and those from Miami, is in process. On the evening of August 

27, Movants provided addresses to which the Government could send documents. On August 28, 

the Government sent Movants discs containing approximately 45,000 pages of materials that had 

been seized from one of the two Cleveland locations and processed by DocLabs. Of those, just 

over 3,000 pages were identified during the search as potentially privileged. The Government 

expects to make a production of documents seized from the Miami office early next week 

containing approximately 4,000 pages of materials, and to continue making rolling productions. 

As for electronic files that were seized, the Government is unable to process those materials 

until passcodes are removed. Although the Government can accomplish that without assistance, 

it will add months of processing time. The Government has requested that Movants instead 

provide passcodes, which they agreed to do at a meet-and-confer on August 20. As of August 26, 

Movants had provided passcodes for the media identified by the Government. The Government 

is in the process of examining the electronic media, and expects continuing to work with Movants 

to unlock and process such media so that it may be expeditiously returned to Movants. 

5 Given various logistical considerations, documents from the Cleveland search were put 

first in the processing queue. 

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During a meet and confer on August 20, the parties attempted to resolve the issues relating 

to the review. The Government provided Exhibit A, an inventory of the items seized. The parties 

discussed a modified filter approach, under which categories of documents that were unlikely to 

contain privileged materials could be reviewed by a filter team, rather than Movants. Movants 

proposed a scheme that would allow for such a modified approach on August 24. On August 25, 

the Government sent a step-by-step plan for the review, capturing the proposals made by Movants’ 

counsel, and including certain revisions. On August 27, Movants identified three concerns with 

the Government’s proposal, including, most importantly, the identity of the filter attorney. On 

August 27, the Government responded, stating that the choice of the filter attorney should be left 

to the Government, particularly where the individual is sufficiently isolated in the Government’s 

view. On August 28, Movants again objected to the Government’s proposed filter attorney, and 

stated that if the Government did not offer suitable alternatives, there was no agreement, and the 

parties were at an impasse. The Government proposed an alternative filter agent from the Akron 

office. 

ARGUMENT 

This Court should deny Movants’ request for injunctive relief. A preliminary injunction is 

an “extraordinary remedy never awarded as of right.” Winter v. Natural Resources Def. Counsel, 

555 U.S. 7, 24 (2008). The Eleventh Circuit has described the remedy as “drastic.” Siegel v. 

LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). The party seeking the injunction bears the burden 

of establishing four factors: (1) that it is likely to succeed on the merits; (2) that in the absence of 

an injunction, it is likely to suffer irreparable harm; (3) that the balance of equities tips in its favor; 

and (4) that an injunction is in the public interest. Winter, 555 U.S. at 20. 

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Movants cannot meet that standard—they neither show a likelihood of success nor 

likelihood of harm. And the balance of equities and the public interests favor filter reviews. 

Moreover, such relief is premature. As the Government stated at the hearing on August 

19, the first step should be, and now has been, discussions between the Government and Movant’s 

counsel. Following negotiations, the parties came close to agreement on a modified filter-review 

process that would minimize conflict and streamline the review method. As of the filing of this 

response, it is the Government’s view that only one issue, the identity of the filter review attorney, 

needs to be addressed by the Court in order for the parties’ compromise to be enacted. 

I. Movants Do Not Meet The High Standard For A Preliminary Injunction 

 As an initial matter, Movants suggest that they should be treated differently because “the 

search was the functional equivalent of a law office search.” Mot. at 2. And, indeed, the primary 

authorities they cite in their motion all involve searches of law firms. See e.g., In re Search 

Warrant Issued June 13, 2019, 942 F.3d 159 (4th Cir. 2019) (Movants’ primary authority); 

Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955 (3d Cir. 1984); United States v. Abbell, 914 

F. Supp. 519 (S.D. Fla. 1995); In re Search Warrant for Law Offices Executed on Mar. 19, 1992, 

153 F.R.D. 55 (S.D.N.Y. 1994); United States v. Stewart, No. 02 CR. 395 JGK, 2002 WL 1300059 

(S.D.N.Y. June 11, 2002). 

 That distinction, however, is inapposite. Even if a heightened set of standards applies to 

searches of law firms, Movants do not qualify as one. The vast majority of offices in the suite 

searched are occupied by businesspeople—the owners, managers, officers, assistants, and 

employees of the various Optima Family of Companies. They currently have one attorney, Daniela 

Rost, who works for them in the Miami office, and to the Government’s knowledge, none in the 

Cleveland office. By Rost’s own admission, she is only the general counsel for two of the 

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Movants, even though she sometimes provides legal advice to a handful of others. Over the course 

of a decade, Movants had three other in-house attorneys, but they do not retain offices in the space 

searched. This is no different than any other business office with an in-house attorney. And it 

does not approach a “law firm.” 

 Movants also ask to be treated differently because they have been engaged in civil litigation 

over the years, in which in-house counsel is involved. Again, that is no different from any other 

business with an in-house lawyer. And critically, it is significantly different from the law-officesearch cases relied on by Movants. In those cases, law offices that conducted significant criminal 

representation work, including for Movants, were searched. That is not the case here. 

 At the outset, then, the distinction Movants wish to draw, and their extensive reliance on 

In re Search Warrant Issued June 13, 2019, 942 F.3d 159 (4th Cir. 2019), is flawed. They are not 

a law firm, and have provided no grounds to receive the special treatment sometimes accorded to 

law firms. 

A. Movants are unlikely to succeed on the merits of their challenge to a filter team 

 Movants are unlikely to succeed on the merits of their claim.6 To prevail, Movants must 

show a “strong likelihood of success on the merits.” Hilton v. Braunskill, 481 U.S. 770, 776 

(1987). That means they must show that this Court was wrong to allow a filter review at all. By 

implication, it means they must show that filter teams are generally impermissible. They cannot 

meet that high bar. 

Movants’ sweeping statements about the “risks” of allowing a privilege review by a filter 

team, Mot. at 11-12, are unfounded. Although they imply that the Government is not to be trusted, 

6 The Government notes that Movants begin with the second prong of an injunction 

analysis, the “harm” factor. The Government instead proceeds in the order laid out by the majority 

of cases to apply the four factors. 

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courts begin with the “expectation and presumption that the Government’s privilege team and the 

trial prosecutors will conduct themselves with integrity.” In re Ingram, 915 F. Supp. 2d 761, 765 

(E.D. La. 2012). See also United States v. Taylor, No. CRIM. 10-86-P-H, 2010 WL 2924414, at 

*1 (D. Me. July 16, 2010); In re Search of 5444 Westheimer Rd. Suite 1570, Houston, Texas, on 

May 4, 2006, No. H-06-238, 2006 WL 1881370, at *3 (S.D. Tex. July 6, 2006); United States v. 

Grant, No. 04 CR 207BSJ, 2004 WL 1171258, at *2 (S.D.N.Y. May 25, 2004). 

 Movants next assert that allowing a filter team to review documents is an impermissible 

delegation of powers by the judicial branch to the executive branch. Mot. at 13-14. However, 

filter teams are a time-tested solution to the complex problem of reviewing voluminous records 

without investigators uncovering privileged materials or imposing massive costs on the court or 

the government. Indeed, “[t]raditionally, filter teams have been used to protect privileged 

information . . . from being viewed by investigators.” United States v. Sealed Search Warrant, 

No. 217CR103VEHTMP1, 2017 WL 3396441, at *2 (N.D. Ala. Aug. 8, 2017). See also United 

States v. Matter of Search of Info. Associated With Fifteen Email Addresses Stored at Premises 

Owned, No. 2:17-CM-3152-WC, 2017 WL 4322826, at *9 (M.D. Ala. Sept. 28, 2017) (noting that 

practice of employing a filter team “has a lineage of use”). 

Cases in which a filter team has been used to screen out privileged materials collected in 

the execution of a search warrant are legion—the process is so widely used, and deemed to protect 

the interests of the government as well as privilege holders, that there is frequently little comment 

beyond the use of the procedure. See, e.g., United States v. Jarman, 847 F.3d 259, 266 (5th Cir. 

2017) (“The taint process here was designed to protect [Defendant’s] clients’ privileged 

information.”); United States v. Sutton, No. CRIMA5:08-CR-40(HL), 2009 WL 481411, at *9 

(M.D. Ga. Feb. 25, 2009) (finding that, because of the use of a filter team, a search did not violate 

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the attorney client privilege); United States v. Jimenez, No. CR 16-00153-CG-N, 2017 WL 

3568670, at *2 (S.D. Ala. Aug. 17, 2017) (approving of use of a filter team to identify and 

segregate privileged emails); United States v. Metter, 860 F. Supp. 2d 205, 210 (E.D.N.Y. 2012) 

(noting use of a filter team with similar procedures as those at issue here); In re Ingram, 915 F. 

Supp. 2d at 765 (“the government's proposed filter team protocol shows proper deference to any 

attorney-client or work product privileges while allowing the government’s investigation to 

proceed”); United States v. Triumph Capital Grp., Inc., 211 F.R.D. 31, 43 (D. Conn. 2002) 

(approving Filter Team consisting of Government agents and prosecutors); United States v. 

Coffman, 574 F. App’x 541, 565 (6th Cir. 2014) (rejecting the defendant's claim that the 

government's Filter Team procedure violated due process and finding that the procedure used was 

constitutional). When “potentially-privileged documents are already in the government’s 

possession, . . . the use of the taint team to sift the wheat from the chaff constitutes an action 

respectful of, rather than injurious to, the protection of privilege.” In re Ingram, 915 F. Supp. 2d 

at 764–65 (citation omitted). 

Filter teams in no way usurp judicial authority. They operate under the court’s direction, 

and they are guided by instructions of the court (in this case, via the warrant, and any subsequent 

orders). And, both generally and per the Court’s particular order in this case, when they make 

determinations that presumptively privileged materials (e.g., emails sent from a lawyer) are not 

privileged, the filter team must seek permission of the Movants or the Court before allowing 

investigators to see those materials. A filter team is no more judicial usurpation than a privilege 

review conducted by Movants. Any challenges to Movants’ privilege determinations would still 

be adjudicated by the Court. 

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The filter process simply allows disinterested employees of the government, rather than 

highly interested counsel for Movants, to make an initial determination, with access to the 

documents themselves. The Court is the final arbiter of privilege, both for disagreements raised 

by the filter team and challenges raised by Movants. 

 Movants’ next assertion, that a filter review is inappropriate because they were not 

involved up front in establishing the review process, is a moot point. There will be no filter team 

review without further order of the Court, and the parties have had an opportunity to present their 

positions. The argument does nothing to establish that filter review generally, or this one 

specifically, is impermissible. 

 Movants’ third argument—that the filter protocol is inappropriate because it permits agents 

and prosecutors to review privileged documents—likewise is without merit. They very briefly 

argue that such conduct would cause irreparable injury. Mot. at 15-16. For the reasons discussed 

in I.B, below, that argument fails. There is no “injury” from a filter review; the Government will 

not use privileged information, and it will not be viewed by anyone investigating Movants. 

 Quite the contrary, it is essential that government filter attorneys be permitted to review 

potentially privileged documents. If the Government were, per Movants’ request, allowed to 

review only a privilege log, rather than the associated documents, it would not be able to 

adequately make arguments about over-designation. In such a situation, “the Government would 

not have the opportunity to brief or argue [privilege determinations] aided by the contents of the 

documents. Without the benefit of such a review, the privilege team would likely be unable to 

argue, for example, that no attorney-client privilege attached to the communication because of the 

crime-fraud exception, or that a document should be available for use at trial, regardless of workproduct contents, because of necessity and unavailability by other means.” Grant, 2004 WL 

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1171258, at *2. Even the best privilege log, as this Court noted during the hearing of August 19, 

2020, generally will not have adequate information to mount an informed and discriminating 

privilege challenge. If government filter attorneys are prevented from reviewing materials, there 

is a serious risk of non-privileged material being withheld. 

Finally, although certain of “in-house counsel’s documents and communications were 

seized,” Mot. at 16, that does not render a filter team inappropriate, as Movants claim. That 3 of 

the 85 items seized were from in-house counsel’s office does not mean that a filter team is improper 

as to the whole, or even as to the attorney. Such instances of seizing attorney materials are 

precisely why a filter team is necessary: it will work with Movants’ counsel to run searches to 

screen out privileged materials. In every case, potentially privileged materials may be seized. The 

fact that some materials are almost certainly privileged is not in itself a reason to eschew a filter 

review 

In short, Movants are unlikely to succeed on the merits of their claim because there is no 

“delegation” problem with a filter team, because use of filter teams is a well-established and proven 

practice, because they are not injured, and because the procedures used by a filter team can be 

tailored to fit the exigencies of the particular search with guidance from the Court and Movants. 

They have thus not met the standard for a preliminary injunction. 

B. Movants will not suffer irreparable harm from the use of a filter team 

To prevail, Movants must also establish that they are likely to suffer “irreparable harm” 

from the use of a filter team; the “possibility” of harm is not enough. Winter, 555 U.S. at 22. A 

showing of a likelihood of irreparable injury is a “high standard.” Chaplaincy of Full Gospel 

Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). The injury “must be both certain and 

great; it must be actual and not theoretical.” Id. Movants cannot meet that standard. 

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Their claim that allowing a government filter review will violate their constitutional rights, 

Mot. at 8-10, is spurious. The argument goes that, because the attorney-client privilege and workproduct doctrine “support” the Sixth Amendment’s promise of effective assistance of counsel, and 

because deprivation of a constitutional right constitutes irreparable injury, allowing a filter review 

causes irreparable harm. 

That argument fails for several reasons. First, the attorney-client privilege is not itself a 

constitutional right. It is “based in policy, rather than in the Constitution.” Stewart, 2002 WL 

1300059 at *5. In fact, since the privilege “stands in derogation of the public’s right to every 

man’s evidence, it ought to be strictly confined within the narrowest possible limits consistent with 

the logic of its principle.” United States v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & 

Helpers of Am., AFL-CIO, 119 F.3d 210, 214 (2d Cir. 1997) (internal quotations omitted). 

Privilege “cannot stand in the face of countervailing law or strong public policy.” United States 

v. Goldberger & Dubin, P.C., 935 F.2d 501, 504 (2d Cir. 1991). 

Second, to the extent it “supports” the Sixth Amendment’s guarantee of effective assistance 

of counsel in general, it does not do so here. Notably, there is not yet any Sixth Amendment right 

at issue. “The Sixth Amendment right to counsel attaches at the first formal proceeding against an 

accused.” Rothgery v. Gillespie Cty., Tex., 554 U.S. 191, 203 (2008) (alterations omitted). An 

individual “cannot establish a violation of [a] constitutional right to the effective assistance of 

counsel prior to [ ] being charged . . . because [the] Sixth Amendment right to counsel as to that 

offense had not yet attached.” Philmore v. McNeil, 575 F.3d 1251, 1257 (11th Cir. 2009). 

Additionally, there is not a Sixth Amendment right to assistance of counsel in civil

litigation—which, according to Movants, are the type of litigation documents potentially at issue 

here. As the court explained in Grant, “there are no Sixth Amendment concerns in this case. The 

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seized documents were not in the files of a criminal defense lawyer, and relate to civil, not criminal, 

litigation that predates the indictment in this case.” Grant, 2004 WL 1171258, at *3. Numerous 

courts have made this distinction. For instance, in United States v. Rogers, 751 F.2d 1074, 1077–

78 (9th Cir. 1985), the court concluded that the Sixth Amendment right to counsel was not involved 

where, during the investigation, defendant’s former attorney told agents about legal advice he had 

given to defendant. Similarly, in United States v. White, 970 F.2d 328, 333–334 (7th Cir. 1992), 

the court held that because a defendant’s former bankruptcy attorney did not represent defendant 

“in any criminal matter,” the divulgence of potentially privileged attorney-client information did 

not violate the Sixth Amendment. See also United States v. SDI Future Health, Inc., 464 F. Supp. 

2d 1027, 1047–48 (D. Nev. 2006) (collecting cases). Movants identify civil litigation in which 

they are engaged in detail, but they are not under indictment, and they do not claim that the 

purportedly privileged materials relate to criminal matters. Their Sixth Amendment argument is 

therefore inapt. 

Third, Movants’ argument elides an important point: where the deprivation of a Sixth 

Amendment right actually occurs. Even assuming that there is a “right” triggered here, the review 

of privileged documents by disinterested, non-investigative government employees is no different 

than the review of documents by a special master or the court. There is no “harm” caused by such 

review. See Sutton, 2009 WL 481411, at *9 (holding that because prosecuting attorneys did not 

view privileged materials, a search did not violate his attorney client privilege). That is because 

an intrusion into the attorney-client relationship “is not, in and of itself, a violation of the Sixth 

Amendment.” SDI Future Health, Inc., 464 F. Supp. 2d at 1048. A “violation occurs only if the 

defendant suffers substantial prejudice.” Id. No prejudice will result from a filter review of 

Movants’ documents. It does not help investigators, as they will never know the contents of those 

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documents. A neutral third party committed to secrecy seeing the documents does not cause harm. 

Simply put, there is no deprivation of a right at all. Movants’ argument is pure ipse dixit: they 

say that they are injured by a filter team without actually explaining how they are injured. 

Movants’ “second” argument is a regurgitation of the first: “it is clear that review by the 

prosecutorial filter team of materials seized from their targets is injurious.” Mot. at 10 (internal 

quotation marks omitted). That is not an explanation of how they will likely be harmed. It is a 

bald assertion of generalized harm. 

Movants’ allegations of harm are insufficient by any standard, and come nowhere near the 

heightened requirements for a temporary injunction. The claim that “irreparable injury may also 

occur,” Mot. at 10, is a far cry from “likely,” and coupled with the complete absence of specifics 

about what the harm will be, it cannot prevail. 

 C. The equities are not in Movants’ favor 

 The equities, likewise, do not favor Movants. They make a cursory argument that any 

delay or other cost associated with rejecting a filter team is outweighed by their supposed 

irreparable injury, and the fact that the Government should have known Movants would challenge 

the use of a filter team. That analysis is unpersuasive. 

 First, this Court already considered various factors when it established the filter protocol 

in connection with issuing the search warrant. The Government did not simply mandate a 

procedure; it submitted that procedure for judicial approval. The Government reasonably expected 

that such a procedure was appropriate. 

Second, Movants have not adequately articulated the irreparable injury they will suffer. 

And, in any event, allowing Movants to conduct a privilege review will necessarily delay the 

ongoing investigation. Even if, as they propose, they produce a privilege log in only 45 days, there 

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is a high likelihood that disputes will arise, particularly if the designated filter attorney cannot 

review the actual documents. There is also an enormous volume of material—over 100 terabytes 

of data, based on the Government’s initial assessment. If a special master, rather than a filter team, 

is to review for privilege, it could take months for that process to commence. It will take even 

longer for decisions to be rendered. And a special master will be incredibly expensive. 

 The Abbell case to which Movants pointed during the recent hearing exemplifies the 

extreme delay and costs associated with a special master. As the court explained in Black v. United 

States (involving Movants’ counsel), the work of the special master in Abbell had not been 

completed more than two and a half years after the special master had been appointed. 172 F.R.D. 

511, 514 n. 4 (S.D. Fla. 1997) (“In the Abbell case, a search was conducted in September, 1994, 

of the offices of several attorneys, and in excess of 200,000 pages of materials were seized. In 

September, 1995, the trial judge ordered the documents reviewed by an independent special master 

to separate the work product privileged documents from those to which the Government had a 

proper right to inspect. As of the present time (March, 1997) this work has not been completed by 

the special master and the underlying criminal trial has been delayed for approximately two and 

one-half years.”). The court in Black concluded that “[a] special master procedure utilized 

in United States v. Abbell . . . takes too long and costs too much. It would effectively deprive the 

Government of any access to any of the seized information.” Id. at 516. This is particularly so 

here, when the search was not of a law firm, as it was in Abbell. 

 The Government has attempted to proceed in good faith, and reached out to Movants’ 

counsel to request that they “assist with this review” by providing information for search terms to 

filter documents. To date, Movants have not done so. 

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The equities in this case lie in the Government’s favor, and against precluding a filter 

review. 

D. Filter team review is in the public interest 

A filter team promotes the public interest. Although Movants argue that a filter team’s 

review of potentially privileged documents will suggest “unfairness” that might undermine 

perceptions of the integrity of the judicial process, Mot. at 16-17, that concern is overstated. 

The public in general likely has little knowledge of or expectation regarding privilege 

review. Sophisticated entities with involvement in criminal proceedings, on the other hand, are 

well aware of the obligations that the Government undertakes when handling potentially privileged 

material, and the sanctions that may be imposed if it disregards those obligations or abuses the 

court’s trust. There is little threat to perceptions of the integrity of the judicial process in that 

regard. Indeed, some might perceive allowing Movants to conduct a privilege review as more 

likely to undermine the integrity of the criminal justice system. 

 Even if Movants’ identified public interest is implicated, it is certainly not the only interest, 

and it does not tip the scales. The public has a “strong interest in the investigation and prosecution 

of criminal conduct.” Grant, 2004 WL 1171258, at *2. If that interest “is to be adequately 

protected,” “the Government should be allowed to make fully informed arguments as to privilege.” 

Id. If it does not, individuals would potentially be able to hide important evidence under the guise 

of privilege. 

Relatedly, there is a public interest in minimizing the delay of criminal investigations and 

the efficient administration of justice. “Permitting the Government’s privilege team to conduct an 

initial review of the documents will narrow the disputes to be adjudicated and eliminate the time 

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required to review the rulings of the special master or magistrate judge, thus reducing the 

possibility of delay in the criminal proceedings.” Id. at *3. 

 Additionally, there is a public interest in minimizing costs of criminal investigations both 

to the government and to the courts. If filter teams are not permitted to conduct a review, the 

courts would bear a heavy cost of increased litigation and potential review of voluminous records. 

“[M]agistrates and district court judges would face” a significant “burden” “if they were to 

routinely review lawfully-seized documents in every criminal case in which a claim of privilege 

was asserted.” Id. at *3. See also United States v. Zolin, 491 U.S. 554, 571 (1989) (“[W]e cannot 

ignore the burdens in camera review places upon the district courts, which may well be required 

to evaluate large evidentiary records without open adversarial guidance by the parties.”). 

 Movants do not address any of those critical public interests. And they weigh heavily 

against disallowing a filter team, and against not allowing a filter team member to review all 

documents over which Movants may assert privilege. For those reasons as well, the Court should 

deny the injunction.

II. The Government’s Proposed Compromise Review Process Would Protect Privilege 

While Avoiding Excessive Cost And Delay 

Despite Movants’ lack of entitlement to the injunction they seek, the Government, 

following discussions with Movants’ counsel, and in an attempt to minimize conflict, proposed a 

modified filter review process. As of the filing of this motion, the parties had come close to an 

agreement, as follows: 

1) The Government will identify, in a spreadsheet, categories of materials based on the 

locations from which they were seized (e.g., Korf’s office, Room A). 

2) The Government will process all paper documents seized via the warrant, including the 

material seized in Cleveland, which will include OCR, bates stamping, and quality control. 

3) The Government will turn over copies of all seized paper documents as processing is 

completed, within 48 hours (excluding weekends/holidays). It anticipates making such 

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productions on a rolling basis, dependent on logical processing breaks as determined by 

the document processor. 

4) For each such production, the Government will identify whether it believes that the 

production includes non-privileged documents, potentially privileged material, or both. If 

feasible, the Government will identify the file-location of any potentially privileged 

documents. 

5) Movants, within seven days of receiving a document production, will confirm or contest 

whether Movants agree with the Government’s designations. If Movants disagree with any 

portion of the Government’s designations, Movants will specifically identify those 

documents or categories of documents that it disputes. 

a) If Movants determine that produced documents are potentially privileged, Movants will 

conduct a privilege review of those documents. They will have 30 days to do so from 

the initial date Movants received the documents from the Government. 

i) For documents that they determine are not privileged, Movants will notify the 

Government of that determination within 7 days, but no later than the end of the 

30-day review period. 

ii) For documents that they determine are privileged, Movants will prepare a privilege 

log. 

iii) During the privilege review, the Government will retain, but will not review, the 

documents. 

iv) A Government filter attorney will review the privilege log, as well as, at his or her 

discretion, the actual documents identified in the privilege log. 

v) If the filter attorney wishes to challenge a privilege designation, the filter attorney 

and Movants will try to resolve the challenge, including by redaction, if appropriate, 

and will submit the challenge to the Court if they are unable to do so. During that 

process, only filter team members will review documents identified by Movants on 

their privilege log. 

b) If Movants determine that produced documents are not potentially privileged, the 

Government will nonetheless use the following filter process to review the documents 

before they are released to the investigative team. 

i) First, the Government will run an electronic search of agreed-upon terms (e.g. the 

names of attorneys with whom the Movants may have had privileged 

communications). 

ii) If documents do not contain those terms, they will be turned over to investigators 

for review, and the filter process will be complete. 

iii) If documents include those terms, a filter attorney will review those documents. If 

the attorney determines they are privileged or potentially privileged, the document 

will not be further reviewed. 

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iv) If the filter attorney determines that documents containing the “filter” terms are 

either potentially privileged or not privileged, the attorney will inform 

Movants. Movants will then have seven days to designate the document as 

privileged or non-privileged. 

v) If the filter attorney disagrees with the designation, the filter attorney and Movants 

will attempt to resolve the disagreement, including by redaction. If there is no 

agreement, the challenge may be submitted to the Court. 

6) If, after documents have been cleared for investigator review by either Movants or the filter 

process, the Government identifies a document it believes to be privileged, the Government 

will immediately cease review of the document, will not use that document or information 

obtained from it, and will provide it to the filter attorney to discuss with Movants. 

7) To the extent practicable, the parties will apply the same methodology to the electronic 

records seized. The parties will meet and confer in good faith to try to reach a resolution 

if it is not, and will otherwise seek further relief from the Court. 

As of the filing of this Response, the parties have not reached final agreement. The primary 

obstacle is the identity of the filter attorney. Based on Movants’ email of August 28, to the extent 

they do not agree with the Government’s selection of a filter attorney, they do not believe that any 

filter attorney review should be permitted, and none of the compromise proposal outlined above 

should be implemented. 

As a matter of policy and practice, the assignment of attorneys within the Department of 

Justice is not the decision of defense counsel. As discussed above, the Court begins with the 

presumption that the Government is to be trusted, and that the Government will follow the protocol 

to protect privilege and prevent privileged material from being transmitted to investigative team. 

In this case, the Government has proposed, in line with department policy, that the filter 

attorney be an AUSA in the United States Attorney’s Office for the Northern District of Ohio’s 

Akron branch office. The investigative team, meanwhile, is located in the Cleveland office. That 

individual will not be supervised by any member of the investigative team, and will not work on 

the investigative team on this or related investigations or litigation beyond his filter 

responsibilities. 

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Such a choice would ensure sufficient physical and operational distance between the 

investigative team and the filter team. As a matter of policy, the selection of qualified and 

available filter attorneys cannot be delegated to the preference of defense counsel; it must reside 

with the management of the Department of Justice. Unless and until there is a genuine threat that 

privilege will be invaded by the selection of a particular filter attorney, deference to the 

Department’s choice should be respected. 

 The parties had also discussed, recognizing the novelty of this approach, that the process 

and timeline outlined above would be tested in good faith on an interim basis for 30 days. If it is 

found to be unworkable, the parties will revisit the procedures, and if they are unable to resolve 

disagreements, may seek further relief from the Court. 

 To the extent the Court is inclined to implement the above proposal, the Government asks 

that it be permitted to name a filter AUSA as described above, and that the filter AUSA be 

permitted to look at all documents designated as privileged without any prior notification of 

Movants’ counsel. 

CONCLUSION 

For the foregoing reasons, the Government respectfully submits that a preliminary 

injunction is unwarranted and contrary to governing law, and asks that the motion be denied. 

Nevertheless, the Government asks that the Court mandate the process outlined above, including 

the terms outlined by the Government. 

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Respectfully submitted, 

 

DEBORAH CONNOR, CHIEF 

MONEY LAUNDERING AND ASSET 

RECOVERY SECTION 

DATED: August 28, 2020 BY: /s Shai D. Bronshtein 

 Shai D. Bronshtein, Trial Attorney (#A5502665) 

 Mary Butler, Chief 

 Criminal Division 

 United States Department of Justice 

 1400 New York Avenue NW 

 Washington, DC 20005 

 Telephone: (202) 616-5950 

 Email: Shai.Bronshtein@usdoj.gov 

 

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August 28, 2020, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. 

BY: /s Shai D. Bronshtein 

 Shai D. Bronshtein 

 Trial Attorney, Criminal Division 

 United States Department of Justice 

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