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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’ OPPOSITION TO MOTION TO STAY THE FILTER 

PROSECUTOR’S REVIEW OF PRIVILEGED DOCUMENTS PENDING APPEAL

Having successfully delayed the Government’s review of documents for three months, 

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

Optima Family of Companies (“Movants”) now ask for more. And unlike the finite, weeks-long 

stays provided by Magistrate Judge O’Sullivan and this Court to adjudicate Movants’ challenges, 

the latest request, if granted, would likely delay review for many more months. Movants had two 

chances to make their case, and their arguments were appropriately rejected both times. The appeal 

is meritless, and Movants do not even attempt to meet the heavy burden required to obtain a stay 

pending appeal. The Court should deny their motion.

BACKGROUND

The background of this dispute is thoroughly discussed in the Government’s opposition, 

Docket Number (“Dkt. No.”) 11 at 2-6. 

As relevant here, Magistrate Judge O’Sullivan granted Movants the ability to conduct an 

initial privilege review of documents seized during a search of their offices. During that review, 

the Government is not permitted to review any of the seized documents. Following the review, all 

documents Movants claim privilege over will be segregated and may not be reviewed by the 

investigative team unless Movants withdraw the designation or the court orders otherwise. 

Magistrate Judge O’Sullivan permitted “the government’s filter team to review any item listed on 

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the privilege log in order for the government’s filter team to make an informed challenge to the 

movants’ privilege designations.” Dkt. No. 20 at 20.

This Court upheld that ruling. It noted that filter review of privileged documents is “wellestablished” and “routine,” and that filter review “protect[s] rather than infringe[s] upon, the 

privilege protections afforded to parties.” Dkt. No. 36 at 3-4. It found that Movants would not be 

harmed by a privilege review, and that Judge O’Sullivan’s “carefully crafted” order afforded far 

more protection than many others that had been deemed appropriate. Id. at 5, 7. 

This Court stayed its order to allow Movants to appeal. Movants filed a notice of appeal 

on November 10, 2020. On the eve of the stay expiring, Movants filed this motion for a stay.

ARGUMENT

A stay pending appeal is extraordinary relief for which the moving party bears a heavy 

burden. Winston-Salem/Forsyth Cty. Bd. of Ed. v. Scott, 404 U.S. 1221, 1231 (1971). The 

Eleventh Circuit considers four factors: 

(1) whether the stay applicant has made a strong showing that he is likely 

to succeed on the merits; (2) whether the applicant will be irreparably 

injured absent a stay; (3) whether issuance of the stay will substantially 

injure the other parties interested in the proceeding; and (4) where the public 

interest lies. 

Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (citations omitted). See also Garcia-Mir v. Meese, 

781 F.2d 1450, 1453 (11th Cir. 1986); Castillo v. Tucker, No. 10-23898-CIV, 2012 WL 2049360, 

at *1, (S.D. Fla. June 6, 2012). None is in Movants’ favor.

1. Movants Are Not Likely To Succeed On The Merits.

Movants are not likely to succeed on the merits, the “most important factor.” Garcia-Mir,

781 F.2d at 1453. “A finding that the movant demonstrates a probable likelihood of success on 

the merits on appeal requires that [the court] determine that the trial court below was clearly 

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erroneous.” Id. (citing In re Grand Jury Proceedings, 689 F.2d 1351, 1353 (11th Cir. 1982) (per 

curiam)).1

 

This Court’s affirmance of Judge O’Sullivan’s provision of a modified filter review is not 

clearly erroneous. As both Judge O’Sullivan and this Court recognized, there is vast authority 

supporting the use of filter review. See Dkt. No. 20 at 8 (“Filter teams have been employed to 

conduct privilege reviews in numerous cases.”); Dkt. No. 36 at 3 (“it is well-established that filter 

teams . . . are routinely employed to conduct privilege reviews”). See also United States v. Sealed

Search Warrant, No. 217CR103VEHTMP1, 2017 WL 3396441, at *2 (N.D. Ala. Aug. 8, 2017)

(“Traditionally, filter teams have been used to protect privileged information . . . from being 

viewed by investigators.”); 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 the practice of employing a filter team “has a lineage of 

use”); In re Ingram, 915 F. Supp. 2d 761, 764 (E.D. La. 2012) (noting that “several U.S. District 

Courts . . . have approved the use of government filter teams.”); 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) (noting that “[o]ther courts have upheld the use of taint team procedures.”); 

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 

a filter team was used, a search did not violate 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 

1 If Movants want this Court to find that its decision was clearly erroneous, they should 

have filed a motion for reconsideration rather than asking this Court to make that determination in 

the context of a stay.

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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); United States v. Triumph Capital Grp., Inc., 211 F.R.D. 31, 

43 (D. Conn. 2002) (holding that “[t]he use of a taint team is a proper, fair and acceptable method 

of protecting privileged communications when a search involves property of an attorney”); United

States v. Coffman, 574 F. App’x 541, 565 (6th Cir. 2014).

The Eleventh Circuit has also noted the use of filter reviews and has not found that 

defendants were prejudiced by it. See, e.g., United States v. DeLuca, 663 F. App’x 875, 877 (11th 

Cir. 2016); United States v. Kallen-Zury, 710 F. App’x 365, 373 (11th Cir. 2017).

Although Movants try to distinguish themselves by claiming the search was the “functional 

equivalent” of a law office search, and point to a Fourth Circuit opinion that rejected a filter review

in such circumstances, as Judge O’Sullivan and this Court found, this case is not in any way 

analogous to a law office search. Dkt. No. 20 at 10; Dkt. No. 36 at 4. It has much more in common 

with the myriad cases that have allowed filter review as a routine part of an investigation that 

protects, rather than derogates, privilege rights. 

Movants offer no basis to believe that this Court’s decision allowing a filter review is 

clearly erroneous, or that they will be successful in challenging the near uniform approval of filter 

reviews. Their showing of a likelihood of success on the merits does not even rise to the inadequate 

level of “better than negligible.” Nken v. Holder, 556 U.S. 418, 435 (2009). Simply put, Movants

cannot meet—and do not try to meet—their burden of showing that they are likely to succeed on 

the merits. For that reason, this Court should deny a stay pending appeal. 

2. Movants Have Not Shown A Likelihood Of Irreparable Injury

A stay “may not issue” if the movant fails to “make a certain threshold showing regarding 

irreparable harm . . . regardless of the [ ] proof regarding the other stay factors.” Doe #1 v. Trump, 

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957 F.3d 1050, 1058 (9th Cir. 2020). The chance of irreparable injury must be more than a mere 

“possibility.” Nken, 556 U.S. at 435. 

Movants do not articulate any basis for finding that they will suffer irreparable injury 

absent a stay—the word “injury” (or an analog) does not even appear in their motion. On that 

basis alone, the motion should be denied.

Even if Movants had tried to articulate the sort of nebulous injury they referred to in their 

initial motion, that argument would fail. Under this Court’s order, a separate filter team, entirely 

distinct from the investigative team, in a different office location, will be able to review potentially 

privileged documents and make appropriate privilege challenges. That review will take place only 

after Movants have segregated the materials they deem to be privileged. The investigative team 

will not have access to any documents prior to that review. And even after the filter team has 

conducted a review, it cannot release documents to the investigative team without the permission 

of Movants or an order from the court.

As Judge O’Sullivan and this Court found, there is no harm at all from such a review 

protocol. Dkt. No. 20 at 16; Dkt. No. 36 at 5. It is far more protective than typical filter reviews, 

and there are greater barriers to accidental exposure by the investigative team to privileged 

materials. The Supreme Court has recognized that collateral-order appeals, such as Movants, are 

not necessary to protect the attorney-client privilege, and that post-judgment appeals suffice. 

Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 108-09 (2009).

3. A Stay Would Prejudice The Government And Is Not In The Public 

Interest

The third and fourth factors of the stay analysis, which merge when the Government is the 

opposing party, also strongly militate against a stay. See Nken, 556 U.S. at 435. The appeal could 

last months—Movants have until December 20, 2020 to file their brief (even if they are “planning” 

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to submit the brief early and “intend[] to devote substantial professional time” to it). Dkt. No. 42 

at 2. Briefing would take another month and a half after that. There is then the possibility of oral 

argument, and the time the court will take to reach a decision. 

If the Court’s order is stayed, the Government would be hamstrung in its analysis of 

Movants’ privilege designations during that time. Without “the opportunity to brief or argue 

[privilege determinations] aided by the contents of the document,” the Government “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 work-product contents, because of necessity and unavailability by other means.” 

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

As Judge O’Sullivan and this Court found, access to the documents themselves, by a filter attorney, 

is essential and entirely appropriate. The Government will be prejudiced if a stay issues, because 

the investigation will be delayed.

Movants coyly suggest that the Government would not be injured because it “has plenty of 

material to review.” Mot. at 3. Movants have no way of knowing what the Government is 

reviewing or what resources it is employing; their speculation is meaningless. And, in any event, 

it is wrong. The filter attorney would have nothing to review related to the search if a stay is 

issued. Rather than beginning a lengthy process now, it would be forced to wait for months.

Movants also claim that the filter attorney “presumably need[s] time to acquaint himself 

with the theory of prosecution.” Id. Not so. The filter attorney is ready to start his review at a 

moment’s notice. That process should not be delayed further.

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 

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should be allowed to make fully informed arguments as to privilege.” Id. That interest will be

materially harmed if Movants are allowed to delay challenges to their privilege designations by 

months. There is no basis for such a delay.

CONCLUSION

Neither Judge O’Sullivan’s order nor this Court’s affirmance was clearly erroneous or

contrary to law, and Movants will not be injured in the absence of a stay. Meanwhile, the 

Government will be. There is no basis for a stay, and the Court should deny the request.

Respectfully submitted,

DEBORAH CONNOR, CHIEF

MONEY LAUNDERING AND ASSET 

RECOVERY SECTION

DATED: November 19, 2020 BY: /s Shai D. Bronshtein

Shai D. Bronshtein, Trial Attorney (#A5502665)

Mary Butler, Chief, International Unit

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 November 19, 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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