UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-MJ-03278-O=SULLIVAN

In Re: Sealed Search Warrant 

and Application for a Warrant

______________________________/

ORDER

THIS MATTER is before the Court on the 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 (DE# 4, 8/17/20) (hereinafter “Motion”). The Court 

allowed Mordechai Korf, Uriel Laber, Chaim Shochet and the Optima Family 

Companies1 (collectively, “movants”) to intervene in the instant proceedings on August 

19, 2020. See Order (DE# 10, 8/19/20).

BACKGROUND

On July 31, 2020, the undersigned issued a search warrant to be executed at the 

Miami offices of some of the entities which comprise the Optima Family Companies. 

See Search Warrant (DE# 4-1, 8/17/20).2

1 The movants define the “Optima Family Companies” as those entities “listed in 

Attachment B.3 to the search warrant” excluding “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.” Mordechai Korf, Uriel Laber, Chaim Shochet and the Optima Family 

Companies’ Motion to Intervene (DE# 3 at 1 n.1, 8/17/20).

2 The government obtained a separate search warrant for the Cleveland offices of some 

of the movants. Response at 3. This Order pertains only to the Miami search warrant. 

The Court does not have jurisdiction over the Ohio search warrant and any review of

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Attachment B.2 of the search warrant contained the following review protocol: 

3. 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 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.

Search Warrant (DE# 4-1 at 8, 8/17/20).3 

On August 4, 2020, the government executed the search warrant at the Miami 

offices of some of the movants. Motion at 4; Declaration of Daniela Rost (DE# 4-6 at ¶3, 

8/17/20). In-house counsel, Daniela Rost, maintains an office at this location and “[t]he 

office . . . has a team of paralegals.” Declaration of Daniela Rost (DE# 4-6 at ¶¶ 3, 8, 

8/17/20). The materials from other in-house attorneys who have worked out of this office 

in the past [are] also stored at this location. Id. at ¶¶ 5-8. 

The law firm of Roche Cyrulnik Freedman LLP (hereinafter “RCF” or “outside 

counsel”), subleases office space at this location and “serves as outside counsel to 

some of the entities listed in the search warrant.” Declaration of Devin “Velvel” 

Freedman (DE# 12-3 at ¶¶ 4-5, 9/2/20). 

documents seized pursuant to the Cleveland search warrant will not be done in the 

Southern District of Florida.

3 The search warrant itself remains under seal as part of an ongoing criminal 

investigation. In this Order, the Court cites to only those portions of the search warrant 

which were disclosed in the parties’ public filings. 

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“RCF is actively representing the Movants in a civil action [brought by 

PrivatBank] in Delaware . . . which alleges, among other things, violations of the 

Racketeer Influenced and Corrupt Organizations Act” (hereinafter “Delaware litigation”). 

Reply at 3.

On August 6, 2020, the government initiated two civil forfeiture actions in the 

Southern District of Florida which relate to “assets that facilitated, were involved in, and 

are traceable to an international conspiracy to launder money embezzled and 

fraudulently obtained from PrivatBank.” See Verified Complaint for Forfeiture in Rem 

(DE# 1 at ¶1 in Case Nos. 20-cv-23278-MGC and 20-cv-23279-RNS, 8/6/20). According 

to the movants, “[t]he transactions, occurrences, and allegations at issue in the 

Delaware litigation are the same transactions and allegations the Government made in 

[the] two . . . civil forfeiture actions . . . . .” Reply at 3.

During the execution of the search warrant on August 4, 2020, the government 

seized numerous items from the Miami offices including documents, binders, notepads, 

shipping invoices, hard drives, flash drives, computers, laptops and disks. See Inventory 

of Miami Search (DE# 11-1, 8/28/20).4 The parties do not dispute that some of the 

4 The government states that of the 85 categories of items seized, three boxes of 

materials came from in-house counsel’s office and one box of materials came from the 

space subleased by RCF. Reply at 2, 4-5. At the September 18, 2020 hearing, the

government advised the Court that it provided the materials in these three boxes,

without the filter team reviewing or copying them, to the movants and the movants are 

conducting a privilege review of those materials. The box of materials that came from 

the space subleased by RCF has been returned to RCF. RCF has reviewed the 

materials and has determined that the materials in the box belonged to the Optima 

companies. The government has issued a subpoena to the Optima companies and in 

response to that subpoena, RCF will be returning the box to the government. See Order 

(DE# 19, 9/18/20). 

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items seized during the search are at least potentially privileged. Id.; Response at 2 

(acknowledging that “some documents seized likely will be privileged,” but maintaining 

that “the vast majority will not.”).

On August 17, 2020, the movants moved to intervene in this proceeding5 and 

filed the instant Motion “object[ing] to any review by law enforcement of privileged 

materials.” Motion at 2. 

On August 19, 2020, the Court held a status hearing wherein it allowed the 

movants to intervene in the instant proceeding and set a briefing schedule. See Order 

(DE# 10, 8/19/20). 

Pursuant to the Court’s briefing schedule, the government filed its response in 

opposition to the instant Motion on August 28, 2020. See United States’ Response to 

Motion of Optima Family of Companies, Mordechai Korf, Uriel Laber, and Chaim 

Shochet to Prohibit Review of Seized Materials (DE# 11, 8/28/20) (hereinafter 

“Response”). The movants filed their reply on September 2, 2020. See Movants’ Reply 

in Support of Motion to Prohibit Review of Seized Materials Until an Appropriate 

Procedure for Review of Privileged Items is Established (DE# 12, 9/2/20) (hereinafter 

“Reply”). 

At the Court’s direction, the parties have conferred regarding the issues raised in 

the instant Motion. Response at 6. Despite multiple discussions, the parties have not 

been able to agree on a privilege review protocol. See Response at 5-6, 18-20; Reply at 

10-11.

5 See Mordechai Korf, Uriel Laber, Chaim Shochet and the Optima Family Companies’ 

Motion to Intervene (DE# 3, 8/17/20).

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On September 17, 2020, the movants filed a status report concerning the 

documents they have received thus far from the government (52,034 pages in the first 

batch and 157,850 pages in the second batch) which they are in the process of 

reviewing for privilege. See Movants’ Status Report (DE# 17, 9/17/20).

On the same day, RCF filed a motion to intervene and for other relief based on 

the government’s search of RCF’s work area during the execution of the search 

warrant. See Roche Cyrulnik Freedman LLP’s Motion to Intervene for Limited Relief and 

an Evidentiary Hearing (DE# 14, 9/17/20) (hereinafter “RCF’s Motion”).

6 The movants

have joined in RCF’s Motion. See Movants’ Joinder in [ECF# 14] Roche Cyrulnik 

Freedman LLP’s Motion to Intervene for Limited Relief and an Evidentiary Hearing (DE# 

16, 9/17/20) (hereinafter “Movants’ Motion for Joinder”); Order (DE# 19, 9/18/20).

On September 18, 2020, the Court held a hearing on the instant Motion. At the 

hearing, counsel for the movants represented to the Court that the movants anticipate a 

large volume of emails regarding the Delaware litigation will be designated privileged. It 

was also established that the government has returned the seized items belonging to inhouse counsel and RCF. Thus, as it pertains to the instant Motion, the issue before this 

Court is what the protocol should be for the privilege review of the items seized from the 

remaining (non-attorney) areas of the Miami offices.

This matter is ripe for consideration. 

STANDARD OF REVIEW

The movants “seek an injunction to prohibit law enforcement from reviewing the 

6 The Court has set a briefing schedule on RCF’s Motion, see Order (DE# 19, 9/18/20),

and will rule on RCF’s motion once the issues have been briefed. 

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seized materials until a protocol more protective of the privileges is ordered.” Motion at 

7.

A preliminary injunction may be granted only if the moving party establishes four 

factors: (1) a substantial likelihood of success on the merits; (2) an immediate and 

irreparable injury absent injunctive relief; (3) a threatened harm to the movant that 

outweighs any injury the injunction would cause to the non-movant and (4) the 

injunction will not disserve the public interest. Carillon Imps. v. Frank Pesce Int’l Grp. 

Ltd., 112 F.3d 1125, 1126 (11th Cir. 1997) (citation omitted).

A preliminary injunction is “an extraordinary and drastic remedy not to be granted 

unless the movant clearly establishe[s] the ‘burden of persuasion’ as to the four 

requisites.” McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998) 

(citing All Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d 1535, 1537 

(11th Cir. 1989)).

ANALYSIS

A. Injunctive Relief 

1. Likelihood of Success on the Merits

The movants argue that they have established a likelihood of success on the 

merits. The movants raise numerous concerns with the filter team protocol set forth in 

the search warrant. The movants note that under the filter team protocol, the filter team

improperly engages in the judicial function of adjudicating legal privileges. Motion at 14 

(noting that “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 

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between in-house counsel and prosecutorial targets.”). 

The movants further argue that because the Court authorized the filter team 

protocol prior to the search, the Court did not know the nature of the items which would 

ultimately be seized. Motion at 15 (positing that “[t]he 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”) (internal quotation marks omitted).

7

Relatedly, the movants take issue with the fact that the movants did not have the 

opportunity to raise their concerns prior to the Court’s authorization of the filter team 

protocol. Id.

The movants also argue that the filter team protocol is flawed because it fails to 

account for “‘important legal principles that protect attorney-client relationships’” by

“permit[ting] ‘government agents and prosecutors’ to engage in ‘an extensive review of 

client communications and lawyer discussions,’ which is ‘in disregard of the attorney

client privilege, the work-product doctrine, and the Sixth Amendment.’” Id. at 15-16 

(quoting In re Search Warrant, 942 F.3d at 179). 

The government maintains that the movants cannot show a substantial likelihood 

of success on the merits because the filter team protocol set forth in the search warrant 

is standard procedure. See Response at 1 (stating that the filter team protocol outlined 

in the search warrant is “standard, considered practice—approved by the Department of 

7 As noted above, the government has since returned the materials taken from the work 

areas used by in-house counsel and outside counsel. 

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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.”); 

id. at 9 (stating that “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.”). The government argues that 

the risks identified by the movants, such as the potential for inadvertent disclosure of 

privileged materials is “unfounded” and that “courts begin with the ‘expectation and 

presumption that the Government’s privilege team and the trial prosecutors will conduct 

themselves with integrity.’” Id. at 8-9 (quoting In re Ingram, 915 F. Supp. 2d 761, 765

(E.D. La. 2012)).

The government further argues that the use of a filter team does not “usurp 

judicial authority” because filter teams “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).” Response at 10. The government also argues that the movants’ complaint 

about the ex parte manner in which the filter team protocol was authorized is moot 

because the movants have now presented their objections to the filter team protocol to 

the Court. Response at 11. 

At the outset, the Court rejects the movant’s argument that the use of 

government filter teams to conduct privilege reviews is per se legally flawed. Filter 

teams have been employed to conduct privilege reviews in numerous cases. See, e.g., 

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 

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1881370, at *3 (S.D. Tex. July 6, 2006) (noting that “[o]ther courts have upheld the use 

of taint team procedures.”).

Rather than being disruptive, some courts have viewed the use of filter teams as 

being protective of privileges: where “the 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 Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006); see also

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

2004) (“not[ing] that a review of the documents by a privilege team of Assistant United 

States Attorneys would not waive Defendant’s attorney-client privilege. A waiver is 

defined as the intentional relinquishment of a known right.”); United States v. Triumph 

Capital Grp., Inc., 211 F.R.D. 31, 43 (D. Conn. 2002) (stating 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”); In re Ingram, 915 F. Supp. 2d at 765

(noting that the government’s proposed filter team protocol “show[ed] proper deference 

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

investigation to proceed.”).

In In re Search of 5444 Westheimer Rd. Suite 1570, for instance, the court 

determined that a filter team protocol which provided for the use of a filter team to 

review all seized materials for potentially privileged items and provided the privilege 

holder with an opportunity to challenge the filter team’s privilege determinations would

“sufficiently protect any potentially privileged documents.” 2006 WL 1881370, at *3, *3

n. 5. By contrast, in Heebe v. United States, the court found that a procedure where “the 

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initial determination that a document was potentially privileged involved the examination 

of the document by individuals not on the ‘taint team,’ . . . threaten[ed] any privilege 

contained in those documents.” No. CIV.A. 10-3452, 2011 WL 2610946, at *5 (E.D. La. 

July 1, 2011) (emphasis added). Thus, the use of a filter team to review privileged 

materials is not, in and of itself, injurious to any privileged held by the movants. 

The movant relies heavily on In re Search Warrant Issued June 13, 2019, 942 

F.3d 159 (4th Cir. 2019), as amended (Oct. 31, 2019). That case is materially 

distinguishable from the instant case because: 

99.8 percent of the 52,000 emails seized by the government were not from 

Client A, were not sent to Client A, and did not mention Client A’s 

surname; and (2) . . . many of those emails contained privileged 

information relating to other clients of the Firm, including clients who are 

potential subjects or targets of government investigations.

Id. at 172. Here, the government has returned (without review) the materials seized 

from the work areas of in-house counsel and RCF and the movants have not identified 

any other clients whose privileged communications were seized. 

Most of the cases cited by the movants concern the searches of criminal defense 

attorneys or law firms that performed some criminal defense work. See, e.g., 

In re Search Warrant Issued June 13, 2019, 942 F.3d at 168 (search of a law firm which 

had both a civil and criminal practice); United States v. Stewart, 2002 WL 1300059, at 

*1 (S.D.N.Y. Jan.11, 2002) (search of offices shared by multiple criminal defense 

attorneys); United States v. Gallego, No. CR1801537001TUCRMBPV, 2018 WL 

4257967, at *2 (D. Ariz. Sept. 6, 2018) (search of law office belonging to criminal 

defense attorney). The concern in those cases – that members of the filter team might 

have been involved in or could later become involved in the criminal investigation and or 

prosecution of other clients – is simply not present here. The movants have failed to 

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establish a likelihood of success on their request that a government filter team not be 

permitted to review potentially privileged documents. 

Nonetheless, the Court has reservations about the initial filter team protocol set 

forth in the search warrant as applied to the instant case. The filter team protocol 

requires the filter team to segregate only those communications which are “to/from 

attorneys” and authorizes the filter team to “provide all communications that do not 

involve an attorney to the investigative team . . . .” Search Warrant (DE# 4-1 at 8, 

8/17/20). Under the filter team protocol set forth in the search warrant, at least some 

items which are protected by the attorney-client privilege or the work product doctrine 

may be inadvertently disclosed to the investigative team. This is because the 

segregation process only requires the filter team to review for possible privilege those 

items which are “to/from attorneys.” Id. As the movants note, the filter team 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.” Motion at 

3.8 Moreover, the initial filter team protocol as set forth in the search warrant does not in 

all instances provide the movants with a mechanism for challenging the filter team’s 

8 The movants also argue that the filter team may not know the names of all the 

attorneys. Motion at 4. However, that concern is easily remedied by permitting the 

movants to provide the government with a list of attorneys.

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privilege determinations.

9 See, e.g., United States v. Grant, 2004 WL 1171258, at *1 

(approving filter team protocol where the privilege holder would have the opportunity to 

object to privilege determinations made by the filter team).

The instant case is different from the ordinary search of a business where items 

protected by the attorney-client or work product doctrine may sometimes be found. The 

Court notes that the movants anticipate asserting attorney-client privilege or the work 

product doctrine over a large volume of communications concerning the Delaware 

litigation. Although the Delaware litigation is a civil action, the underlying transactions 

are related to the two civil forfeiture actions which the government has brought in this 

District. If privileged documents are inadvertently disclosed to the 

investigative/prosecution team, the government may become privy to privileged 

materials concerning the Delaware litigation. Such a disclosure could prejudice the 

movants and may result in future efforts by the movants to disqualify the 

investigative/prosecution team. It is therefore important to ensure that any privileged 

documents not be seen by the investigative/prosecution team. Allowing the movants to 

conduct the initial privilege review will protect both the movants and the government 

from the inadvertent disclosure of privileged materials to the government’s 

investigative/prosecution team. 

In sum, the movants have shown a likelihood of success on the merits with 

9 For instance, the initial filter team protocol as set forth in the search warrant requires 

the filter team to obtain a court order if “the filter team decides that any of the 

communications to/from attorneys are not actually privileged.” Search Warrant (DE# 4-1 

at 8, 8/17/20). However, the filter team is permitted to release to the 

investigative/prosecution team “all communications that do not involve an attorney” 

without providing the movants with an opportunity to assert a privilege. Id.

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respect to the initial filter team protocol as applied to the seized items in the instant 

case. The movants have failed to establish a likelihood of success on their request that 

a government filter team not be permitted to review potentially privileged documents.

2. Irreparable Harm 

The movants argue that they have suffered irreparable harm because the 

deprivation of a constitutional right – the Sixth Amendment’s guarantee of effective 

assistance of counsel – constitutes an irreparable injury. Motion at 8 (citing Elrod v. 

Burns, 427 U.S. 347, 373 (1976)). The movants note that “‘the attorney-client privilege 

and the work-product doctrine jointly support the Sixth Amendment’s guarantee of 

effective assistance of counsel.’” Id. (quoting In re Search Warrant, 942 F.3d at 174).

The movants also argue that they may suffer irreparable harm if privileged information is 

improperly disclosed. Id. at 10 (stating that “[s]eparate 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.’”) (quoting Maness v. Meyers, 419 U.S. 449, 460 

(1975)). 

The government argues that the movants cannot show an irreparable injury 

because “the Government will not use privileged information, and [privileged 

information] will not be viewed by anyone investigating Movants.” Response at 11. The 

government also argues that the movants’ Sixth Amendment right to effective counsel 

has not yet materialized and is not implicated in the filter team’s review of potentially 

privileged items because the movants are not under indictment and have only identified 

materials related to civil legal proceedings. Response at 13 (noting that “‘[t]he Sixth 

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Amendment right to counsel attaches at the first formal proceeding against an 

accused.’”) (quoting Rothgery v. Gillespie Cty., Tex., 554 U.S. 191, 203 (2008)). The 

government therefore argues that there can be no showing of irreparable harm based 

on the deprivation of a constitutional right. Id. at 13 (noting that “the attorney-client 

privilege is not itself a constitutional right”). The government also argues that “[e]ven 

assuming that there is a ‘right’ triggered here,” the movants cannot show irreparable 

harm because “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.” Id. at 14. 

In their reply, the movants maintain that the Sixth Amendment is implicated here 

because the government has commenced two civil forfeiture proceedings. Reply at 6 

(stating that “[a]lthough ‘[t]he Government argues that there [are] no adversary 

proceedings against the [Movants] because forfeiture actions are in rem, rather than in

personam [that] argument exalts form over substance.’”) (quoting United States v. 

Bowman, 277 F. Supp. 2d 1239, 1243 (N.D. Ala. 2003)). The movants also cite to 

several cases supporting the proposition that it is the review of privileged materials that 

harms the privilege holder. Id. at 6-8. The movants assert that it is “[t]he review of the 

most sensitive and sacred communications by adversarial prosecutors [that] causes 

fundamental harm to privilege holders.” Id. at 8. 

“A showing of irreparable injury is the sine qua non of injunctive relief.” Siegel v. 

LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (citations omitted); Sampson v. Murray, 

415 U.S. 61, 88 (1974) (stating that “the basis of injunctive relief in the federal courts 

has always been irreparable harm and inadequacy of legal remedies”). To show 

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irreparable harm, “the [movants are] obliged to demonstrate that [they are] likely to 

suffer such harm in the absence of injunctive relief.” In re Search Warrant, 942 F.3d at

171. The movants must make a “clear showing” of “substantial,” “actual and imminent” 

irreparable harm, not “a merely conjectural or hypothetical—threat of future injury.” 

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).

The Court is satisfied that the movants have shown irreparable harm with respect

to the initial privilege review of the seized documents. The filter team protocol as set 

forth in the search warrant requires the filter team to segregate only those 

communications which are “to/from attorneys.” Search Warrant (DE# 4-1 at 8, 8/17/20). 

Under the filter team protocol, the filter team “will provide all communications that do not 

involve an attorney to the investigative team and the investigative team may resume its 

review.” Id. Under the filter team protocol set forth in the search warrant, at least some 

items which are protected by the attorney-client privilege or the work product doctrine 

may be disclosed to the investigative team. 

The movants suspect that the government’s investigation largely mirrors the 

Delaware litigation. See Motion at 5 (asserting that “[t]he 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”). At the September 18, 2020 hearing, counsel for the movants represented to 

the Court that the movants anticipate a large volume of emails regarding the Delaware 

litigation will be designated privileged. 

The Court finds that the movants have shown irreparable harm with respect to 

the initial privilege review of the seized documents. Here, the movants are involved in 

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the Delaware litigation. If the government is permitted to review the materials seized 

from the Miami offices under the filter team protocol set forth in the search warrant

(which, as noted above, requires the filter team to review for privilege only those 

communications which are “to/from attorneys”), at least some items which are protected 

by the attorney-client privilege or the work product doctrine may be inadvertently 

disclosed to the investigative team. Moreover, given that the movant anticipates that a 

large volume of the materials for which it will assert a privilege concern the Delaware 

litigation, it is likely that the inadvertent disclosure will involve matters which directly 

relate to the government’s proceedings. Although the government has not publicly 

disclosed the nature of its investigation, it has two pending civil forfeiture actions in this 

District which relate to the Delaware litigation filed by PrivatBank. See Verified 

Complaint for Forfeiture in Rem (DE# 1 at ¶1 in Case Nos. 20-cv-23278-MGC and 20-

cv-23279-RNS, 8/6/20) (alleging that “assets that facilitated, were involved in, and are 

traceable to an international conspiracy to launder money embezzled and fraudulently 

obtained from PrivatBank.”). This case is therefore distinguishable from the ordinary 

search of a business where items protected by the attorney-client privileged or work 

product doctrine may sometimes be found. In this case, any inadvertently disclosed 

privileged materials would likely be related to the proceedings initiated by the 

government.

The movants have shown irreparable harm with respect to the initial privilege 

review of the seized documents. For the reasons stated in the prior section addressing 

likelihood of success on the merits, the movants have not shown irreparable harm as to 

the use of a government filter team to review of any documents for which the movants 

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assert a privilege. 

3. Balancing of Harms

The movants assert that the balancing of harms favors the issuance of an 

injunction. The movants argue that “the irreparable injury to the attorney-client 

relationships caused by the improper ‘filter team’ procedure” outweighs any concerns

the government may have about any potential delay to the investigation. Motion at 16.

The government asserts that the balancing of harms weighs against the issuance 

of an injunction. The government argues that allowing the movants to review the seized 

materials first “will necessarily delay the ongoing investigation” and, if the Court 

appoints a special master, “it could take months for that process to commence” and “will 

be incredibly expensive.” Response at 15-16.10

The movants counter that “[a] private sector special master can review data 

faster than a single AUSA who has other work.” Reply at 12. 

The Court finds that the balancing of harms favors the issuance of an injunction.

The filter team protocol as set forth in the search warrant which permits the filter team to 

“provide all communications that do not involve an attorney to the investigative team,”11

may result in the disclosure of items protected by the attorney-client privilege or work 

product doctrine, particularly communications related to the Delaware litigation. The 

government’s concerns regarding delay would be exacerbated if privileged materials are 

disclosed to the investigative/prosecution team and the movants later seek to disqualify 

10 As discussed below, the review process will only take up to 45 days after the 

documents are provided to the movants. 

11 Search Warrant (DE# 4-1 at 8, 8/17/20).

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the investigative/prosecution team. Even if the movants are ultimately unsuccessful, it 

would result in a delay in the proceedings.

The movants have shown that the balancing of harms favors the issuance of an 

injunction regarding the initial privilege review.

4. Public Interest

The movants must also show that “an injunction is in the public interest.” In re 

Search Warrant, 942 F.3d at 182 (citation omitted). The movants argue that “the filter 

team and its protocol contravene[ ] the public interest” because they “creat[e]

appearances of unfairness as to the intrusion into privileged documents and 

communications of in-house counsel.” Motion at 16. 

The government asserts that “[t]he public in general likely has little knowledge of 

or expectation regarding privilege review.” Response at 17. It points to the 

countervailing “public interest in minimizing the delay of criminal investigations and the 

efficient administration of justice” and notes that if filter teams are not used, the “courts 

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

records.” Id. at 17-18. In United States v. Grant, for instance, the court noted that 

“[p]ermitting the Government’s privilege team to conduct an initial review of the 

documents [would] narrow the disputes to be adjudicated and eliminate the time 

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

the possibility of delay in the criminal proceedings.” No. 04 CR 207BSJ, 2004 WL 

1171258, at *3 (S.D.N.Y. May 25, 2004).

In their reply, the movants maintain that while “[a] special master may impose 

financial costs, . . . the intrusion into privileged documents and communications

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imposes far greater harm to the public interest in functional attorney-client relationships, 

which these privileges uphold and protect.” Reply at 10. 

The parties have identified important and competing public interests. The Court 

finds that, in the instant case, the public interest is furthered by applying a modified filter 

team protocol to the seized items. Under the modified filter team protocol discussed 

below, the government will, on an ongoing basis, provide the movants with items to 

review for privilege.12 The movants will have forty-five (45) days from receipt of the 

items to assert their privileges. Allowing the movants to conduct a privilege review of the 

seized materials within a fixed time frame and on an ongoing basis will ensure that the 

attorney-client privilege and work product doctrine are timely asserted by the privilege 

holders while at the same time alleviating some of the government’s concerns with the 

delay and expense of using a special master to perform the privilege review at the 

outset.

The movants have shown that the public interest favors the issuance of an 

injunction as to the initial privilege review of the seized items.

B. Modified Filter Team Protocol 

The Court is concerned that the filter team protocol set forth in the search 

warrant only requires the filter team to review for possible privilege those items which 

are “to/from attorneys” and does not include other forms of privilege such as the work 

product doctrine. Additionally, the movants are presently litigating the Delaware litigation

12 At the September 18, 2020 hearing, the movants advised the Court that they have 

provided the government with passwords which will reduce the time it would ordinarily 

take for the government to copy and process electronic media. 

 

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which directly relates to the two civil forfeiture actions brought by the government in this 

District. The movants anticipate that they will be asserting a privilege over a large 

volume of communications concerning the Delaware litigation. For these reasons,

special care should be employed here to protect against the disclosure of privileged 

items.

The modified protocol will permit the movants to conduct the initial privilege

review of all seized items. The movants will provide a privilege log to the government’s 

filter team13 and the government’s filter team will have the opportunity to challenge any 

privilege designation on the movants’ privilege log. The government’s filter team will be 

permitted to review any item on the privilege log in order to formulate a challenge. 

Although the movants vehemently object to the filter team’s review of seized items, the 

Court finds that it is necessary to allow the government’s filter team to review any item 

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

challenge to the movants’ privilege designations. For instance, the government’s filter 

team may not be able to effectively raise the crime-fraud exception without reviewing 

the underlying item. The investigative/prosecution team will be prohibited from receiving 

any items listed on the privilege log unless agreed to by the parties or the Court/special 

master has overruled the privilege.

13 The government’s filter team shall be comprised of attorneys and staff from outside

the United States Attorney’s Office for the Northern District of Ohio’s Cleveland branch 

office. The filter team shall not share a first level supervisor with anyone on the 

investigative/prosecution team. Any supervisor involved in the filter team review shall be 

walled off from the underlying investigation.

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CONCLUSION

Having reviewed the applicable filings and the law and having held a hearing on 

September 18, 2020, it is

ORDERED AND ADJUDGED that the movants' 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 (DE# 4, 8/17/20) is GRANTED in part and DENIED in 

part as follows: 

1. The parties shall adhere to the following modified filter team protocol:

a. The government shall process the items and provide them to the 

movants, on a rolling basis, so that the movants may perform the initial privilege 

review. Within forty-five (45) days of receipt of these items, the movants shall 

release all non-privileged items to the government’s investigative/prosecution 

team and provide a privilege log to the government’s filter team for all items for 

which they assert a privilege.

b. The government’s filter team shall be comprised of attorneys and 

staff from outside the United States Attorney’s Office for the Northern District of 

Ohio’s Cleveland branch office. The filter team shall not share a first level 

supervisor with anyone on the investigative/prosecution team. Any supervisor 

involved in the filter team review shall be walled off from the underlying 

investigation.

c. The government’s filter team is permitted to review any items listed 

on the movants’ privilege log and may challenge any of the movants’ privilege 

designations. 

d. The government’s filter team and the movants’ counsel shall confer 

and attempt to reach a resolution as to those items challenged by the 

government’s filter team.

e. If the parties are unable to reach a resolution, the parties shall file a 

joint notice with the Court. Either the Court or a special master shall rule on the 

parties’ privilege disputes.

f. The filter team will provide to the investigative team only those 

items for which the parties agree or for which the privilege has been overruled. 

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2. The portion of this Order that allows for the government filter team review 

of potentially privileged documents is stayed until Thursday, October 15, 2020 to 

provide the movants with an opportunity to appeal this ruling.

14

DONE AND ORDERED in Chambers at Miami, Florida this 23rd day of 

September, 2020.

_______________________________________

JOHN J. O=SULLIVAN

CHIEF UNITED STATES MAGISTRATE JUDGE

14 The stay is only as to the use of a filter team or special master to conduct the initial 

privilege review. At the September 18, 2020 hearing, after the Court had announced its 

ruling, the movants requested a stay to provide them with an opportunity to appeal that 

ruling.

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