26668289.1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

YANJUN XU, 

a/k/a Xu Yanjun, 

a/k/a Qu Hui, 

a/k/a Zhang Hui, 

Defendant. 

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Case No. 1:18-cr-00043 

Judge Timothy S. Black 

DEFENDANT’S SUR-REPLY 

REGARDING THE GOVERNMENT’S 

DISCOVERY EXHIBITS

As Mr. Xu outlined in the motions for a Bill of Particulars and for Disclosure of Brady, 

Giglio, and Jencks Act Materials, the volume of untranslated discovery in this case creates a 

number of significant obstacles to preparing a defense. The UFED reports and indexes the 

government submitted to the Court as exhibits during the January 22, 2020 status conference do 

not alleviate these obstacles. 

The UFED reader for each device enables defense counsel to view and engage in limited 

manipulation of the untranslated Mandarin-language data. There is a separate report for each 

device from which the government pulled data. The indexes identify the sources and general 

categories of information provided in each tier of discovery and allow defense counsel to locate 

the original text of the government’s translated, inculpatory materials. But the translated, 

inculpatory materials and underlying Mandarin-language text are not the problem; that material 

has been translated into a language counsel can read. 

The primary obstacles defense counsel are encountering relate to the trove of untranslated 

materials and, with respect to those materials, the indexes and UFED readers are not helpful 

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guides. The UFED data is not Bates labeled. If Mr. Xu wants to identify a conversation or other 

information for counsel to review, he must provide a detailed file path (e.g. Open the iPhone 5, 

go to “Chats,” open a conversation. . .), and then describe in detail where in the conversation or 

document the potentially relevant information is located. That process may suffice for a chat that 

is a few lines long. But for conversations involving larger volumes of text, it would be difficult at 

best for Mr. Xu to pinpoint where in a Mandarin conversation his attorneys should begin reading 

when they do not speak or read Mandarin. 

Nor can Mr. Xu and his counsel coordinate their review by tagging documents, as one 

might in a typical discovery and document management program. Take Relativity for example. 

Typically, client and counsel are operating within the same Relativity account, so if one person 

tags a particular document as “Relevant” or “Exculpatory,” that tag appears for anyone to see 

who opens the document in the common account. In the same fashion, if one party makes notes 

on a given document, anyone accessing the account can see the notes. 

 In contrast, Mr. Xu and defense counsel are working from separate, stand-alone 

databases that are not linked and may not be linked due to Bureau of Prisons (“BOP”) 

restrictions. If defense counsel tags a document as potentially relevant or makes a note, its tag or 

note appears only on defense counsel’s set of documents. The same is true for the data Mr. Xu is 

reviewing, which is housed on a stand-alone computer. Thus, there is no practical way for Mr. 

Xu and his counsel to communicate and coordinate their review of the untranslated criminal 

discovery and identify potentially relevant information to each other. 

Nor is there a practical method for Mr. Xu to search his database with search terms and 

provide the results of the searches to defense counsel. Even if Mr. Xu could be trained to run 

such searches (and he and his team had the necessary information to formulate search terms), 

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BOP policy does not permit Mr. Xu to load electronic materials (including search results) onto a 

flash drive or other device and provide it to defense counsel. 

These hurdles leave defense counsel relying on the admirable and diligent work of one 

translator to review and search the UFED data, because she is the only person who can both 

access defense counsel’s copy of the criminal discovery and read the Mandarin-language 

materials. While in theory defense counsel could tell the translator (in English) what to search 

for in the UFED reports, she would then have to determine which Mandarin characters would 

match that search, run the search, and translate the results into English for counsel to review.1

But that process presents something of a chicken-and-egg problem; counsel can offer only 

limited direction for searching the UFED data without a clear idea of the contents of the data and 

the government’s theory of the case (issues addressed fully in Mr. Xu’s pending motions). The 

only other option is to put the translator in the driver’s seat in the search for exculpatory 

information. But she is neither trained nor licensed to make legal judgments about what is and is 

not relevant or exculpatory information. 

In short, while the UFED readers and indexes provided by the government are helpful, 

they do not solve the underlying problems that are precluding Mr. Xu and his counsel from 

effectively reviewing the untranslated data for exculpatory material. 

1

 Creating search terms using Chinese characters is far more complex than creating search terms 

in English. For example, a single name could be represented by multiple characters, each of 

which may have a wide variety of potential character combinations derived phonetically and in 

combination with its relative meaning. 

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Respectfully submitted, 

/s/ Jeanne M. Cors

Ralph W. Kohnen (0034418) 

Jeanne M. Cors (0070660) 

Robert K. McBride (pro hac vice)

Taft Stettinius & Hollister LLP 

425 Walnut Street, Suite 1800 

Cincinnati, Ohio 45202-3957 

Telephone: (513) 381-2838 

Fax: (513) 381-0205 

kohnen@taftlaw.com 

cors@taftlaw.com 

rmcbride@taftlaw.com 

COUNSEL FOR DEFENDANT 

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CERTIFICATE OF SERVICE 

I hereby certify that on February 5, 2020 a copy of the foregoing was filed electronically. 

Notice of this filing will be sent to all parties in this case by operation of the Court’s CM/ECF 

system. Parties may access this filing through the Court’s system. 

/s/ Jeanne M. Cors 

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