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Rejecting the government’s argument that an insulated “privilege team” should be allowed to screen materials seized from indicted lawyer Lynne Stewart’s office for material protected by the attorney-client privilege, a federal judge Wednesday appointed a special master in the case. Judge John G. Koeltl of the Southern District of New York said the appointment was prompted by the “extraordinary” circumstances posed by the search of Stewart’s law offices April 9, including the fact that she shares a suite with other defense attorneys who may have clients facing prosecution in the Southern District of New York. The judge in United States v. Stewart, 02 cr. 395, brushed aside the government’s contentions that appointment of a special master would lead to needless delay in the case and prejudice its ability to argue that some materials are not protected by the privilege and do not constitute attorney work product. Koeltl also said he was appointing a special master who would be able to obtain expedited security clearance in a sensitive case involving national security: Gary P. Naftalis of New York-based Kramer, Levin, Naftalis & Frankel, a criminal defense attorney who was formerly the deputy chief of the criminal division in the Southern District U.S. Attorney’s Office. Naftalis is a lawyer, the judge said, “who is knowledgeable about investigative techniques, and whose impartiality, integrity, competence and diligence are beyond reproach.” Stewart was indicted April 8 along with three others for providing material support for terrorism. Prosecutors charge that she helped her client, imprisoned Sheik Omar Abdel Rahman, communicate with his followers in the terror organization called Islamic Group in violation of special administrative measures imposed on the sheik in 1998. The search of Stewart’s offices on lower Broadway in Manhattan yielded three boxes of documents, one box of audio tapes sent from the federal prison where the sheik was being held, hard drives from a computer shared by Stewart with her fellow defense lawyers, and 28 floppy disks. The government argued that long-standing procedures used by the Justice Department and the Southern District U.S. Attorney’s Office to protect privileged materials and attorney work product were well-suited to the Stewart case. Those procedures call for a “privilege team” to review materials taken pursuant to a warrant for arguably privileged matter and segregate them from the prosecution team in the original case as well as from prosecutors in any other cases being handled by the office. But Susan V. Tipograph, representing Stewart on the search warrant issue, said the privilege team was ill-equipped to keep the materials separate or determine independently what materials are responsive to the warrant. But Judge Koeltl said “both sides do not fully come to terms with the actual proposals made by the other side.” SPECIAL MASTER As an example, the judge said, “the defendant argues that the use of a government privilege team would effectively allow government agents who have been trained to play a prosecutorial role to make final determinations of responsiveness and privilege, which should allegedly be made instead in a more neutral manner.” The judge added: “However, the government’s proposed procedures would merely allow the government to make a first cut to determine what is arguably responsive and not privileged, and would then allow the defendant to review these materials to identify any objections. Any disputes between the parties would then be decided by the Court, not the prosecution.” And while the government said it would be prejudiced by allowing Stewart to review the materials before the prosecution, leaving the government to argue issues of responsiveness and privilege without being fully informed, the judge said, Stewart’s proposal called for the special master to withhold any final determinations on those issues, and instead “merely make recommendations to the Court, subject to objection and de novo review.” Koeltl noted that even though Stewart argued a special master was needed because the likely existence of attorney work product and privileged attorney-client communications raised special Sixth Amendment concerns, “the privilege is itself based on policy, rather than in the Constitution.” “On the other hand,” the judge continued, “the Sixth Amendment guarantees criminal defendants the right to counsel and supports an expectation of privacy regarding a defendant’s legitimate communications with the defendant’s attorney.” “The search of the law offices of a criminal defense attorney can thus raise Sixth Amendment concerns that would not otherwise be present in the search of the offices of a civil litigation attorney,” he said. “There is no doubt that appointment of a Special Master would help address these concerns,” he said. While the U.S. Attorney Manual section on searches of attorney’s offices clearly “contemplates” the use of a special master, he said, the government argued that the Southern District has traditionally opted to use “privilege teams, and has done so without controversy. “It is nevertheless unclear whether there is any comparable case in this District that involved a law office search of a criminal defense attorney with the seizure of other criminal defense attorney files, as in this case,” he said. “Moreover, at least three courts that have allowed review by a government privilege team have opined, in retrospect, that the use of other methods of review would have been better.” OTHER ATTORNEYS’ CLIENTS One concern expressed by the judge was that the documents seized April 9 are “likely to contain privileged materials relating not only to unrelated criminal defendants but also to the clients of attorneys other than the defendant, for whom there has been no showing of probable cause of criminal conduct.” A problem he saw being posed by having the government’s privilege team conduct the initial review was that there was no way to ensure the two Assistant U.S. Attorneys on the reviewing team have no involvement with current or future prosecutions of other attorneys’ clients, whose names are not presently known by the government. Furthermore, he said, “both parties agree that the computer materials seized are likely to contain a broad range of files and information that are not in any way responsive to the warrant.” And as for the government’s concern over the delay posed by the appointment of a special master, Koeltl said the materials seized were not voluminous. Finally, he said, Stewart assured the court she could produce a privilege log within two to three weeks, and she anticipated asserting a privilege on only between 5 percent and 10 percent of the materials. Assistant U.S. Attorneys Joseph Bianco and Christopher Morvillo are prosecuting Stewart. Assistant U.S. Attorneys Gary Stein and Christopher J. Clark serve on the privilege team and argued against the appointment of a special master. Michael Tigar represents Stewart.

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