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If appointed, an impartial “special master” would face a politically fraught task in deciding whether documents seized from President Donald Trump’s personal attorney are protected by the attorney-client privilege, attorneys who have served in the role told Bloomberg Law.
In the week since the FBI seized attorney Michael Cohen’s files, President Trump and Cohen have fought to keep privileged materials out of the hands of federal prosecutors.
U.S. District Judge Kimba Wood has taken under advisement the decision of who should review the seized material before it is handed over to government attorneys. The U.S. Attorney’s Office for the Southern District of New York has requested that its own “taint team” of attorneys, who are not involved in prosecuting the case, conduct a privilege review. Meanwhile, Cohen’s attorney said that appointing an independent special master to conduct the review would be a better option.
At an April 16 hearing, Judge Wood left both options on the table and asked the parties to submit lists of proposed special masters. Cohen’s attorneys and the government have since proposed competing lists of candidates.
“I think the ‘usual’ outcome would be for the Southern District’s taint team to be tasked with the privilege review,” Maura Grossman told Bloomberg Law. Grossman, a research professor at the University of Waterloo and an e-discovery attorney and consultant in New York, has served as special master in past cases.
“This case is not unusual from a legal perspective, but is unusual due to its political context; its unique challenges are more likely to arise from the political context of the investigation, rather than from the legal questions involved,” she said.
Dealing with potential backlash from either side of the political spectrum could be a challenge for the special master.
“Among the biggest challenges in this case, and the main reason a special master would potentially be appointed by Judge Wood, is avoiding the appearance of bias, especially when the parties are of such high profile and the matter of great public interest,” Andy Wilson, who is the Chief Executive Officer of San Francisco-based e-discovery software provider Logikcull , told Bloomberg Law.
“I can’t imagine a more thankless, time-pressured task, or one facing greater critical scrutiny,” Craig Ball, discovery law professor at the University of Texas at Austin Law School, told Bloomberg Law in an email. Ball has frequently served as a court-appointed special master in cases involving electronic discovery and computer forensics.
“The master will be vilified by one or both sides, no matter the competence, care, integrity and effort put forward. But, that’s the job. You help the Court do justice. It’s not a popularity contest,” he said.
“The special master would presumably be tasked with reviewing the seized materials (including electronically stored information, such as email, word-processing documents, text messages, images, and recordings) to determine whether or not they are subject to the attorney-client privilege, other forms of privilege, or attorney work-product protection,” Grossman said.“In doing so, the special master would need to consider the nature of the relationship between the author(s) and recipient(s) of the information, the nature of the content, and whether or not the content had been disclosed to third parties,” she said.
Often a key issue is determining what “hat” an attorney is wearing at time of the communication, Kevin Allen, Pittsburgh-based attorney at Eckert Seamans Cherin & Mellott, LLC, told Bloomberg Law. Allen has served as a court-appointed special discovery master to address privilege and work-product issues.
A special master in this case would have to decide on a document-by-document basis whether Cohen was acting as a lawyer or serving in some other role, such as providing business advice.
Among the thorny questions that a special master may be called on to decide is how to treat communications related to Cohen’s creation of a private Delaware limited liability company that he used to facilitate a $130,000 payment to adult film actress Stormy Daniels.
Daniels, whose real name is Stephanie Clifford, claims that Cohen made the payment to keep her from speaking up about her alleged tryst with the president in 2006.
The special master role could also entail making an assessment on whether privilege doesn’t apply under the “crime fraud exception” or has otherwise been waived, Ball said.
Under the crime-fraud exception, the attorney-client privilege is extinguished when a lawyer’s services are used to facilitate or conceal fraudulent or criminal activity. Additionally, privilege can be waived as to attorney-client communications that are disclosed to third parties.
“The Court is fully capable of making such determinations; however, judicial efficiency may dictate that the task be delegated to a qualified neutral because of the resources and tools required to accomplish the task” fairly and inexpensively, Ball said.
The parties involved would also likely be given an opportunity to challenge the special master’s recommendations so that the court can ultimately decide whether a document is protected by a privilege.
“The Master’s role certainly could be significant,” if the court gives deference to his or her recommendations, Ball said.
The specifics of how the special master would conduct the review would depend on the court’s appointment order, Ball said. The master might interact only with the court, or the court might entrust the master to hear the parties’ arguments on whether particular documents are covered by the privilege.
But the court would remain"the ultimate arbiter,” he said.
Cohen April 17 submitted his list of proposed special masters that include:
The government April 18 submitted its list, which included three former federal magistrate judges for the Southern District of New York:
The special master would need to be someone who is beyond reproach, and whose political leanings aren’t going to be subject to dispute or accusations of political bias, Allen said.
The court should also anticipate a request for digital forensics to recover deleted data, as well as allegations that data was altered or destroyed, Ball said.
“The Master will need to be qualified to address these issues, too.”
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