U.S. v. STEWART, (S.D.N.Y. 2002)

JOHN G. KOELTL, United States District Judge

On April 8, 2002, Lynne Stewart, Esq. (the "defendant") was indicted for conspiring to provide material support or resources to designated foreign terrorist organizations in violation of 18 U.S.C. § 2339B, providing such support and resources, conspiring to defraud the United States in violation of 18 U.S.C. § 371, and making false statements to federal officers in violation of 18 U.S.C. § 1001. The Indictment names three additional defendants. On that same day, the government obtained a warrant to search the defendant's law offices, which are part of a larger suite shared by her and four other criminal defense attorneys, for evidence and indicia of these alleged crimes. On April 9, 2002, agents entered the defendant's law offices and executed the warrant, seizing originals or copies of a number of documents, files, computers, diskettes and hard drives from her office and from the common areas of the suite.

The defendant now moves for the appointment of a neutral Special Master to review the items seized for privilege (including the applicability of any exceptions to any relevant privileges, such as the crime-fraud exception) and for responsiveness to the warrant so as to prevent the government from reviewing any materials that are either privileged or nonresponsive. The government has placed the disputed materials under seal and has agreed not to review any of them until the Court decides this motion.

I.

Unless otherwise indicated, the following facts are either undisputed, are matters of public record or have been set forth in the parties' affidavits and supporting papers, and are accepted as true for the purposes of this motion.

A.

The defendant, Lynne Stewart, is a criminal defense attorney whose offices are located in New York County and who has represented numerous defendants or potential defendants in criminal cases. One of these clients, Sheikh Abdel Rahman, was convicted in 1995 of engaging in a seditious conspiracy to wage a war of urban terrorism against the United States, which included the bombing of the World Trade Center in 1993 and a failed plot to bomb a number of New York City landmarks, including the United Nations, the FBI Building in lower Manhattan and the Lincoln and Holland tunnels. See generally United States v. Rahman, 189 F.3d 88 (2d Cir 1999). During his time in prison, Sheikh Rahman has allegedly remained one of the principal spiritual leaders of the so-called "Islamic Group" ("IG"), as well as a high-ranking member of jihad organizations based in Egypt and elsewhere. (Ind. ¶¶ 1-4.)

Beginning in 1997, the Bureau of Prisons, acting at the direction of the Attorney General, placed Sheikh Rahman under Special Administrative Measures ("SAM's"), pursuant to 28 C.F.R. § 501.3, which were allegedly designed to sharply curtail his ability to communicate with other members of the IG and with the media in order to protect "persons against the risk of death or serious bodily injury" that might otherwise allegedly result. (Ind. ¶ 6.) After Sheikh Rahman's conviction and after these SAM's were put into effect, the defendant has continued to meet with the Sheikh and communicate with him on occasion, allegedly in her capacity as one of his attorneys.

B.

The defendant's law office is located at 351 Broadway, Suite 3F, in Manhattan, New York. (Affirmation of Susan V. Tipograph, Esq., dated April 26, 2002 ("Tipograph Aff.") ¶ 2; Affirmation of Federal Bureau of Investigation Special Agent Tracy Stumpf dated May 6, 2002 ("Stumpf Aff.") ¶ 1.) The office is part of a larger suite, which she shares with four other solo practitioners, Sabrina Shroff, Geoffrey Stewart, Susan V. Tipograph and Donald Yannella, all of whom specialize in criminal defense work and all of whom have both active and closed cases in which the United States Attorney's Office for the Southern District of New York is the prosecuting agency, and where the Federal Bureau of Investigation ("FBI"), the Joint-Terrorist Task Force and/or the New York City Police Department are the law enforcement agencies involved. (Tipograph Aff. ¶¶ 3, 8.) These attorneys each have individual offices in the suite, as does a paralegal who works as an independent contractor for the defendant, Geoffrey Stewart and a number of other attorneys who are not located at 351 Broadway. ( Id. at ¶ 2; Stumpf Aff. ¶ 2.) There is a computer in the paralegal's office. (Tipograph Aff. ¶¶ 2, 7.)

The suite also has a common area, where a receptionist/secretary ordinarily sits. There is a working computer in this common area, as well as a non-working piece of networking hardware that once linked the computers of the defendant, Geoffrey Stewart and the paralegal. Before the search in this case, the receptionist/secretary had used the working computer in the common area to perform legal work for both the defendant and Geoffrey Stewart. The receptionist also answered the telephones for the defendant, Geoffrey Stewart, Sabrina Shroff, and, on occasion, Donald Yannella. The defendant has sometimes independently prepared legal documents and attorney work product on the working computer in the common room, as have Geoffrey Stewart, Sabrina Shroff and Donald Yannella. ( Id. at ¶ 3.)

The suite has a small common library with a copy machine, which is also a de facto storage room for boxes and files relating to cases and other legal matters handled by the defendant and Geoffrey Stewart. The suite also has another common room used for storage and office supplies, which contains files belonging to these same two attorneys. ( Id. at ¶ 4.)

C.

On April 8, 2002, Chief Magistrate Judge Ellis issued a warrant for the premises known and described as the Law Offices of Lynne Stewart, Geoffrey Stewart Sabrina Shroff, 351 Broadway, Suite 3F, New York, New York. The search warrant authorized the seizure of evidence and indicia of the crimes charged in the Indictment. The warrant also contained an attachment setting forth a more specific and non-exhaustive list of items to be retrieved, including any and all files, books, records, press releases, press briefings, press statements, documents, appointment books, calendars, telephone-address books and lists, telephone logs, message books or slips, rolodexes, financial records, billings, computers, hard drives, computer diskettes, other magnetic storage media and any other files, data or information contained on these computer devices, including e-mails, relating to, referring to, or regarding either Sheikh Rahman, co-defendants Ahmed Abdel Sattar or Mohammed Yousry, the IG or other known IG members. (See Search Warrant dated April 8, 2002, Ex. A at 45-46, attached as Ex. B to Affirmation of Assistant United States Attorney Gary Stein dated May 6, 2002 ("Stein Aff.").) The attachment also allowed for the seizure of "[a]ny and all documents, books, literature, writings or other media (including, but not limited to, audio cassette tapes, compact discs, DVD, and/or video tapes) concerning or relating to IG, al Qaeda, any other foreign terrorist organization, or any entity thereof." Id. at 46.

On April 9, 2002, members of the Joint Terrorist Task Force, acting in tandem with representatives of the FBI and the New York City Police Department, arrived at the defendant's law offices in Manhattan and executed the warrant. (Tipograph Aff. ¶¶ 5-6.) The search was conducted by a special team of officers who had been walled off from the prosecution team in this case in order to prevent the prosecution from viewing any privileged materials or learning any privileged information that was uncovered on-site during the search. (Stein Aff. ¶ 10.) This team was instructed to direct any legal questions relating to privilege determinations to a special Assistant United States Attorney who had also been walled off from the prosecuting team. (Stein Aff. ¶¶ 10-11.) The search team limited its search to those areas that were used by the defendant — including the paralegal's office and the common areas — and did not search or take any materials from the individual offices of the other attorneys in the suite. (Stumpf Aff. ¶ 3.)

In the course of their search, the agents seized (a) three boxes of materials, including documents, folders, ledgers, notebooks, address books, calendars, and rolodexes apparently relating to, referring to, or regarding the individuals or groups named in the warrant; (b) one box of audiotapes apparently sent from a Bureau of Prisons facility where Sheikh Rahman was incarcerated; (c) copies of the hard drives of the computer in the common area, the computer in the paralegal's office and the networking hardware from the common area, all of which had also been used to perform legal work for clients of other attorneys in the suite or for clients of the defendant who were not identified in the warrant and who likely have no relation to this case; (d) two older computer hard drives that could not be copied on-site and that had also been used by the defendant, Geoffrey Stewart and perhaps other attorneys; and (e) approximately twenty-eight (28) 3.5" floppy disks. (Tipograph Aff. ¶ 7; Stein Aff. ¶ 13; Stumpf Aff. ¶ 5 Ex. A.)

D.

The defendant was arraigned on April 9, 2002, and, at her arraignment, requested that the Court appoint a neutral Special Master to review the materials seized from her law suite for privilege and responsiveness, rather than allowing the government to perform this review in the first instance. Acknowledging that there are potentially special issues raised by the law office search in this case, the government, agreed to seal the materials until the parties could either agree upon a proper procedure for reviewing them or the Court could decide a motion by the defendant. (Stein Aff. ¶¶ 11-12.) This motion followed.

II.

The issue presented in this motion is a narrow one. As both parties rightfully agree, law enforcement officials may, in certain circumstances, search law offices pursuant to a valid warrant that is supported by probable cause that an attorney has been engaging in criminal activity and that the law offices in question contain evidence of this suspected wrongdoing. See, e.g., Andresen v. Maryland, 427 U.S. 463, 465-67, 478-84 (1976); United States v. Mittelman, 999 F.2d 440, 445 (9th Cir. 1993); In re Impounded Case (Law Firm), 840 F.2d 196, 200 (3d Cir. 1988); Klitzman, Klitzman Gallagher v. Krut, 744 F.2d 955, 959 (3d Cir. 1984); Nat'l City Trading Corp. v. United States, 635 F.2d 1020, 1025-26 (2d Cir. 1980); cf. also Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978). Both parties also rightly agree that law office searches raise special concerns, which impose a need for heightened care, due to the fact that law offices often contain privileged attorney-client materials and work product. See, e.g., United States v. Derman, 211 F.3d 175, 181 (1St Cir. 2000) (collecting cases);Mittelman, 999 F.2d at 445; Klitzman, 744 F.2d at 958; Nat'l City Trading Corp., 635 F.2d at 1026 ("[A] law office search should be executed with special care to avoid unnecessary intrusion on attorney-client communications . . . ."). The defendant also refrains from raising any Fourth Amendment challenges to the search and seizure at this stage: the defendant concedes — though only for the purposes of this motion — that the government obtained a valid warrant, which was supported by probable cause, to search the defendant's law office, and that the search and seizure itself did not exceed the scope of the authority granted by the warrant. The defendant also does not raise any Fifth Amendment arguments.

The government, in turn, concedes that the materials seized — and, in particular, the computer materials — are likely to contain privileged materials relating to the representation of criminal defendants who are unrelated to this case, some of whom have been or are currently clients of attorneys other than the defendant. (Stein Aff. ¶ 16(b), (e).) The government also concedes that the Court has the authority and discretion to decide whether to appoint a Special Master to conduct an initial review of the seized materials for privilege and responsiveness or whether to allow the government's privilege team to conduct this review. (See Tr. dated 5/31/02 at 22.) Indeed, the United States Attorney's Manual ("USAM"), issued by the Department of Justice, lists review by a special master as one method of reviewing documents seized from a law office. See USAM § 9-13.420, at § F, attached as Ex. A to Stein Aff.

Hence, the issue in this motion is whether, in view of the special circumstances of this case — including the search of the office of a criminal defense attorney who represents defendants unrelated to any of the allegations in this case and the seizure of at least computerized information belonging to lawyers who are also unrelated to this case, and who represent clients unrelated to this case — the Court, in the exercise of its discretion, should have a Special Master perform an initial review of the seized materials, as the defendant proposes, or should have a government privilege team do it, as the government proposes.

A.

It should be noted that the briefs on both sides do not fully come to terms with the actual proposals made by the other side. For example, 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. 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. (Stein Aff. ¶¶ 14, 16-17.) Any disputes between the parties would then be decided by the Court, not the prosecution. (Stein Aff. ¶¶ 5, 17.)

Similarly, the government argues that it would be severely prejudiced if the defendant were allowed to review the materials before the government had access to them because the defendant could then make claims of privilege and non-responsiveness to the Special Master, based on the content of the documents, without the government having any opportunity to object in an informed manner. However, under the defendant's proposal, the Special Master would not make any final determinations over the government's objection and would, instead, merely make recommendations to the Court, subject to objection and de novo review. Some or all of the materials that the defendant seeks to protect might be turned over to the prosecution, through this proposed procedure, without any need for governmental briefing. Moreover, nothing about the appointment of a Special Master would preclude the Court from deciding at a later date to turn some or all of the remaining materials over to a government privilege team, or to use any other procedure that may be appropriate, to help decide any remaining disputes, if briefing or argumentation would be helpful in light of the content of the documents.

The defendant argues that a Special Master is required to perform an initial review of the materials in this case due to the likely existence of privileged attorney-client communications and work product, which, in the defendant's view, raise special Sixth Amendment concerns in this case because the law offices that were searched were those of criminal defense attorneys. The attorney-client privilege is "the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (citing 8 J. Wigmore, Evidence § 2290 (McNaughton rev. 1961)); see also Swidler Berlin v. United States, 524 U.S. 399, 403 (1998) (The purpose of the privilege is to "encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.") (internal quotation marks omitted). However, the privilege is itself based in policy, rather than in the Constitution, and therefore it alone "cannot stand in the face of countervailing law or strong public policy and should be strictly confined within the narrowest possible limits underlying its purpose."United States v. Goldberger Dubin, P.C., 935 F.2d 501, 504 (2d Cir. 1991). On the other hand, 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. See, e.g., DeMassa v. Nunez, 770 F.2d 1505, 1507 (9th Cir. 1985) (per curiam) [hereinafter DeMassa II]; United States v. Neill, 952 F. Supp. 834, 839-40 (D.D.C. 1997) (outlining circumstances in which violations of a criminal defendant's attorney-client privilege can raise Sixth Amendment concerns); United States v. Skeddle, 989 F. Supp. 890, 896-97 (N.D. Ohio 1997) (noting that special Sixth Amendment concerns arise in the search of law offices of criminal defense attorneys); United States v. Chuang, 696 F. Supp. 910, 915 n. 5 (S.D.N.Y. 1988). 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. There is no doubt that appointment of a Special Master would help address these concerns.

The government responds that there is no constitutional requirement that a Special Master be appointed in this case and that the Court should allow a government privilege team to perform an initial review for privilege and responsiveness for three main reasons. First, the government argues that a government privilege team has often been used in this District without any reported abuses. Second, the government argues that its proposed review procedures are adequate to protect any privileges or Sixth Amendment interests that arise in this case. Third, the government argues that it would be prejudiced by the appointment of a Special Master in a number of ways that would render the defendant's proposal inappropriate.

B.

The government argues that it has a standard procedure in place for handling law office searches that is meant to provide the special care that is required in conducting these kinds of searches while also meeting the countervailing need for the effective investigation of suspected criminal wrongdoing. The United States Attorney's Manual, which is issued by the Department of Justice, provides a number of highly detailed guidelines relating to the searches of law offices of attorneys who are the subjects of a criminal investigation. See USAM § 9-13.420. The Manual states that during the course of such a search:

While every effort should be made to avoid viewing privileged material, the search may require limited review of arguably privileged material to ascertain whether the material is covered by the warrant. Therefore, to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy, a "privilege team" should be designated, consisting of agents and lawyers not involved in the underlying investigation.

Id. at § E. With regard to the subsequent review of any seized materials, the Manual indicates that a number of issues should be considered to assure that the review is conducted with the appropriate care, including "who will conduct the review, i.e., a privilege team, a judicial officer, or a special master" and "[w]hether all documents will be submitted to a judicial officer or special master or only those which a privilege team has determined to be arguably privileged or arguably subject to an exception to the privilege." Id. at § F. The Manual recommends, more generally, that review procedures should be adopted that are "consistent with the practice in [the relevant] district, the circumstances of the investigation and the volume of the materials seized." Id.

Although the USAM clearly contemplates the possibility of review by a special master or judicial officer, the government argues that in this district the United States Attorney's Office has traditionally used a privilege team both to conduct law office searches and to review the documents seized. (Stein Aff. ¶¶ 5-6.) 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. The government also concedes that it is unaware of any judicial decision in this District that has compared the relative merits of using a Special Master and using a government privilege team in these circumstances and has identified use of a privilege team as the better procedure. (Tr. dated 5/31/02 at 24.)

Moreover, at least three courts that have allowed for review by a government privilege team have opined, in retrospect, that the use of other methods of review would have been better. See Skeddle, 989 F. Supp. at 898 n. 6 ("By hindsight, a safer course would have been to have given notice to the defendants . . . and the lawyers whose offices were searched to show cause within a specified period why the materials should not be released to the government.") (citing Hartford Assocs. v. United States, 792 F. Supp. 358, 367 (D.N.J. 1992)); United States v. Hunter, 13 F. Supp.2d 574, 583 n. 2 (D. Vt. 1998) ("It may have been preferable for the screening of potentially privileged records to be left not to a prosecutor behind a `Chinese Wall, but to a special master or the magistrate judge.'") (citing In re Search Warrant for Law Offices Executed on March 19, 1992, 153 F.R.D. 55, 59 (S.D.N.Y. 1994)); Neill, 952 F. Supp. at 841 n. 14 (indicating that "the more traditional alternative" is to "submit disputed documents under seal for in camera review by a neutral and detached magistrate or by court-appointed special masters") (collecting cases in which procedure with in camera review was used); see also Klitzman, 744 F.2d at 962 (ordering return of files to law firm that had employed the defendant attorney and recommending possible procedure under which the government could request any of these materials, the law firm could object to producing them, and a special master could decide these objections after an in camera review, with both parties retaining the right to appeal the special master's determinations to the district court).

In two reported decisions that detail the methods employed for the review of materials seized from the law offices of a criminal defense attorney, courts have used a Special Master. In United States v. Abbell, 914 F. Supp. 519 (S.D. Fla. 1995), the court found that the "responsiveness and privilege issues raised in the proceedings [were] exceptional and warrant referral to a Special Master," id. at 520, who was to decide any initial claims of privilege raised by the defendant and issue a report and recommendation that could be objected to by both parties and was subject to de novo review by the Court. Id. at 520-21. InDeMassa v. Nunez, 747 F.2d 1283 (9th Cir. 1984), the Court of Appeals for the Ninth Circuit described, without initially ruling upon, the review procedure adopted by a magistrate judge in connection with a search of a criminal defense attorney's law office. In that case also, the magistrate judge appointed a special master to review the files. See also DeMassa II, 770 F.2d at 1505-08.

Finally, as both parties agree, this case is exceptional in that the documents seized on April 9, 2002 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. The privilege and responsiveness concerns raised by this class of materials are therefore exceptional, and the likely existence of materials that fall into this class speaks in favor of appointment of a Special Master.

C.

The government argues that its proposed procedures are nevertheless sufficient to safeguard the privileges and Sixth Amendment interests that are at stake in this case. There are, however, certain problems with the use of the government privilege team to review the documents at issue in this case in the first instance. There is, for example, no way to ensure that the two AUSA's on the privilege team have not and will not have any involvement with cases involving the clients of other attorneys in the defendant's law suite, the names of whom are not presently known by the government. Moreover, 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. Although the government may be able to winnow these materials down a great deal without looking at the content this computer information by employing key word searches, looking at the structures of the directory trees and using other related technical methods, (see Stein Aff. ¶ 16), it is impossible to know without reviewing these materials more carefully whether these techniques might nevertheless inadvertently pick up some non-responsive and privileged materials. At oral argument, the defendant credibly raised a number of ways in which this might occur, including the possibility that a key word search for a term like "Rahman" might pick up unrelated criminal defendants' privileged correspondence in which they noted to the defendant that they had learned about her practice through her representation of Sheikh Abdel Rahman. (Tr. dated 5/31/02 at 45-46; cf.also Tr. dated 5/31/02 at 6 (similar concerns raised in relation to message books and other non-computerized materials).

In any event, it is important that the procedure adopted in this case not only be fair but also appear to be fair. The appearance of fairness helps to protect the public's confidence in the administration of justice and the willingness of clients to consult with their attorneys. As Judge Brieant explained, albeit in dicta, in In re Search Warrant for Law Offices Executed on March 19, 1992:

reliance on the implementation of a Chinese Wall, especially in the context of a criminal prosecution, is highly questionable and should be discouraged. The appearance of Justice must be served, as well as the interests of Justice. It is a great leap of faith to expect that members of the general public would believe that any such Chinese wall would be impenetrable; this notwithstanding the honor of an AUSA.

153 F.R.D. at 59; see also Neill, 952 F. Supp. at 834 n. 14 ("[T]here is no doubt that, at the very least, the `taint team' procedures create an appearance of unfairness.").

D.

The government argues, finally, that the Court should not appoint a Special Master because this procedure would prejudice the government in a number of ways. The government argues that use of a Special Master would cause needless delays in the government's investigation and prosecution in this case. In the government's view, in order properly to winnow out those documents that are privileged and not responsive to the warrant, a Special Master would need to be privy to confidential information relating to the government's investigation, including its internal list of alleged IG members. The government has therefore indicated that a Special Master may have to obtain security clearance before conducting an accurate review, and the government argues that this process would likely cause further unnecessary delays in this case. (See Tr. dated 5/31/02 at 38-41.)

Second, the government argues that it would be at a disadvantage if it were unable to review the contents of any documents that the defendant claims to be privileged in order to decide whether to object to the privilege assertions and in order to raise any objections in an intelligent manner. Finally, the government raised a number of additional concerns at oral argument. In particular, the government argued that it would be prejudiced in its investigations if it were prevented from viewing evidence of criminal wrongdoing that was not technically responsive to the warrant but that fell within the plain view exception to the need for a warrant. The government also raised in passing a number of concerns that a Special Master may not be as diligent, competent or impartial as the government would be in performing the review.

These concerns are not persuasive in this case. Unlike a number of cases in which the use of a Special Master has caused some delay, the materials seized in this case — which include principally three boxes of documents, twenty-eight floppy disks, and five computer hard drives — are not voluminous, and there is no reason why a Special Master, acting with the help of the parties, could not expeditiously winnow out and/or redact those materials that are responsive to the warrant while still protecting the legitimate privileges of unrelated third parties. Compare DeMassa, 747 F.2d at 1285 (six boxes of documents reviewed in four days). The defendant stated at oral argument that she could produce a privilege log within two to three weeks of obtaining copies of the materials, and that only a small percentage — perhaps 5-10% — are likely to be materials over which she will assert a privilege. (Tr. dated 5/31/02 at 19.) The process of review would be greatly expedited by a privilege log that helped winnow down the class of potentially disputed documents in this case in such a timely manner.

At the same time, there is nothing about the appointment of a Special Master that would prevent the Special Master from conferring with the parties and employing techniques suggested by the government to winnow out those documents that the government would have deemed non-responsive in performing its own initial searches of the computer materials. (See, e.g., Stein Aff. ¶ 16 (outlining methods for winnowing down responsive documents from the hard drives). The identification of this class of materials would also greatly help narrow the genuine disputes among the parties. The Court also notes, in this regard, that there is no indication that the defendant seeks the appointment of a Special Master for the purposes of delay, rather than to protect the privileges of unrelated criminal defendants. Moreover, the parties have indicated that the other discovery in this case is likely to be extensive, so that the review of the disputed materials should not inhibit the general pace of this case.

It is also possible to address a number of the government's other concerns by identifying a Special Master who will be able to obtain security clearance in an expedited manner, who is knowledgeable about investigative techniques, and whose impartiality, integrity, competence, and diligence are beyond reproach. To that end, the Court will appoint as Special Master Gary P. Naftalis, Esq., a current named partner at Kramer, Levin, Naftalis Frankel, and a prominent criminal defense attorney who was formerly an Assistant United States Attorney and the Deputy Chief of the Criminal Division of the United States Attorney's Office for the Southern District of New York. Mr. Naftalis will also be able to employ the resources of his firm as necessary and appropriate.

Finally, nothing about the appointment of a Special Master need prejudice the government in any of the other ways asserted. Although the government will not have the opportunity to review any of the documents for which a privilege has been asserted before raising objections to the Special Master's initial determinations, a number of these determinations may well be made in the government's favor, thus obviating any need for the government to review the materials initially. Compare, e.g., Does I Through IV, 926 F.2d 847, 858-59 (9th Cir. 1991) (reviewing materials seized in a law office search in camera and affirming district court's in camera determination that none were privileged). Moreover, this Court will decide de novo any objections to the decisions of the Special Master, and the Court will then be able to decide what the best procedures will be to decide any objections. Nothing about the appointment of a Special Master at this stage forecloses the Court from allowing a privilege team to review some or all of these materials at that later stage, or from using any other procedure that might be appropriate, to assist the Court in accurately deciding any disputes if and when the issue arises. Similarly, if the Special Master were to identify any materials that are not-responsive to the warrant but that arguably fall within some exception to the warrant requirement, such as the plain view exception, because they contain evidence of criminal wrongdoing for which there is no valid privilege, the Special Master may seal those documents for further review by the Court, and the Court will decide how to handle any disputes over these materials if and when the issue arises.

D.

In sum, this case presents a number of extraordinary circumstances that favor the appointment of a Special Master to perform an initial review of the materials for privilege and responsiveness. The government has raised a number of countervailing concerns, but none that cannot be accommodated within a reasonable set of procedures that is overseen by the Special Master in this case. Hence, the defendant's motion should be granted.

CONCLUSION

For the foregoing reasons:

1. Gary P. Naftalis is appointed as Special Master to review the documents seized in the April 9, 2002 search of the defendant's law office. The Special Master shall have the authority to review all documents and computer data seized to determine (a) whether the documents and data are responsive to the search warrant or fall within some valid exception to the warrant requirement, such as the plain view exception; (b) whether the materials are protected from disclosure because of attorney-client privilege, the work product doctrine, or any other relevant privilege; and (c) whether there are any valid exceptions to any applicable privileges, such as the crime-fraud exception. The government will pay the costs of the Special Master.

2. To expedite this review, the government is directed (without reviewing the substance of any documents or computer information) to make two copies of the entire set of documents and computer data that were seized, and, as promptly as possible, to transfer one complete set of copies to the Special Master. The government is directed to provide the defendant with one complete set of copies of the documentary materials seized and to return the two original hard drives to the defendant within this same time frame. The government should retain a complete set of the original documents and of the copies of the computer materials for its records, although the government is directed to place these materials under seal and not to review them.

3. The Special Master is authorized to meet with the parties and to employ any procedures for review that may help ensure an accurate, impartial and expeditious review of the materials, such that all responsive and non-privileged materials are produced to the government as promptly as possible. To that end, the Special Master may direct the defendant to produce a privilege log within a reasonable time period. The Special Master may also meet with the parties at will and may avail himself of any aid or expertise that they may have, or any other sources of aid and expertise that he may need, in order to perform the review appropriately and in a manner that is consistent with the other concerns raised in this Opinion and Order. The parties are directed to work with the Special Master in good faith to expedite these proceedings and to ensure their integrity and accuracy.

4. The Special Master is directed to hand over to the prosecution any materials that the parties agree are responsive and not privileged (or fall within an exception to any relevant privilege) and to winnow down the class of computer materials that the government agrees it would not review in substance after a cursory review for responsiveness. With regard to the remaining documents, the Special Master is directed to issue a Report and Recommendation identifying any documents that are only arguably privileged or responsive and deciding any disputes between the parties concerning privilege or responsiveness. The parties may object to the Special Master's Report and Recommendation within seven (7) days of its issuance, and the Court will review these objections de novo. The Court reserves the right to employ any appropriate procedures at that point to decide any disputes between the parties.