Subject: Confidential - Time Sensitive
From: "Mesires, George R." <[email-masked]>
To: <[email-masked]>
Cc: "MacPhail, Michael R." <[email-masked]>, "Klinefeldt, Nicholas A." <[email-masked]>
Date: Wed, 17 May 2017 16:17:07 +0000

Hunter - let us know when you are available for a call today. George

Hunter:

As we have discussed, we were contacted by the US Attorney's Office regarding the subpoenas that it executed for Devon's and Sebastian's emails in connection with its prosecution of Devon. The Government and Devon are in a dispute concerning the review of the documents, especially concerning potentially attorney-client communications.

As discussed below, Devon has included your name as a search term to use to identify potentially attorney-client communications. Devon is suggesting that because you are a lawyer, you could have potentially rendered legal advice, and he could assert the attorney-client privilege over those emails.

The Government doubts that you had an attorney-client relationship with Devon, but has requested that we advise them whether you contend that you ever provided any legal advice to Devon.

Here is a summary of the background and our recommendation:

Background:

·         The Government executed two search warrants against Google and Apptix for emails covering the time period Jan 2015 - May 2016 from four accounts: two from Devon (including [email-masked]<mailto:[email-masked]>) and two from Sebastian.

·         Google provided notice to Devon about the search warrant. After receiving the notice from Google, Devon made a motion to delay the document production and search of the emails by the Government until there is an appropriate protocol in place to address, among other things, attorney-client communications.

o   Devon wants to withhold as many documents as possible from the Government Thus, he wants to cast the widest net possible to capture all potential attorney-client communications.

o   Devon proposed to conduct the search of documents as follows:

§  Devon's counsel would run search terms against the documents and documents would be spilt into two batches: those that hit on search terms and those that didn't. Devon identified about 150 search terms - names and phrases that are intended to pick up potentially privileged information. Devon included the term "biden" "hunter" "hbiden" and "[email-masked]<mailto:[email-masked]>"

§  Devon would produce to the Government those documents that did not include a hit on a search term.

§  For the documents that did hit on the search terms, Devon's counsel would conduct the privilege review. Non-privileged documents would be produced; privileged documents would be withheld and logged. To the extent that there is a dispute about Devon's assertion of the attorney-client privilege, it would ultimately be adjudicated by the Court.

o   The Government wants a different protocol:

§  The Government would run the search terms against the documents. If the government rejects a search term, it would be subject to further discussion between Devon and the Government.

§  A "wall" Government lawyer, either individually or as part of a "team," would review for privilege so the prosecution team would not become tainted.

§  If the "wall" attorney concluded that the docs are not privileged, then those documents would be released to the prosecution team. If the "wall" attorney conclude that the documents are privileged, then the documents will be withheld from the prosecution team.

Considerations & Recommendation:

·         Devon's inclusion of your name as a potential source of legal advice is obviously the most broad reading he could take and is doing so in an abundance of caution.

·         If you are clear that you never gave legal advice to Devon, then we recommend telling the Government as such.

o   In that case, Devon's emails with you during that time period may be reviewed by the prosecution team (depending on whether Devon still contends that he relied on your purported legal advice even if you don' think you rendered any), as opposed to by a Government's "wall" attorney (or, if the Government agrees, by Devon's attorney).

·         However, if you are not clear on this issue and you cannot definitively say that you never gave legal advice to Devon, then we think we need to tell the AUSA the following:

o   As a general matter, Hunter does not believe he was acting as a lawyer for Devon Archer; but, without seeing the emails, we cannot say there was never an instance where Hunter provided legal advice to Devon.

§  This would at least keep your emails with the "wall"  team as opposed to the prosecution team for the time being until a further privilege review is performed. If ultimately it is determined that emails between you and Devon are not privileged, they will be reviewed by the prosecution team.

·         The risk with this approach is  that there could be a perception that you are cooperating with Devon and/or creating additional obstacles for the Government.

·         Also, we want  to confirm that you have not received any notices from any internet service provider that your emails have been requested by the government. That would be good to monitor as we go forward.

Please let us know your thoughts and whether you would like to discuss this issue. Otherwise, the Government is anxious for a response and wants us to revert asap.

Thank you.

George

George R. Mesires
Partner
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