Case 1:18-cr-00693-RMB Document 75 Filed 05/07/19 Page 1 of 24

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------------x
UNITED STATES OF AMERICA,
:
:
-v.:
:
RAMSES OWENS,
:
a/k/a “Ramses Owens Saad,”
:
DIRK BRAUER,
:
RICHARD GAFFEY,
:
a/k/a “Dick Gaffey,” and
:
HARALD JOACHIM VON DER GOLTZ,
:
a/k/a “H.J. von der Goltz,”
:
a/k/a “Johan von der Goltz,”
:
:
Defendants.
:
------------------------------------------------------------------------x

18 Cr. 693 (RMB)

Oral Argument Requested

MEMORANDUM OF LAW IN SUPPORT
OF RICHARD GAFFEY’S MOTION FOR AN ORDER
COMPELLING THE GOVERNMENT TO IDENTIFY
THE DOCUMENTS IT INTENDS TO USE AT TRIAL
HOGAN LOVELLS US LLP
William J. Lovett
100 High Street, 20th Floor
Boston, MA 02110
Telephone: (617) 371-1007
Robert B. Buehler
390 Madison Avenue
New York, NY 10017
Telephone: (212) 918-3261
Fax: (212) 918-3100
Attorneys for Defendant
Richard Gaffey

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TABLE OF CONTENTS
Page

PRELIMINARY STATEMENT .................................................................................................1
BACKGROUND ........................................................................................................................2
The Government’s Production of Discovery .................................................................... 2
The Government’s Search of the Elder, Gaffey
& Paine Server and Computers............................................................................. 6
Communications with the Government ............................................................................ 9
ARGUMENT ............................................................................................................................ 10
Legal Standard............................................................................................................... 11
Discussion ..................................................................................................................... 13
CONCLUSION ......................................................................................................................... 19

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TABLE OF AUTHORITIES
Page(s)
Cases
United States v. Anderson,
416 F. Supp. 2d 110 (D.D.C. 2006) .............................................................................. passim
United States v. Bortnovsky,
820 F.2d 572 (2d Cir. 1987) ................................................................................................ 12
United States v. Cadden,
No. 14-10363-RGS, 2015 WL 5737144 (D. Mass. Sept. 30, 2015) ................................ 17, 18
United States v. Cannone,
528 F.2d 296 (2d Cir. 1975) ................................................................................................ 17
United States v. de la Cruz-Paulino,
61 F.3d 986 (1st Cir. 1995) .................................................................................................. 15
United States v. Giffen,
379 F. Supp. 2d 337 (S.D.N.Y. 2004) .................................................................................. 11
United States v. McDonald,
No. 01-CR-1168(JS)(MLO), 2002 WL 2022215 (E.D.N.Y. Aug. 6, 2002) .............. 12, 15, 17
United States v. Norman,
No. 05-CR-30015-DRH-4, 2005 WL 2739082 (S.D. Ill. Oct. 24, 2005) ......................... 12, 15
United States v. Poindexter,
727 F. Supp. 1470 (D.D.C. 1989) ........................................................................................ 13
United States v. Rickets,
No. 15-153, 2015 WL 9478136 (E.D. La. Dec. 29, 2015) .................................................... 13
United States v. Turkish,
458 F. Supp. 874 (S.D.N.Y. 1978) ........................................................................... 13, 15, 17
United States v. Upton,
856 F. Supp. 727 (E.D.N.Y. 1994)................................................................................ passim
United States v. Vilar,
530 F. Supp. 2d 616 (S.D.N.Y. 2008) .................................................................................. 11
United States v. Wey,
256 F. Supp. 3d 355 (S.D.N.Y. 2017) .................................................................................. 18
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Statutes
26 U.S.C. § 6103 ......................................................................................................................... 6
Other Authorities
Fed. R. Crim. P. 12(b)(3)..................................................................................................... 15, 18
Fed. R. Crim. P. 12(b)(4)(B) .............................................................................................. passim
Fed. R. Crim. P. 16(a)(1)(C)...................................................................................................... 15
Fed. R. Crim. P. 16(a)(1)(E) ............................................................................................... passim
Fed. R. Crim. P. 16(d) ............................................................................................................... 11

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Pursuant to Federal Rules of Criminal Procedure 12 and 16, Richard Gaffey respectfully
submits this memorandum of law in support of his motion for an Order directing the government
to comply with its discovery obligations.
PRELIMINARY STATEMENT
The government charged Mr. Gaffey and his co-defendant, Harald Joachim von der
Goltz, in a sweeping indictment alleging that they conspired to commit tax evasion, wire fraud,
and money laundering. The allegations involve numerous trusts and offshore companies, which
were principally formed in the 1980s by Mr. von der Goltz’s father. Not surprisingly, in a case
spanning more than three decades that involves complicated allegations of fraud, numerous
foreign and domestic bank accounts, and literally hundreds (if not thousands) of separate wire
transfers and other distributions of funds, there is a massive amount of documentation. This is
evident from the government’s production of more than 5.6 million pages of discovery materials.
The government’s production of millions of pages of discovery does not come close to
fulfilling its obligations under Rules 12 and 16 of the Federal Rules of Criminal Procedure.
Despite its protestations to the contrary, the government has engaged in a classic document
dump.

The government’s approach consists of providing the defense with an utterly

unmanageable number of documents and no roadmap or guide with which to navigate the page
upon page of frequently incomprehensible or irrelevant material. Instead of complying with its
obligation to identify the documents that it intends to use in its case-in-chief at trial, the
government leaves Mr. Gaffey with the impossible task of finding the evidentiary needle in the
documentary haystack.

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The federal rules governing discovery are designed to enable a defendant to prepare his
defense, make pretrial motions, and avoid surprise at trial. This is especially true in a years-long
tax evasion and money laundering investigation involving complicated financial transactions.
The government’s conduct compounds the problems caused by its large and
indiscriminate document production, and does not satisfy its obligations under the federal rules.
To the contrary, the government’s manner of producing discovery makes it extremely difficult, if
not impossible, for Mr. Gaffey to prepare a defense, make pretrial motions, and avoid surprise at
trial. For these reasons, the government should be ordered to identify the specific documents it
intends to introduce and rely upon at trial and to provide the defense with the search terms it used
to review seized materials.
BACKGROUND
In a letter dated January 7, 2019, which was sent three weeks after his arraignment in this
matter, Mr. Gaffey formally requested discovery from the government pursuant to Rules 12 and
16 of the Federal Rules of Criminal Procedure. See Declaration of Robert B. Buehler (“Buehler
Dec.”), Exhibit 1. In particular, Mr. Gaffey requested that the government identify (1) “any
evidence the government intends to offer or rely upon in its case-in-chief that: . . . Was
contained in or derived from the materials seized by the government during the search executed
at the offices of Elder, Gaffey & Paine, P.C. on August 8, 2017,” pursuant to Fed. R. Crim. P.
12(b)(4)(B), and (2) “all physical evidence in the government’s possession, custody, or control,
including papers, documents, data, photographs, tangible objects, or other materials that . . . the
government intends to use in its case-in-chief at trial,” pursuant to Fed. R. Crim. P. 16(a)(1)(E).
The Government’s Production of Discovery
In response to Mr. Gaffey’s discovery request, the government produced more than 5.6
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million pages of documents. See Declaration of Rory Cahill (“Cahill Dec.”), ¶ 4. The majority
of the government’s production, approximately 4.4 million pages, was seized by the government
when it executed a search warrant on Mr. Gaffey’s accounting firm, Elder, Gaffey & Paine, in
August 2017 (the “seized documents”). Cahill Dec., ¶ 4. The remaining 1.2 million pages
appear to have come from a variety of third-party sources, including banks and other financial
institutions, different investment funds, government agencies, foreign governments, and
individuals (the “third-party documents”). Cahill Dec., ¶¶ 3-4.
However, in its production letters to counsel for Mr. Gaffey, the government provided
exceedingly little information about exactly where the discovery came from or precisely what the
different categories of documents contain. Instead of providing anything resembling a detailed
and clear index of the literally millions of pages of documents that it was producing, the
government’s production letters provided only vague and unhelpful descriptions of the sources,
such as “Records Received from the IRS,” “Panama TIEA Returns,” “British Virgin Island
MLAT Response,” “Records Related to an Offshore Investment Conference,” and “Documents
Received from an Informal Request from Germany.” See Buehler Dec., Ex.s 2 and 3.
Despite the fact that many of these categories contain thousands and thousands of pages
of documents, the government provided no other information other than these general
designations, which provide little or no guidance either as to their content, their source, or both.
Indeed, the categories of materials that appear to be most critical to Mr. Gaffey’s defense are
lumped together under vague descriptions encompassing thousands or even tens of thousands of
pages. See Buehler Dec., Ex.s 2 and 3 (“Panama TIEA Returns,” 5 entries, 21,738 pages;
“Records Received from the IRS,” 5 entries, 3,806 pages; “Records Subpoenaed From Boston
Capital Ventures,” 11 entries, 349,511 pages).

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Further, while several categories appear to consist of responses to official requests for
documents from the government, neither the original request nor an index of the contents of the
category is provided. After receiving the government’s production, Mr. Gaffey made a written
request to the government for “[c]opies of MLAT, TIEA, and other formal or informal requests
for documents and information to foreign governments, entities and individuals.”

The

government refused to produce any documents in response to this request. See Buehler Dec., Ex.
7.
In addition, the government produced some of the materials in formats that make the
documents even harder to review. For instance, the government produced numerous PDFs, often
hundreds of pages long, that contain dozens or more separate documents. Cahill Dec., ¶ 10. No
descriptive information or metadata is provided for these PDFs apart from a single filename,
which makes the documents difficult to search or review without manually reviewing each page.
Id. The government provided no insight into how these documents were obtained, compiled or
created, besides the scant category descriptions listed in the production letters. Simply put, the
government’s document production provides virtually zero assistance to Mr. Gaffey in his
attempts to review and understand the contents of the many different document categories.
Moreover, not only did the government’s method of discovery make it extremely difficult
for Mr. Gaffey to assess and analyze the documents, a preliminary review of the materials
revealed serious and systematic flaws in the government’s discovery process. Among other
problems, the government’s massive production includes: (1) many irrelevant documents that are
unrelated to this case; (2) documents seized from the Elder, Gaffey & Paine server that involve
communications with clients and employees of the firm that fall outside the scope of Rule 16 and

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the search warrant; and (3) privileged communications seized from Elder, Gaffey & Paine, some
of which were apparently disclosed to the prosecution team.1
The government’s production is deficient in other significant respects, as well.

In

particular, the government made little or no effort to identify documents produced by third
parties that fall within the scope of Rule 16 and to separate the relevant documents from those
that are unrelated to the allegations in this case. This resulted in the government producing
thousands of irrelevant documents and will force Mr. Gaffey to waste considerable time wading
through those meaningless materials. For example, the government produced approximately
31,000 pages of documents obtained from Credit Suisse. Cahill Dec., ¶ 11. A search of those
documents revealed that only one-third of that total is related to this case and that the production
contains extensive communications between Credit Suisse and Mossack Fonseca entirely
unrelated to the parties named in the indictment. Id. Similarly, a production entitled “BVI
MLAT Response” consists of various financial statements, audit documents, reports, and other
materials from a disparate group of offshore entities, none of which appear to involve Mr. von
der Goltz or include any of the specific entities which the government alleges were owned by
Mr. von der Goltz. Id. ¶ 12.
Similar problems plague the production of documents from the IRS.

Of the 229

documents in that production, 29 of them have no relation to Mr. Gaffey or Mr. von der Goltz.
Cahill Dec., ¶ 13. Two of the IRS documents are spreadsheets containing lengthy lists of
companies and individuals, with no information provided as to the origins of these lists or their
significance. Id. Other documents consist of transcripts of Currency Transaction Reports and
1

As soon as Mr. Gaffey’s counsel realized that privileged materials had been included in the production and were
available to the prosecution team, counsel alerted the government. The government has since informed counsel that
it requested that the filter team claw back such communications until such time as the issue can be resolved. See
Buehler Dec., Ex. 4.

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IRS investigative reports pertaining to other individuals who may have done business with
Mossack Fonseca but have no apparent link to Mr. Gaffey or Mr. von der Goltz and his family.
Id.
More troubling is the production of the IRS Correspondence & Exam file for an
individual identified in the indictment as Client-1. Cahill Dec., ¶ 14. While that production
contains documents related to Client-1, it also includes tax return information for another
taxpayer from Kentucky with no apparent connection to this investigation. 2 Id. Notably absent
from the IRS production are documents that may be relevant to this case, including Client-1’s
Offshore Voluntary Disclosure Program submission that the government alleges was made in
late 2013 and may have been influenced in some way by Mr. Gaffey’s earlier advice to Client-1.
See Indictment, ¶ 31.
Significantly, these same issues are not limited to the Credit Suisse, BVI and IRS
productions; rather, they are found throughout the government’s wider production. Cahill Dec.,
¶ 15.
The Government’s Search of the Elder, Gaffey & Paine Server and Computers
On August 4, 2017, a search warrant was issued for the offices of Elder, Gaffey & Paine
that authorized the search and seizure of hard-copy documents and electronically stored
information (“ESI”) related to Mossack Fonseca, Mr. von der Goltz, and related entities. See
Buehler Dec., Ex. 5. The search warrant permitted the government to make mirror-images of
computer devices and storage media found at Elder, Gaffey & Paine and authorized the
government to review the ESI contained therein for information within the scope of the warrant.

2

The production of this material may even violate the disclosure provision of 26 U.S.C. § 6103, which prohibits the
unauthorized disclosure of tax return and tax return information.

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The search warrant also required the government to “make reasonable efforts to search only for
files, documents and other electronically stored information within the categories identified” in
the warrant. Id. Four days later, on August 8, 2017, IRS agents executed the search warrant and
seized, among other items, a mirror image of the main Elder, Gaffey & Paine computer server, as
well as mirror images of computers belonging to specific employees. See Buehler Dec., Ex. 6.
In the immediate aftermath of the government’s seizure of all ESI contained on the Elder,
Gaffey & Paine server, counsel for Mr. Gaffey was concerned that the government was now in
possession of information protected by the attorney-client privilege, as well as materials related
to clients of the firm that had nothing to do with the issues raised in the warrant. As a result, the
day after the warrant was executed, Mr. Gaffey’s counsel sent a letter to the prosecution team
requesting that the government institute appropriate taint procedures to identify only those
documents that fall within the scope of the search warrant and to segregate all privileged
communications. See Buehler Dec., Ex. 6. The letter put the government on notice that it had
seized privileged attorney-client communications, as well as files and communications related to
clients not named in the search warrant. The letter explicitly requested that the government not
permit the prosecution team to have access to those materials. The letter also identified certain
specific categories of documents constituting privileged communications that were likely seized.
Based on the government’s document productions, it appears that the government largely
ignored counsel’s requests and instead accessed communications that were either privileged or
involved unrelated clients. Counsel’s review of the seized documents examined by the filter
team demonstrates that the government exceeded the scope of the search warrant when searching
the Elder, Gaffey & Paine server and

improperly accessed

7

numerous privileged

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communications. 3 These communications include at least 23 plainly privileged emails between
Mr. Gaffey and his attorneys in this matter that addressed the review and production of
documents in response to grand jury subpoenas. Cahill Dec., ¶ 8. In addition, the privileged
communications also include 146 emails between Mr. Gaffey and Abrahm Smith, a Baker &
McKenzie attorney who represented Mr. von der Goltz, some of which were identified on a
privilege log produced to the government by Elder, Gaffey & Paine in response to a grand jury
subpoena. Id.; see also Buehler Dec., ¶ 7, Ex. 4. Significantly, both of these categories of
documents were identified as potentially privileged in the August 9, 2017 letter from Mr.
Gaffey’s counsel to the government. See Buehler Dec., Ex. 6.
The government’s production of materials seized during the search of Elder, Gaffey &
Paine’s offices also includes numerous documents unrelated to this case involving
communications between Elder, Gaffey & Paine partners and clients that are clearly not within
the scope of the search warrant. Cahill Dec., ¶¶ 8-9. In order to get a sense of just how many
unresponsive documents were included in the government’s production, Mr. Gaffey’s counsel
selected a random sample of 50 documents seized from Elder, Gaffey & Paine that were
identified by the government as non-privileged documents.
3

Id. ¶ 9.

Only five of those

In a telephone conversation with counsel for Mr. Gaffey, on March 6, 2019, the government explained its
methodology for searching the ESI seized from Elder, Gaffey & Paine and for ensuring that the attorney-client
privilege was protected. See Buehler Dec., ¶¶ 3-5. Based on the March 6 conversation with the government,
defense counsel understands that the government applied search terms to the ESI contained on the Elder, Gaffey &
Paine server and other seized computers to identify documents that fell within the scope of the search warrant.
Through that process, based on the documents produced to Mr. Gaffey, counsel believes that the government
identified 4,361,135 pages of documents. Cahill Dec., ¶ 4. These documents include both electronic and hard copy
records that were seized. The government then applied a second set of search terms to identify potentially privileged
documents among the documents that were deemed to be responsive to the warrant. After a review by the filter
team, the government produced three sets of documents. The first set consisted of responsive documents that did
not contain any of the search terms related to attorney-client privilege. The second set, totaling 576,264 pages,
consisted of responsive documents that contained search terms related to the privilege but which the government’s
filter team determined not to be privileged. Id. ¶ 6. The first two sets of documents were made available to the
prosecution team. The third set, totaling 53,017 pages, were responsive documents that the government’s filter team
determined to be potentially privileged and were withheld from the prosecution team. Id. ¶ 7. Mr. Gaffey requested
that the government disclose the search terms applied to the seized ESI, but the government denied his request. See
Buehler Dec., ¶¶ 3-6, Ex. 7.

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documents have any relevance to Mr. von der Goltz or this case.

Of the remaining 45

documents, 34 relate to communications involving other Elder, Gaffey & Paine clients, ten are
personal emails or spam, and one is software code that contains no discoverable information. Id.
A separate review of a portion of the government’s production of seized documents revealed an
additional 172 emails to or from Elder, Gaffey & Paine partners (other than Mr. Gaffey) that are
either communications with other clients or spam. Id. ¶ 8. These reviews establish that the
government’s production of seized documents is replete with materials that are outside the scope
of the search warrant, Rule 16, or both.
Communications with the Government
The government produced the 5.6 million pages of discovery to Mr. Gaffey in two
productions, on January 18, 2019, and February 20, 2019. Following these productions, on
March 6, 2019, counsel for Mr. Gaffey and the government engaged in a telephone conference
regarding, among other things, the document productions and the government’s methodology for
searching the materials seized from Elder, Gaffey & Paine. See Buehler Dec., ¶¶ 2-4. During
this call, defense counsel reiterated some of the requests that had been made in the January 7,
2019 discovery letter, and raised some new issues, as well. Id. ¶ 3. In particular, during the call
and in a follow-up email memorializing the call, counsel for Mr. Gaffey requested that the
government identify “seized documents that the government intends on using in its case-inchief,” “[s]earch terms applied to the Elder Gaffey & Paine (“EGP”) server, Gaffey computer
and Tremarche computer to identify documents produced on February 20th ,” and “[s]earch terms
applied to the documents identified as responsive from the EGP server, Gaffey computer and
Tremarche computer to identify potentially privileged materials.” Buehler Dec., ¶¶ 2-4, Ex. 7.

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The government responded to Mr. Gaffey’s follow-up discovery request in an email on
March 15. With regard to Mr. Gaffey’s request for the government to identify the seized
documents that it intends to use at trial, the government replied, “Because of the volume of
discovery in this case, we are willing to provide such a draft of our anticipated exhibit list earlier
than usual. We propose to produce a draft exhibit list six weeks prior to trial.” See Buehler
Dec., Ex. 7. The government refused Mr. Gaffey’s requests for the search terms it used to
review the seized documents, stating, “We don’t believe the search terms are covered by Rule 16
or any other discovery obligation.” Id.
On May 7, 2019, the government informed counsel for Mr. Gaffey and Mr. von der Goltz
that it was making an additional production of documents as part of its discovery.

The

documents include approximately 55,000 additional pages of documents that were seized during
the search of Elder, Gaffey & Paine, which were apparently reviewed by the filter team and
cleared for production, but were inadvertently left out of the earlier productions. In addition, the
government will be producing documents that it received pursuant to an MLAT request to
Germany. These documents will be produced on a rolling basis. See Buehler Dec., ¶ 9.
ARGUMENT
The government’s flawed document productions place Mr. Gaffey in an untenable
position as he attempts to prepare for trial. By itself, the sheer volume of documents that the
government produced puts Mr. Gaffey at a great disadvantage. Beyond the massive amount of
documents, moreover, numerous other characteristics of the government’s productions – the lack
of any detailed index or summary of the documents; the inclusion of numerous irrelevant and
unrelated documents; the missing metadata for certain documents; and the formatting of
document compilations that defy easy review – all compound the problem. Instead of complying
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with its obligations under Rules 12 and 16 to identify the documents it intends to use at trial, the
government ignored those rules and, in the process, made it impossible for Mr. Gaffey to prepare
for trial or file pretrial motions. For these reasons, the Court should order the government to (1)
identify the seized documents that it intends to use in its case-in-chief at trial, pursuant to Rule
12(b)(4)(B), (2) identify the third-party documents that it intends to use in its case-in-chief at
trial, pursuant to Rule 16(a)(1)(E)(ii), and (3) provide the defense with the search terms it used to
search the ESI seized from Elder, Gaffey & Paine, pursuant to Rules 12 and 16.
Legal Standard
Rule 16 provides the district court with broad powers to regulate discovery in federal
criminal cases. Fed. R. Crim. P. 16(d) (“At any time the court may, for good cause, deny,
restrict, or defer discovery or inspection, or grant other appropriate relief.”). Consistent with
Rule 16’s broad grant of authority, “the overwhelming majority of district courts, in accord with
Second Circuit authority, favor the view that ‘it is within a district court’s authority to direct the
Government to identify [prior to trial] the documents it intends to rely on in its case in chief.’”
United States v. Vilar, 530 F. Supp. 2d 616, 639 (S.D.N.Y. 2008); see also United States v.
Giffen, 379 F. Supp. 2d 337, 344 (S.D.N.Y. 2004) (“based on the policy concerns of Rule 16 and
principles of fairness, it is within a district court’s authority to direct the Government to identify
the documents it intends to rely on in its case in chief”).
Both Rule 12 and Rule 16 contain similar requirements for the government to identify
which of certain categories of documents it intends to use at trial. Pursuant to Rule 16, the
government is directed to disclose papers, documents and tangible objects that, among other
things, “the government intends to use . . . in its case-in-chief at trial.” Fed. R. Crim. P.
16(a)(1)(E)(ii).

Rule 12 imposes an additional discovery obligation on the government by
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requiring the government, on request of the defendant, to provide notice to the defendant of its
intent to use seized evidence in its case-in-chief. Fed. R. Crim. P. 12(b)(4)(B). The purpose of
these rules is to allow defendants to prepare for trial and to move to suppress evidence in a
timely manner. See, e.g., United States v. Anderson, 416 F. Supp. 2d 110, 112-14 (D.D.C.
2006); United States v. Upton, 856 F. Supp. 727, 746-48 (E.D.N.Y. 1994).
With respect to Rule 12(b)(4)(B), courts have made clear that the government’s
obligation to identify the seized documents that it intends to use at trial is mandatory and that, as
a result, the government is required to notify a defendant of the documents that it plans to use in
its case-in-chief. See United States v. Anderson, 416 F. Supp. 2d at 112; United States v.
Norman, No. 05-CR-30015-DRH-4, 2005 WL 2739082, at *2 (S.D. Ill. Oct. 24, 2005) (“the
government is obligated to comply with both Rule 16 and Rule 12(b)(4)(B).”). As the court in
Anderson stated, “the government, either on its own or in response to a request by the defendant,
must notify the defendant of its intent to use certain evidence in order to give the defendant an
opportunity before trial to move to suppress that evidence.” Anderson, 416 F. Supp. 2d at 112
(quoting Fed. R. Crim. P. 12, Notes of the Committee on the Judiciary to 1975 Enactment,
Amendments Proposed by the Supreme Court, H.R.Rep. No. 94-247) (emphasis in original).
Accordingly, “[d]efendant’s entitlement under Rule 12(b)(4)(B), then, is clear: of the material
seized from [defendant’s] home and office, the government must notify defendant of the
evidence that it intends to use in its case-in-chief – that is, the evidence that will appear on the
government’s exhibit list for trial.” Id. at 112.
Similarly, in considering a defendant’s request that the government identify the
documents in its possession that it intends to use at trial pursuant to Rule 16(a)(1)(E)(ii), courts
in this circuit and elsewhere have routinely exercised their authority under Rule 16 to order the
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government to do so. See United States v. Bortnovsky, 820 F.2d 572, 575 (2d Cir. 1987)
(“Government did not fulfill its obligation merely by providing mountains of documents to
defense counsel who were left unguided as to which documents would be proven falsified”);
United States v. McDonald, No. 01-CR-1168(JS)(MLO), 2002 WL 2022215, at *3 (E.D.N.Y.
Aug. 6, 2002) (“although the government [wa]s not required to organize its documentary
evidence, in this case the government [was] required to identify documents upon which it
w[ould] rely”); United States v. Upton, 856 F. Supp. at 747-48 (requiring government to specify
from the thousands of documents produced, those documents it planned on relying on at trial);
United States v. Rickets, No. 15-153, 2015 WL 9478136, at *3 (E.D. La. Dec. 29, 2015) (“Under
[Rule 16(a)(1)(E)], the Government must identify specifically which items it intends to use in its
case-in-chief at trial.”); United States v. Poindexter, 727 F. Supp. 1470, 1484 (D.D.C. 1989)
(government may not take a “broad brush approach” to discovery by identifying several
thousands of pages of documents, any of which it may rely on at trial); United States v. Turkish,
458 F. Supp. 874, 882 (S.D.N.Y. 1978) (government may not bury defendant in paper by merely
making all of the documents available).
Discussion
Mr. Gaffey is seeking the following relief from the Court related to the government’s
production of discovery in this case: First, pursuant to Rule 16, the government should be
ordered to identify which of the third-party documents it intends to use in its case-in-chief at
trial. Second, pursuant to Rule 12, the government should be ordered to identify which of the
seized documents it intends to use in its case-in-chief at trial. Third, pursuant to Rules 12 and
16, the government should be ordered to produce to the defense the search terms it utilized to

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review the seized documents. Without this information, Mr. Gaffey will be unable to prepare for
trial or to file timely pretrial suppression motions.
As an initial matter, under Rule 16(a)(1)(E)(ii), Mr. Gaffey is entitled to have the
government identify the third-party documents that it intends to use at trial.

To date, the

government has produced more than 1.2 million pages of documents that it received from
various third parties. Even if these were the only documents produced by the government in this
case, it would be a daunting task to review such a large volume of documents effectively before
trial. But, as noted, these documents actually constitute only a little more than 20 percent of the
overall document discovery. In addition to the volume, a preliminary review of these documents
shows that the production is overbroad and includes a seemingly large number of documents that
are unrelated to this case and are outside the scope of Rule 16. The lack of metadata and the
formatting of some of the documents only compound the difficulty of conducting a reasonably
efficient review of the discovery. Absent a court order directing the government to identify the
documents it intends to use at trial, Mr. Gaffey will be unable to determine what documents
produced by the government are relevant to this case.
In circumstances where the government produced far fewer documents in discovery than
the 5.6 million pages produced to Mr. Gaffey, courts have not hesitated to order the government
to identify forthwith the documents produced in discovery that it intends to use at trial. In United
States v. Upton, where the government produced “thousands of pieces of paper,” the court
rejected the government’s claim that it was not required to inform defendants of the documents it
planned to rely upon at trial because, among other reasons put forward by the government, the
defendants were familiar with the significance of the documents and the government would
provide trial exhibits prior to trial. 856 F. Supp. at 748. In so holding, the court pointed out that
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none of the government’s arguments “adequately explain why defendants should be kept in the
dark until trial.” Id. The court went on to note that whether the defendants had some familiarity
with the documents was irrelevant to the dispute, holding that, “[t]he purpose of requiring the
government to identify which documents it will rely upon at trial in a situation such as this –
where there are thousands of documents – is to allow the defendant to adequately prepare his or
her defense. General familiarity with the nature of the documents . . . will not allow defendants
to do that if they are not informed which documents” the government will rely upon at trial. Id.
(emphasis in original).
Similarly, in United States v. McDonald, the government refused the defendants’ requests
to identify the documents it intended to use at trial, claiming that it had fully complied with its
discovery obligations when it produced approximately 200,000 pages of documents. 2002 WL
2022215, at *1. Relying on the reasoning in Upton, the court in McDonald nonetheless ordered
the government “to identify documents upon which it will rely.” Id. at *3. Again, in United
States v. Turkish, a tax evasion case, one of the defendants “s[ought] a direction to the
government to indicate which of the approximately 25,000 documents relating to th[e] case in
the government’s possession it intend[ed] to use at trial, rather than ‘bury(ing) the defendant in
paper’ by merely generally making all of the documents available to defendants.” 458 F. Supp.
at 882. Referring to the plain language of Rule 16(a)(1)(C), the court ordered the government
“to identify to the defendants those documents which it intend[ed] to offer, or to use or to refer to
in connection with the testimony of any witness, on its case in chief.” Id.
Mr. Gaffey’s need for the government to identify the seized documents it intends to use at
trial is even stronger, as is his right to such information. As noted, the government’s obligation
to comply with Rule 12(b)(4)(B) is mandatory. See Anderson, 416 F. Supp. 2d at 112; United
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States v. Norman, 2005 WL 2739082, at *2. The purpose of Rule 12(b)(4)(B) is, as the rule
itself states, to provide the defendant with “an opportunity to move to suppress evidence.” See
United States v. de la Cruz-Paulino, 61 F.3d 986, 994 (1st Cir. 1995) (the rule “was designed to
aid defendants in fulfilling their Rule 12(b)(3) obligation to make suppression motions prior to
trial.”). Given that the government has produced approximately 4.4 million pages of seized
documents from the search of Elder, Gaffey & Paine, it is especially imperative that the
government comply with the requirements of Rule 12(b)(4)(B).
The decision in Anderson is especially instructive and relevant to this case. In Anderson,
the court addressed a situation similar to the circumstances facing Mr. Gaffey and ordered the
government to identify for the defendant the documents it intended to offer in its case-in-chief at
trial: (1) from those that were seized from the defendant’s place of business; and (2) from those it
obtained from third parties, such as banks, other financial institutions, and foreign sources. 416
F. Supp. 2d at 112-14. Like Mr. Gaffey, the defendant in Anderson was charged with tax
evasion and was provided with a large volume of discovery − 500,000 pages − which consisted
of materials that were both seized during searches and produced in response to grand jury
subpoenas and other requests. Id. at 114 (government produced 500,000 pages of discovery).
Also like Mr. Gaffey, the defendant in Anderson moved, pursuant to Rules 12(b)(4)(B) and
16(a)(1)(E)(ii), to compel the government to identify the documents that the government
intended to introduce in its case-in-chief. Id. at 111. In granting the motion, the court stated,
“[g]iven the enormous volume of material produced in this case and defendant’s limited
resources, it is apparent that requiring defendant’s counsel to peruse each page of the materials at
issue here – in effect, to duplicate the work of document review presumably already done by the
government – would materially impede defendant’s counsel’s ability to prepare an adequate
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defense.” Id. at 114.

The Anderson court concluded by noting that “[i]t is in both [the

defendant]’s and the government’s interest that the defendant be able to mount an adequate
defense and/or engage in meaningful plea discussions, and it is the Court’s view that the
identification and production of the requested information will help to ensure that he can.” Id. at
115. The reasoning in Anderson is equally applicable here.
Moreover, compared to the defendants in the cases cited above, Mr. Gaffey’s need for the
government to identify the documents that it intends to use in its case-in-chief – both those that
were obtained from third parties and those that were seized from his firm – is even more
pronounced because of the far greater amount of discovery produced here – 5.6 million pages.
See, e.g., Anderson, 416 F. Supp. 2d at 114 (“500,000 pages”); McDonald, 2002 WL 2022215, at
*1 (“the government had produced 76 boxes of documents consisting of approximately 200,000
pages”); Upton, 856 F. Supp. at 747 (“the government has produced thousands of pieces of
paper”); Turkish, 458 F. Supp. at 882 (“approximately 25,000 documents relating to this case in
the government’s possession”). In sum, the 5.6 million pages of documents that were produced
to Mr. Gaffey dwarf by a significant degree the productions made to the defendants in the cited
cases, all of whom received the early identification of evidence that Mr. Gaffey is requesting.
Finally, given that the seized documents produced by the government include numerous
emails and other materials that are either privileged or not related to this case, the Court should
also order the government to produce the search terms that the government used to review the
seized documents.

The Second Circuit has recognized that the district court has inherent

authority to regulate the nature of discovery. See United States v. Cannone, 528 F.2d 296, 298
(2d Cir. 1975). Where, as here, the government’s review of seized documents appears to have
been deficient and has led to the production of materials that should not have been produced in
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discovery – because they are privileged or irrelevant to the case – the defendant should have the
opportunity to evaluate the search terms used by the government. See United States v. Cadden,
No. 14-10363-RGS, 2015 WL 5737144, at *1 (D. Mass. Sept. 30, 2015). In Cadden, the
defendants brought a motion to compel the government to produce six categories of discovery,
including a list of the search terms used by the government to capture the 1.1 million emails that
were produced to the defendants. In holding that the government should produce the search
terms, the court determined that “[t]he search terms [we]re material in the sense that defendants
ha[d] no other means by which to test the inclusiveness of the government’s selection of the
material that it produced pursuant to its obligations under Fed. R. Crim. P. 16(a)(1)(E).” Id. at
*2.
Here, if the government’s search terms were too broad or not reasonably designed to
locate only non-privileged, responsive documents, then Mr. Gaffey would be in a position to
move to suppress the fruits of the search. This is precisely the purpose behind Rule 12(b)(3)(C),
which requires a defendant to make all suppression motions prior to trial. For this reason, search
terms are deemed to be relevant in the context of search and seizures of large amounts of ESI.
For example, in United States v. Wey, the search terms used by the government to search ESI that
had been seized pursuant to a warrant, which the defendant successfully suppressed, were
discussed at length at the suppression hearing.

See Buehler Dec., Ex. 8 (Transcript of

Suppression Hearing at 20-27, United States v. Wey, 256 F. Supp. 3d 355 (S.D.N.Y. 2017) (No.
15-611)). In sum, having the search terms used by the government will allow Mr. Gaffey to
make a decision about whether to file a suppression motion that does not waste the Court’s time
or his own limited resources.

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Accordingly, in light of the government’s large, unwieldy and flawed document
productions in this case, the Court should order the government forthwith to identify which of
the third-party documents and which of the seized documents it intends to use in its case-inchief.

The Court should also exercise its authority under Rules 12 and 16 to order the

government to provide its search terms to the defense.
CONCLUSION
For the reasons set forth above, the government should be ordered to take the following
steps forthwith:
•

Identify the documents seized during the search of Elder, Gaffey & Paine that the
government intends to use in its case-in-chief;

•

Identify the documents obtained from third parties that the government intends to use
in its case-in-chief; and

•

Produce the search terms used by the government to search the ESI contained on the
server and other computers that were seized by the government during the search of
Elder, Gaffey & Paine.

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Dated: New York, New York
May 7, 2019

Respectfully submitted,

Hogan Lovells US LLP
/s/ William J. Lovett
William J. Lovett
100 High Street, 20th Floor
Boston, MA 02110
Telephone: (617) 371-1007
/s/ Robert B. Buehler
Robert B. Buehler
390 Madison Avenue
New York, NY 10017
Telephone: (212) 918-3261
Attorneys for Richard Gaffey

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