A status conference on discovery issues is scheduled for October 2nd, between the prosecution and the defense in the case against Keith Raniere et al. It will be held before Magistrate Judge Vera M. Scanlon, who has been assigned to help resolve discovery disputes by Judge Nicholas G. Garaufis, the presiding judge in the case.
According to court records, the “working date” for the prosecution’s production of “all relevant known discovery” is December 7, 2018. The trial is currently scheduled to start on January 7, 2019.
The present discovery dispute centers largely around delivery to the defense of data contained in approximately 70 devices seized at Nancy Salzman’s home at 3 Oregon Trail, and a townhome used by Keith Raniere, which he commonly referred to as his “Library” and which was popularly known as his “Sex Lair”, at 8 Hale Drive.
As explained by the prosecution to the court, a team of seven forensic examiners with the FBI’s Computer Analysis Response Team (CART) has been examining the devices seized from Salzman and Raniere. The CART team must first image the devices with forensic imaging software that copies each bit of computer code—a series of ones and zeroes—in sequence, “bit by bit.” To help ensure the original and the image are “forensically identical,” the CART examiners use a program that calculates a unique number, or “hash value”, for the original and, later, for the image, and ensures they match. Into the imaged copy, the CART examiner transfers all the data from the original hard drive – including active data, deleted data, metadata, files, folders, and empty or unallocated spaces – to make it available for examination and review. This process can take from a few minutes to weeks, depending on the amount of data on the drive.
Next, the content is uploaded to FBI’s data review platform, where FBI case agents review the data – consistent with the court-authorized searches. Many of the devices seized from the Clifton Park properties contain audio and video files. Unlike text files that can be searched using certain keywords [and that allow irrelevant files to be ignored], the audio and video files must be reviewed individually, file by file. That takes time, the prosecution argues.
There is another problem causing delay: Some of the seized devices, due to encryption or other technical issues, were sent to the FBI laboratory in Quantico. Accessing this data may take months, because of backlog, the prosecution says. The Raniere-Salzman encrypted devices are placed in queue alongside evidence from other cases, including cases involving allegedly imminent threats to national security which the laboratory must prioritize.
Whether this delay could be avoided with Salzman and Raniere giving the passwords and usernames for the encrypted devices to the FBI – is not known.
There is another problem delaying discovery: Nancy Salzman has objected to copies being made of her data and given to the other defendants. As I understand it, Salzman wants to review the data on her devices first and determine if she objects to it being made available to all her co-defendants – since some of it may not pertain to their charges and, thus, would needlessly violate her privacy by sharing it.
For these reasons, the prosecution argues, they are “unable at this time to provide the Court with precise estimates regarding the timing and completion of its searches of these devices.”
In response to the government’s uncertain dates for discovery, Clare Bronfman’s lawyers, Susan Necheles and Kathleen Cassidy, argued in a letter to the Court that getting discovery 30 days before trial would “provide inadequate time for the defendants to review the discovery before trial.”
They point out that the government seized the computers more than six months ago.
Of special concern to the Bronfman defense team are devices sent to FBI Headquarters.
They write “[W]e are concerned that even the December 7 date will pass without defendants having received the entirety of discovery.”
The defense is asking the court to impose strict discovery deadlines with a hard cutoff date, after which the government will be precluded from introducing at trial any materials it has in its possession that it did not produce to the defense attorneys by the cutoff date.
It is up to Judge Garaufis to decide whether he will impose a hard deadline on discovery and bar evidence not delivered by that time. He could also decide to postpone the trial date to give the defense adequate time to review discovery delivered after the deadline.