This could be good for justice.
The government is opposing a proposal put forth by Keith Raniere, Nancy Salzman and Clare Bronfman to have a document by document review by the government’s Firewall Team to determine which documents should be considered to be subject to attorney-client privilege.
The Firewall Team – which is comprised of governmental lawyers separate from the prosecution team – examine documents to prevent attorney-client privileged documents from being given to the prosecution. The Firewall Team reviews and tries to resolve privilege disputes.
The government wants the defendants to identify which lawyers they claim are their lawyers with whom they claim their communications should be privileged.
The Government has filed their objection with the court.
In essence here is the dispute:
For months, the government has been in communication with counsel for Clare Bronfman, Nancy Salzman, and Keith Raniere and later, with counsel for Nxivm, Michael Sullivan – to attempt to understand the applicable privileges in order to conduct its privilege review.
It’s not working out well.
The government writes that they have “…been attempting to understand which attorneys represented the defendants, which attorneys represented Nxivm or any other entities, whether any common interest agreements were entered into between Nxivm and the defendants, and if so, the time period and scope of representations relevant to these asserted privileges.”
It can be confusing since the defendants had so many lawsuits and so many lawyers. It is hard to keep it all straight – especially since NXIVM litigation is never straight, but fraught with lies.
Not surprisingly, the government writes, “At present, however, the government has received inconsistent information from the relevant parties.”
Inconsistent information? How shocking.
But then it starts getting really interesting: Frank Report has often written about how Clare Bronfman perjured herself over the location of NXIVM’s server in the computer trespassing civil lawsuit and criminal complaints against Toni Natalie, Joe O’Hara, Barbara Bouchey, and John Tighe.
Now it seems Clare does not want the government to access certain documents – claiming privilege – on the topic of the NXIVM computer server.
Could this lead to Clare being finally charged with perjury for the awful thing she did – lie about the location of the NXIVM server to get the above-mentioned people indicted? If the government can access these documents she is now claiming are privileged, could it lead to more charges against her?
The government writes, “Clare Bronfman has identified Jonathan Ware, Esq., as an attorney who represented Nxivm and with whom she claims she had privileged communications in her capacity as a representative for Nxivm. However, counsel for Nxivm, Michael J. Sullivan, Esq., has informed the government that the privilege-holder of communications between Clare Bronfman and Jonathan Ware, Esq. over Nxivm’s server is Clare Bronfman in her personal capacity, and that Mr. Ware did not represent Nxivm.
“The information provided by counsel for Nxivm about any privileges applying to the records on Nxivm servers was inconsistent with the representations of Ms. Bronfman in other ways as well.”
Does this suggest the Government is actually, finally, investigating the massive fraud and perjury that Bronfman and Raniere committed to get several innocent people indicted on the computer trespassing case?
Time will tell.
Meantime, the government is getting more confusing signals from the defendants.
The government writes, “…counsel for the defendants Clare Bronfman and Keith Raniere have both asserted that the defendants entered into joint defense agreements with Nxivm at various times. However, Mr. Sullivan has indicated that he is not presently aware of any such agreements with Ms. Bronfman or Mr. Raniere.”
The government asked counsel for Raniere, Bronfman, and Nancy Salzman to provide lists of attorneys and law firms that represented the defendants – and with whom they claim to have had privileged communications.
The defendants object to even telling the prosecutors which attorneys with whom they claim to have privilege. They provided lists and charts of attorneys and law firms to the Firewall Team but object to providing the same list to the prosecution team.
The problem with this is that the prosecution team is in a better position to identify inconsistencies as to claims of privilege than the Firewall Team. Legal arguments regarding whether privilege exists, the scope of the privilege, and whether a privilege has been waived are generally litigated by the prosecution team. not the Firewall Team.
Bronfman-Raniere’s counsel prefers, however, that the Firewall Team proceeds with privilege review and for the parties to resolve any disputed issues as to privilege on a document-by-document basis during or following that review.
One document at a time?
Instead of identifying in advance which attorneys are privileged for whom, they want to take every single document – one by one – and determine which are privileged.
The government writes, “This approach should be rejected. Conducting a privilege review prior to determining which privileges exist—or even who a particular lawyer represented—would be wholly impractical, not to mention highly inefficient and likely to cause significant delay in the case.”
The government argues that the Firewall Team can do its review expeditiously only after it has a “…clear understanding of the existence, validity and scope of the asserted privileges.”
The government requests that the court direct the defendants to provide the Lists and Charts to the prosecution team so that they can litigate with the defense whether privilege exists or not. Then the review can proceed.
A document by document review could take months.
The government has cited precedents that suggest that “The burden of establishing the existence of an attorney-client privilege, in all of its elements, rests with the party asserting it.”
It is not privileged in and of itself that there is an attorney-client privilege but rather that the contents of the communications are privileged.
Raniere-Bronfman object and claim even the existence of an attorney-client privilege should be privileged. Should Raniere-Bronfman prevail, it could delay the trial for several months.
It is curious that most of the objections are coming from Bronfman-Raniere and not Nancy Salzman. She seems to be involved mainly because many of the documents come from electronic devices which were seized from her home. And perhaps because she is the sole owner of the NXIVM corporation.
EDITOR’S UPDATE: A Status Conference has been scheduled at 3:30 PM on Tuesday, December 4th, to address the various competing arguments that have arisen concerning the issue of attorney/client privilege. The Scheduling Order for this hearing reads as follows (Note: The reference to “206” is the letter of objection that was recently filed by the prosecution team):
SCHEDULING ORDER as to Keith Raniere, Allison Mack, Clare Bronfman, Kathy Russell, Lauren Salzman, Nancy Salzman. An in-person Status Conference is set for 12/4/2018 at 03:30 PM in Courtroom 13A South before Magistrate Judge Vera M. Scanlon to discuss . Mr. Sullivan, counsel for NXIVM, is requested to attend. Any written response to the Government’s submission  should be filed by 12/3/18 at 12 PM. The Government is ordered to send a copy of this Order to Mr. Sullivan and file proof of service thereof by 11/30/18. Ordered by Magistrate Judge Vera M. Scanlon on 11/28/2018. (Pearce, Jessica)