Case 3:18-cr-04683-GPC Document 282-1 Filed 09/20/21 PageID.3195 Page 1 of 12
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`WIECHERT, MUNK &
`GOLDSTEIN, PC
`David W. Wiechert, SBN 94607
`Jessica C. Munk, SBN 238832
`William J. Migler, SBN 318518
`27136 Paseo Espada, Suite B1123
`San Juan Capistrano, CA 92675
`Telephone: (949) 361-2822
`Email: dwiechert@wmgattorneys.com
` jessica@wmgattorneys.com
` william@wmgattorneys.com
`
`Attorneys for Jacob Bychak
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`
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`MINTZ, LEVIN, COHN, FERRIS,
`GLOVSKYAND POPEO, P.C.
`Randy K. Jones, SBN 141711
`3580 Carmel Mountain Road, Suite 300
`San Diego, CA 92130
`Telephone: (858) 314-1510
`Email: rkjones@mintz.com
`
`Daniel J. Goodrich, BBO 692624 (Pro Hac)
`Ryan Dougherty, BBO 703380 (Pro Hac)
`1 Financial Center
`Boston, MA 02111
`djgoodrich@mintz.com
`rtdougherty@mintz.com
`
`Attorneys for Mark Manoogian
`
`
`BIRD MARELLA BOXER WOLPERT
`BIENERT KATZMAN
`NESSIM DROOKS LINCENBERG
`LITTRELL WILLIAMS LLP
`RHOW P.C.
`Thomas H. Bienert, Jr., SBN 135311
`Gary S. Lincenberg, SBN 123058
`James D. Riddet, SBN 39826
`Nicole Rodriguez Van Dyk, SBN 261646
`Whitney Z. Bernstein, SBN 304917
`Darren L. Patrick, SBN 310727
`Carlos A. Nevarez, SBN 324407
`1875 Century Park East, Floor 23
`903 Calle Amanecer, Suite 350
`Los Angeles, CA 90067
`San Clemente, California 92673
`Telephone: (310) 201-2100
`Telephone: (949) 369-3700
`Email: glincenberg@birdmarella.com
`Email: tbienert@bklwlaw.com
`nvandyk@birdmarella.com
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` jriddet@bklwlaw.com
` dpatrick@birdmarella.com
`
` wbernstein@bklwlaw.com
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` cnevarez@bklwlaw.com
`Attorneys for Petr Pacas
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`Attorneys for Mohammed Abdul Qayyum
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`DEFENDANTS’ MOTION FOR RECONSIDERATION OF MOTION FOR
`DISCOVERY OF CONFIDENTIAL INFORMANT
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`Case 3:18-cr-04683-GPC Document 282-1 Filed 09/20/21 PageID.3196 Page 2 of 12
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`Plaintiff,
`
`UNITED STATES OF AMERICA,
`
`
`
`v.
`
`JACOB BYCHAK, et al.,
`
` Defendants.
`
`
`Case No. 18-CR-4683-GPC
`Honorable Gonzalo P. Curiel
`
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT OF
`DEFENDANTS’ MOTION FOR
`RECONSIDERATION OF MOTION
`FOR DISCOVERY OF CONFIDENTIAL
`INFORMANT
`
`[Declaration of Jessica C. Munk and
`Proposed Order filed concurrently herewith]
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`Requesting In-Person Hearing
`
`Hearing Date: October 4, 2021
`Hearing Time: 1:00 p.m.
`Department: Courtroom 2D
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`
`
`
`
`
`MEMORANDUM OF POINTS AND AUTHORITIES
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`I.
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`INTRODUCTION
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`On April 30, 2019, the Court held that Defendants were not entitled to discovery
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`identifying the government’s confidential informant employed at the Spamhaus Project
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`(“Spamhaus”), an international organization striving to police the sending of commercial
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`email. But just like how much of the outside world has changed since the retrospectively
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`halcyon days of April 2019, this case, and the circumstances surrounding the Spamhaus
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`informant, have changed too. Since then, Defendants have obtained, via both voluntary
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`and inadvertent government disclosure, evidence and information reflecting the Spamhaus
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`informant’s actual name and his importance to Defendants’ anticipated motion to suppress
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`confidential documents taken from Company A.
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`DEFENDANTS’ MOTION FOR RECONSIDERATION OF MOTION FOR DISCOVERY OF
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`Case 3:18-cr-04683-GPC Document 282-1 Filed 09/20/21 PageID.3197 Page 3 of 12
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`Since the Court’s April 30, 2019 order, the government has produced documents
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`showing that the Spamhaus informant had an outsized role in the government’s
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`investigation of Defendants, which included encouraging a former Company A insider to
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`pass along purloined internal Company A documents to Spamhaus to ultimately pass
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`along to the government. This is discussed more thoroughly in Defendants’ concurrently
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`filed Motion to Compel Discovery Re: Spamhaus’ History of Assisting Governmental
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`Investigations. The opportunity to interview this Spamhaus informant and/or call the
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`informant as a witness regarding the potential illegal acquisition of Company A records
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`would shed light on the extent of Spamhaus’ assistance to the government here and the
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`question of Spamhaus being a “state actor” for Fourth Amendment purposes, a question
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`critical to Defendants’ motion to suppress.
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`But to interview or call the informant as a witness, Defendants would need to know
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`the Spamhaus informant’s identity. Since the Court’s April 2019 order, Defendants have
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`learned of the Spamhaus informant’s name via an inadvertent disclosure caused by the
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`government’s failure to redact his name on two recently produced documents. Defendants
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`promptly alerted the government to its mistake and subsequently destroyed the documents
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`in question according to the government’s instructions, with all defense counsel agreeing
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`to not use that information in their trial preparation.
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`However, one cannot unring a bell, and it is patently unfair to preclude the defense
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`from utilizing this vital information that is pertinent to a key motion to suppress which, if
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`successful, could significantly restrict the government’s case. While Defendants are
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`sympathetic to the general doctrine of clawing back inadvertent discovery disclosures
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`(and the spirit of professional courtesy upon which the doctrine is grounded), the
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`balancing of the interests here decisively weigh in favor of Defendants’ using the
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`informant’s name; there is no comparison between Defendants’ liberty interests at stake
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`here against a non-existent threat of mischief against the informant.
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`Defendants thus request that the Court reconsider its previous April 30, 2019 ruling
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`and find that Defendants are entitled to utilize the Spamhaus informant’s identity given
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`Case 3:18-cr-04683-GPC Document 282-1 Filed 09/20/21 PageID.3198 Page 4 of 12
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`both the inadvertent disclosure of his name and the recent disclosure of evidence
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`demonstrating his ever-growing importance to this case.
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`II. BACKGROUND
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`On March 15, 2019, Defendants jointly moved to compel discovery relating to the
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`Spamhaus confidential informant, requesting, inter alia, that the Court order the
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`government to provide Defendants his full name. Dkt. No. 71. On April 30, 2019, the
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`Court denied this motion. Dkt. No. 93.
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`On February 12, 2021, almost two years later, Defendants received the
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`government’s 26th document production. Declaration of Jessica C. Munk (“Munk Dec.”)
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`at ¶ 3. Included within that production were various emails between the Spamhaus
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`informant and FBI Special Agent Charles Chabalko between May 2014 and through and
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`after the filing of the indictment in 2018. Id. These emails reflect close cooperation
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`between the Spamhaus informant and the government during its investigation of
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`Defendants, including references to the Spamhaus informant having communications with
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`a Company A insider who was interested in cooperating against Company A. Id. Also
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`included within this production of emails were references to the Spamhaus informant
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`obtaining confidential internal documents from Company A via this Company A insider,
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`with the Spamhaus informant advising Agent Chabalko on September 27, 2017 that the
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`Company A insider had “sent internal emails implicating various people of doing various
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`things.” Id. at ¶ 4.
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`On July 30, 2021, Defendants moved to compel the government to identify those
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`documents it possessed that were derived from the Company A insider via Spamhaus.
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`Dkt. No. 257. On August 20, 2021, the Court granted this motion in part and ordered the
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`government to have the Spamhaus informant identify which documents he provided to the
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`government that came from the Company A informant. Dkt. No. 275.
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`26
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`On August 6, 2021, the government made its 39th document production. Munk
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`Dec. at ¶ 5. Included within that production were documents pertaining to the Spamhaus
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`informant. On one document the government failed to redact the informant’s first name,
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`Case 3:18-cr-04683-GPC Document 282-1 Filed 09/20/21 PageID.3199 Page 5 of 12
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`and on another document the government did not redact his last name, allowing
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`Defendants to piece together the Spamhaus informant’s full name. Id. Shortly after this
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`was discovered, defense counsel alerted government counsel to the omitted redactions. Id.
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`Government counsel requested that the documents be destroyed, and that Defendants not
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`use the informant’s actual name in their trial preparation, to which all defense counsel
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`agreed. Id.
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`Defendants intend to both file a motion to suppress the internal Company A
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`documents that the Spamhaus informant forwarded to the government and request a
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`Kastigar hearing to determine the extent of the government’s use of those documents and
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`the leads and information derived therefrom. This motion will require Defendants to
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`demonstrate that Spamhaus was a “state actor” when it interacted with the Company A
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`insider vis-à-vis his theft of the documents. Being able to interview the Spamhaus
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`informant, or subpoena the informant to compel disclosure of the communications with
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`the Company A insider is thus of critical importance, and Defendants cannot coordinate
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`these activities without this discovery and being able to utilize his full name. Munk Dec.
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`at ¶ 6. This is the impetus for the instant motion.
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`The government’s disclosure of evidence relating to the Spamhaus informant, and
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`his direction of the government’s investigation, including the production of numerous
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`documents to the government, were not produced to the defense until almost two years
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`after the Court’s April 30, 2019 order, and thus could not have been presented to the
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`Court for consideration at that time. Defendants accordingly now move the Court to
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`reconsider its previous denial of their motion to compel discovery relating to the
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`confidential informant on the ground that this new information represents a significant
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`change in the circumstances bearing on the merits of this initial motion.
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`III. ARGUMENT
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`A. Motion for Reconsideration Standard
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` “[C]ourts, including the Ninth Circuit, have held that motions for reconsideration
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`may be filed in criminal cases.” United States v. Carey, No. 11-cr-00671-BAS-1, 2021
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`Case 3:18-cr-04683-GPC Document 282-1 Filed 09/20/21 PageID.3200 Page 6 of 12
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`WL 1749900, at *3 (S.D. Cal. May 3, 2021) (citing United States v. Martin, 226 F.3d
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`1042, 1047 n.7 (9th Cir. 2000)). Courts have typically analyzed such reconsideration
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`motions “under the same standards applicable to civil motions for reconsideration,”
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`finding reconsideration is appropriate if the district court is “(1) presented with newly
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`discovered evidence; (2) committed clear error or the initial decision was manifestly
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`unjust; or (3) if there is an intervening change in controlling law.” Id. (citing United States
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`v. Gomez, No. 3:14-CR-3000-DMS, 2021 WL 347694, at *1 (S.D. Cal. Feb. 2, 2021)).
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`B. The New Discovery Disclosures, Both Voluntary and Inadvertent,
`Warrant Reconsideration of the Court’s Previous Denial of Defendants’
`Motion to Compel Disclosure of the Informant’s Identity
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`At the time of the Court’s April 2019 decision, Defendants did not have the email
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`correspondence between the FBI and the Spamhaus informant evidencing his heavy
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`involvement in the government’s investigation and his potential role in the theft of
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`confidential Company A documents – these discovery productions were not provided to
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`the defense until earlier this year. Munk Dec. at ¶ 7. Simply put, in April 2019 Defendants
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`did not have the facts showing that the Spamhaus informant is a key component to
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`Defendants’ anticipated Fourth Amendment challenge. Id. Indeed, as only one example, it
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`was not until August of this year, after the Court ordered the government to have the
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`Spamhaus informant identify which documents he had received from the Company A
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`informant, that the government produced emails between the FBI and the Spamhaus
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`informant showing that the informant assisted the government in circumventing the
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`attorney-client privilege in those documents taken from Company A. Specifically, the
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`government produced a document “From Spamhaus” containing summaries of various
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`emails and explaining that “I found the C[] Y[] email documents, and to avoid any
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`potential attorney/client privilege issues (even though they were sent voluntarily by Y[]
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`and not by their attorney herself), I will only provide the headers of the emails as well as a
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`summary of the contents to provide some context.”1 Id. at ¶ 8. This alone warrants
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`1 This email raises 5th and 6th Amendment concerns as well.
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`Case 3:18-cr-04683-GPC Document 282-1 Filed 09/20/21 PageID.3201 Page 7 of 12
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`reconsideration.
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`However, it is the inadvertent disclosure of the informant’s name, which did not
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`occur until very recently, that represents the largest sea-change since the Court’s April
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`2019 order. Defendants now have the very answer they have been seeking for over two
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`years but are constrained from using this information to aid their defense because of the
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`inadvertent disclosure doctrine, codified by Federal Rule of Evidence (“FRE”) 502. Given
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`this new discovery, reconsideration of Defendants’ prior motion to compel the
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`informant’s identity is warranted.
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`Furthermore, the inadvertent disclosure doctrine is not absolute. Courts in the Ninth
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`Circuit apply a five-factor test to determine whether an inadvertent disclosure constitutes
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`a waiver of any privilege/confidentiality of disclosed documents: “(1) the reasonableness
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`of the precautions to prevent inadvertent disclosure; (2) the time taken to rectify the error;
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`(3) scope of discovery; (4) the extent of disclosure; and (5) the overriding issue of
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`fairness.” City of San Diego v. Kinder Morgan Energy Partners, L.P., Case No. 07-1883-
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`MMA (WVG), 2012 WL 12884790, at *2 (S.D. Cal. May 1, 2012).
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`Additionally, the commentary to FRE 502 demonstrates that fairness is the
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`watchword when it comes to the rule and overrides other considerations if invocation of
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`the doctrine would unfairly disadvantage the opposing party. The 2007 Advisory
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`Committee Explanatory Notes to subparagraph (a) explain that there is subject matter
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`waiver as to the disclosed document if “fairness requires a further disclosure of related,
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`protected information, in order to prevent a selective and misleading presentation of
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`evidence to the disadvantage of the adversary.” And the Statement of Congressional Intent
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`regarding subparagraph (b) makes clear that enacting FRE 502 did not “foreclose notions
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`of fairness from continuing to inform application of the standard in all aspects as
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`appropriate in particular cases.”
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`Consideration of these factors leads to the conclusion that Defendants should be
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`allowed to utilize the Spamhaus informant’s identity in their trial preparation. As to the
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`five factors, it must be noted that while the government rectified the error quickly, it was
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`Defendants who first alerted the government to the oversight; it is thus highly likely that
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`the government would not have taken corrective measures so expeditiously if not for
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`Defendants flagging the issue. And while the “scope of discovery” factor may weigh in
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`the government’s favor because it has made over 40 separate document productions, the
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`inadvertent disclosure comprised the entirety of the subject matter at issue – the name of
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`the Spamhaus informant. This is not a situation where the inadvertent disclosure has given
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`Defendants some inferential insight that would require production of reams of additional
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`documents to put the disclosed documents into the proper context. Here, when the
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`government failed to appropriately redact the Spamhaus informant’s name, they disclosed
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`the entirety of that category of information – the whole kit and caboodle with nothing
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`further needed. The “extent of disclosure” factor thus weighs heavily in Defendants’
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`favor.
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`Lastly, the fairness factor weighs heavily toward Defendants. As noted, it was
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`Defendants who alerted the government to its error, out of respect for the inadvertent
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`disclosure doctrine and as a professional courtesy. Moreover, there is clearly a disparity
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`between the competing interests involved. The Spamhaus informant has become a
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`cynosure of this case for the defense, and proper exploration of a potential Fourth
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`Amendment challenge requires them to have access to the informant to learn both his
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`history of cooperating with the government and the specific role the informant played in
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`the theft of internal Company A documents which the government now possesses.
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`Ultimately at stake in this case is Defendants’ very liberty. Contrast this with the
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`government’s interest in maintaining the informant’s identity secret, which is negligible –
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`and apparently an afterthought given the government’s careless redaction mistakes.
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`Moreover, while a confidential informant’s identity is generally afforded protection
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`out of concern that disclosure may place the informant and/or his family at personal
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`physical risk, this is not a case where the defendants and their counsel pose any danger to
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`the informant whatsoever. This case does not involve or relate to a violent felony or gang
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`activity; rather it involves the utilization of allegedly stolen IP netblocks to send
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`commercial email, about as milquetoast a crime imaginable. The alleged unlawful activity
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`occurred several years ago. And, Defendants have (likely) never personally met the
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`Spamhaus informant who likely resides geographically distant from them. There is not a
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`shred of evidence that Defendants have, would, or even could pose any threat to the
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`informant by knowing his identity. Moreover, if the Court felt that the Defendants posed
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`any risk to the informant, disclosure of the name could be on an attorneys’ eyes only
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`basis.
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`In summary, it is unfair to preclude Defendants from using vital information they
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`already possess to aid in their defense against criminal charges. The Court should thus
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`reconsider its previous April 30, 2019 order and grant Defendants’ motion to compel
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`discovery relating to the Spamhaus informant’s identity.
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`IV. CONCLUSION
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`Based on the foregoing, Defendants respectfully request that the Court reconsider
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`its denial of their joint Motion to Compel Discovery Relating to Confidential Informant,
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`Dkt. No. 93, and compel the government to provide discovery relating to the Spamhaus
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`informant’s identity.
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`Respectfully submitted:
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`WIECHERT, MUNK & GOLDSTEIN, PC
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`By: William J. Migler
` David W. Wiechert
` Jessica C. Munk
` William J. Migler
` Attorneys for Jacob Bychak
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`MINTZ, LEVIN, COHN, FERRIS, GLOVSKY
`AND POPEO, P.C.
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`By: Randy K. Jones
` Randy K. Jones
` Attorneys for Mark Manoogian
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`DEFENDANTS’ MOTION FOR RECONSIDERATION OF MOTION FOR DISCOVERY OF
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`Dated: September 20, 2021
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`Dated: September 20, 2021
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`Case 3:18-cr-04683-GPC Document 282-1 Filed 09/20/21 PageID.3204 Page 10 of 12
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`Dated: September 20, 2021
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`Dated: September 20, 2021
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`BIENERT KATZMAN
`LITTRELL WILLIAMS LLP
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`By: Whitney Z. Bernstein
` Thomas H. Bienert, Jr.
` James D. Riddet
` Whitney Z. Bernstein
` Carlos A. Nevarez
` Attorneys for Mohammed Abdul Qayyum
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`BIRD, MARELLA, BOXER, WOLPERT,
`NESSIM, DROOKS, LINCENBERG &
`RHOW, P.C.
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`By: Nicole Rodriguez Van Dyk
` Gary S. Lincenberg
`Nicole Rodriguez Van Dyk
` Darren L. Patrick
` Attorneys for Petr Pacas
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`DEFENDANTS’ MOTION FOR RECONSIDERATION OF MOTION FOR DISCOVERY OF
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`Case 3:18-cr-04683-GPC Document 282-1 Filed 09/20/21 PageID.3205 Page 11 of 12
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`CERTIFICATE OF AUTHORIZATION TO SIGN ELECTRONIC SIGNATURE
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`Pursuant to section 2(f)(4) of the Electronic Case Filing Administrative Policies and
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`Procedures of the United States District Court for the Southern District of California, I
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`certify that the content of this document is acceptable to counsel for the Defendants and
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`that I have obtained authorization from Randy K. Jones, Whitney Z. Bernstein, and Nicole
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`Rodriguez Van Dyk.
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`Dated: September 20, 2021
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`By: s/Jessica C. Munk
` Jessica C. Munk
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`10
`DEFENDANTS’ MOTION FOR RECONSIDERATION OF MOTION FOR DISCOVERY OF
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`Case 3:18-cr-04683-GPC Document 282-1 Filed 09/20/21 PageID.3206 Page 12 of 12
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`CERTIFICATE OF SERVICE
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`Counsel for Defendant certifies that the foregoing pleading has been electronically
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`served on the following parties by virtue of their registration with the CM/ECF system:
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`AUSA Melanie K. Pierson
`AUSA Sabrina L. Feve
`AUSA Ashley E. Goff
`U.S. Attorney’s Office
`880 Front Street, Rm 6293
`San Diego, CA 92101
`melanie.pierson@usdoj.gov
`sabrina.feve@usdoj.gov
`ashley.goff@usdoj.gov
`
`Candina S. Heath
`Department of Justice
`1301 New York Avenue NW, Suite 600
`Washington, DC 20530
`candina.heath2@usdoj.gov
`
`
`
` I
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` certify under penalty of perjury under the laws of the United States of
`America that the foregoing is true and correct.
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`Executed on September 20, 2021, at San Juan Capistrano, California.
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`s/Jessica C. Munk
`Jessica C. Munk
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