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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
`
`WIECHERT, MUNK &
`GOLDSTEIN, PC
`David W. Wiechert, SBN 94607
`Jessica C. Munk, SBN 238832
`27136 Paseo Espada, Suite B1123
`San Juan Capistrano, CA 92675
`Telephone: (949) 361-2822
`Email: dwiechert@aol.com
` jessica@wmgattorneys.com
`
`Attorneys for Jacob Bychak
`
`BIRD, MARELLA, BOXER,
`WOLPERT, NESSIM, DROOKS
`LINCENBERG & RHOW P.C.
`Gary S. Lincenberg, SBN 123058
`Nicole R. Van Dyk, SBN 261646
`Darren L. Patrick, SBN 310727
`Alexis A. Wiseley, SBN 330100
`1875 Century Park East, Floor 23
`Los Angeles, CA 90067
`Telephone: (310) 201-2100
`Email: glincenberg@birdmarella.com
` nvandyk@birdmarella.com
` dpatrick@birdmarella.com
` awiseley@birdmarella.com
`
`Attorneys for Petr Pacas
`
`BIENERT KATZMAN
`LITTRELL WILLIAMS LLP
`Thomas H. Bienert, Jr., SBN 135311
`James D. Riddet, SBN 39826
`Whitney Z. Bernstein, SBN 304917
`Carlos A. Nevarez, SBN 324407
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`Telephone: (949) 369-3700
`Email: tbienert@bklwlaw.com
`
` jriddet@bklwlaw.com
`
` wbernstein@bklwlaw.com
` cnevarez@bklwlaw.com
`
`Attorneys for Mohammed Abdul Qayyum
`
`
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`Case No. 18-CR-4683-GPC
`
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
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`Case No. 18-CR-4683-GPC
`
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
`
`IN THE UNITED STATES DISTRICT COURT
`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 TO
`DISMISS BASED ON
`OUTRAGEOUS GOVERNMENTAL
`MISCONDUCT
`
`
`Date: April 1, 2022
`Time: 2:30 p.m.
`Dept.: 2D
`
`[Declaration of Gary S. Lincenberg
`submitted herewith under seal]
`
`

`

`Case 3:18-cr-04683-GPC Document 329-1 Filed 02/18/22 PageID.4150 Page 3 of 30
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`
`TABLE OF CONTENTS
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`Page
`
`I.
`II.
`
`C.
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`INTRODUCTION ................................................................................. 1
`BACKGROUND ................................................................................... 2
`A.
`Procedural Background. .............................................................. 2
`B.
`The Government Has Known About the Relevant
`Attorney-Client Relationships For Years. .................................. 4
`Invasions of the Defense Camp. ................................................. 6
`1.
`Counsel Investigated Spamhaus’s ROKSO
`Database. ........................................................................... 6
`The Informant Shared ROKSO Search Terms
`with the Government for Years. ....................................... 6
`Invasions of the Attorney-Client Privilege. ................................ 9
`D.
`III. ARGUMENT ...................................................................................... 12
`A. Defense Counsel’s Case-Related Research Constitutes
`Attorney Work Product. ............................................................ 12
`Correspondence With Legal Counsel is Facially
`Privileged. ................................................................................. 13
`The Government’s Outrageous Conduct Violates
`Defendants’ Fifth and Sixth Amendment Rights. ..................... 14
`1.
`The Government Deliberately Intruded into the
`Defense Camp. ................................................................ 15
`The Government Deliberately Intruded into
`Defendants’ Attorney-Client Relationships. .................. 16
`The Government Has the Heavy Burden of Proving No
`Prejudice. ................................................................................... 18
`1.
`Defendants Have Made a Prima Facie Showing
`Under Danielson. ............................................................ 18
`The Government Cannot Meet its Heavy Burden of
`Showing No Prejudice On the Papers. ........................... 19
`Dismissal is the Appropriate Remedy for the
`Government’s Misconduct. ....................................................... 21
`Alternatively, the Court Should Preclude Witnesses and
`Evidence. ................................................................................... 22
`IV. CONCLUSION ................................................................................... 23
`Case No. 18-CR-4683-GPC
`
`i
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
`
`2.
`
`2.
`
`2.
`
`B.
`
`C.
`
`D.
`
`E.
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`F.
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`United States v. Aguilar,
`831 F. Supp. 2d 1180 (C.D. Cal. 2011) .............................................. 21, 22
`United States v. Bundy,
`968 F.3d 1019 (9th Cir. 2020) .................................................................. 21
`United States v. Chapman,
`524 F.3d 1073 (9th Cir. 2008) ............................................................ 21, 22
`United States v. Chen,
`99 F.3d 1495 (9th Cir. 1996) .................................................................... 13
`United States v. Danielson,
`325 F.3d 1054 (9th Cir. 2003) .......................................................... passim.
`In re Grand Jury Subpoenas,
`454 F.3d 511 (6th Cir. 2006) .................................................................... 20
`United States v. Harrison,
`213 F.3d 1206 (9th Cir. 2000) .............................................................. 3, 22
`United States v. Haynes,
`216 F.3d 789 (9th Cir. 2000) .................................................................... 14
`Hickman v. Taylor,
`329 U.S. 495 (1947) ................................................................................. 12
`In re Lidoderm Antitrust Litig.,
`No. 14-MD-02521-WHO, 2015 WL 7566741
`(N.D. Cal. Nov. 25, 2015) ......................................................................... 13
`People v. Joly,
`No. 354379, 2021 WL 935704 (Mich. Ct. App. Mar. 11, 2021) ............. 23
`United States v. Horn,
`29 F.3d 754 (1st Cir. 1994) ...................................................................... 23
`United States v. Irwin,
`612 F.2d 1182 (9th Cir. 1980) ............................................................ 14, 16
`United States v. Kastigar,
`406 U.S. 441 (1972) ................................................................................... 2
`Case No. 18-CR-4683-GPC
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`United States v. Marshank,
`777 F. Supp. 1507 (N.D. Cal. 1991) ....................................... 18, 20, 21, 23
`United States v. Nobles,
`422 U.S. 225 (1975) ................................................................................. 12
`United States v. Obagi,
`965 F.3d 993 (9th Cir. 2020) .................................................................... 22
`United States v. Samango,
`607 F.2d 877 (9th Cir. 1979) .............................................................. 21, 22
`United States v. Segal,
`No. 02-CR-112, 2004 WL 830428 (N.D. Ill. Apr. 16, 2004)................... 12
`
`Skyline Wesleyan Church v. California
`Dep't of Managed Health Care,
`322 F.R.D. 571 (S.D. Cal. 2017) .............................................................. 13
`United States v. Stringer,
`535 F.3d 929 (9th Cir. 2008) .................................................................... 14
`United States v. Sullivan,
`No. CR 17-00401 JMS-KJM, 2020 WL 1815220,
`(D. Haw. Apr.9. 2020) .............................................................................. 23
`Upjohn Co. v. United States,
`449 U.S. 383 (1981) ................................................................................. 13
`United States v. Walther,
`652 F.2d 788 (9th Cir. 1981) .................................................................... 18
`United States v. Wirth,
`No. CRIM. 11-256 ADM/JJK, 2012 WL 1110540,
` (D. Minn. Apr. 3, 2012) ........................................................................... 13
`Other Authorities
`Fed. R. Civ. P. 26(b)(3) ................................................................................. 12
`
`
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`Case No. 18-CR-4683-GPC
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`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`
`I.
`Defendants Jacob Bychak, Mark Manoogian, Mohammed Abdul Qayyum,
`
`and Petr Pacas (collectively, “Defendants”) bring this Motion to Dismiss Based on
`Outrageous Governmental Misconduct (the “Motion”), in light of the
`government’s invasions of the attorney client privilege and of the defense camp.
`
`For years, FBI Special Agent Chabalko—the case agent at the helm of the
`government’s prosecution—has been using an informant (hereafter, “Informant”)1
`to gather privileged information and to willfully invade the defense camp.
`Defendants previously brought to the Court’s attention clear evidence showing that
`the Informant then knowingly transmitted this privileged information to the
`government in two ways: (1) first, by deliberately monitoring defense counsel’s
`online research and handing over defense counsel’s search terms on the Spamhaus
`website to the government; and (2) second, by sending the government facially
`privileged emails—which were not produced to the government in response to its
`grand jury subpoenas—and summarizing their contents.
`
`Attempting to evade accountability for this misconduct—and only after the
`Court ordered the government to investigate these incidents—Agent Chabalko now
`makes the untested assertion that the Informant was acting without his direction or
`acquiescence. Agent Chabalko first responded by submitting a declaration,
`misleadingly painting the Informant’s emails conveying privileged information as
`isolated incidents, and stating that the Informant’s conduct was “unsolicited.” But
`Agent Chabalko’s declaration was silent as to whether he had acquiesced in the
`Informant’s improper conduct. At the Court’s direction, he submitted a second
`declaration, this time self-servingly stating that he did not “passively approve” the
`Informant’s conduct.
`
`
`1 The government refers to the Informant as the “Spamhaus Source” or “SS.”
`
`
`
`
`
`Case No. 18-CR-4683-GPC
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`Agent Chabalko’s untested statements are flagrantly misleading. Agent
`
`Chabalko completely ignores evidence that the Informant had been sending him
`information about online research conducted by or on behalf of attorneys for four
`years prior to conveying defense counsel’s trial strategy information. Agent
`Chabalko likewise omits any reference at all to the summary of one of the
`privileged emails that the Informant sent to him, and glosses over the fact that he
`bypassed the taint team and sent privileged emails directly to the prosecution.
`
`Although the Court initially granted Defendants’ request to cross-examine
`Agent Chabalko to more fully establish the government’s misconduct, the Court
`later changed its position and canceled the evidentiary hearing. Still, the Court
`indicated that Defendants had sufficient evidence to bring this Motion.
`
`The government blatantly used the Informant to invade the attorney-client
`privilege and defense camp. The Court should therefore hold a hearing, pursuant to
`United States v. Kastigar, 406 U.S. 441 (1972) and United States v. Danielson, 325
`F.3d 1054 (9th Cir. 2003), to put the government to its burden of proof, and then
`determine the appropriate remedy. Given the government’s repeated misconduct
`and interference with Defendants’ right to counsel, Agent Chabalko’s failure to be
`entirely forthcoming in his sworn declarations, and Defendants’ inability thus far
`to fully develop the record of misconduct, the remedy should be dismissal. In the
`alternative, the Court should permit the Defendants to fully develop the record of
`misconduct that the government has sought to conceal for purposes of this motion
`and any appellate review.
`II. BACKGROUND
`Procedural Background.
`A.
`In late September 2021, the government produced emails from the Informant
`
`showing that the Informant had passed defense counsel’s search terms to the
`government. On October 18, 2021, Defendants filed a Supplemental
`Memorandum of Points and Authorities In Support of Defendants’ Motions for
`Case No. 18-CR-4683-GPC
`2
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
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`Reconsideration and to Compel. See ECF No. 295 (the “Supplemental MPA,”
`cited as “Supp. MPA”). In the Supplemental MPA, Defendants revealed evidence
`showing that the Informant had transmitted privileged information to the
`government.2 When Defendants filed the Supplemental MPA, there was nothing
`in the record suggesting that the government had ever instructed the Informant to
`stop accessing defense counsel’s work product or providing privileged
`information.
`At the November 18, 2021 hearing, after much argument and only when
`directly questioned by the Court, the government stated for the first time that, after
`receiving the Informant’s September 2021 emails, the government asked their
`internal ethics advisor for advice and instructed the Informant not to provide
`information about counsel’s online research. See Nov. 18, 2021 Hr’g Tr. 56:17-21.
`In light of this new information and the Court’s concerns about the Informant’s
`conduct, the Court scheduled an evidentiary hearing, during which Defendants
`would be permitted to question Agent Chabalko, and asked the parties to file
`additional papers regarding the scope of the hearing. Id. at 68:1-8, 72:13-16. On
`December 3 and 10, 2021, Defendants and the government respectively submitted
`their proposals. ECF Nos. 315 & 316. The government also submitted a
`declaration from Agent Chabalko. See ECF No. 316-1 (Dec. 10, 2021 Declaration
`of Special Agent Charles Chabalko, cited herein as “Chabalko Decl.”).
`On January 18, 2022, the Court changed its position and canceled the
`evidentiary hearing. The Court nevertheless expressed skepticism about Agent
`Chabalko’s declaration not having addressed whether he “acquiesced in any
`
`
`2 “Because the Supreme Court has determined that the knowledge of one
`government actor must be imputed to another,” unless otherwise noted herein,
`references to the “government” include both the investigative and prosecutorial
`agencies. United States v. Harrison, 213 F.3d 1206, 1215 (9th Cir. 2000), as
`amended (June 29, 2000) (emphasis added).
`
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`Case No. 18-CR-4683-GPC
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`improper conduct by his CHS.” Jan. 18, 2022 Hr’g Tr. at 5:21-24; see also id. at
`6:12-14. Thus, on January 21, 2022, Agent Chabalko filed a supplemental
`declaration, presumably to address this concern. See ECF No. 321 (Jan. 21, 2022
`Supplemental Declaration of Special Agent Charles Chabalko, cited herein as
`“Supp. Chabalko Decl.”). Defendants have not had the opportunity to question
`Agent Chabalko regarding either declaration.
`In this Motion, Defendants request that the Court hold a Kastigar/Danielson
`hearing and then determine the appropriate remedy. In light of the government’s
`repeated misconduct, and Defendants’ inability thus far to fully develop the record
`of misconduct, the remedy should be dismissal.
`The Government Has Known About the Relevant Attorney-
`B.
`Client Relationships For Years.
`The government has been investigating this case since 2013. From the
`investigation, the government knew that Company A had retained The Goodman
`Law Firm and its founder, Linda Goodman (together, “Goodman”), to provide
`legal advice regarding its email advertising business. The government also knew
`that Goodman had retained the Mandatus Corporation and its CEO, Adam Brower
`(together, “Brower”) to provide consulting services with respect to anti-spam
`organizations, such as the Spamhaus Project (“Spamhaus”), in order to help her
`provide legal advice.
`For example, on June 2, 2014, the Informant provided the government with a
`dossier containing “profiles of individuals” relating to this case including, among
`others, Goodman, Brower, and Company A’s CEO. See Ex. 1 (ADCONION-
`DISC02-REPORTS-01011 at 017).3 The profile of Goodman contained the name
`of her law firm, and stated that she “[w]orks with” Brower to advise her clients
`
`
`3 Exhibits are submitted under seal as attachments to the Under Seal Declaration
`of Gary S. Lincenberg (the “Lincenberg Declaration”).
`
`
`
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`Case No. 18-CR-4683-GPC
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`regarding their email marketing business. Ex. 2 (ADCONION-DISC39-01752 at
`766). The profile of Brower stated that he is an “e-mail delivery consultant” whose
`“[k]nown clients” include Goodman and Company A. Id. at 765. The profile of
`Company A’s CEO stated that she had hired Goodman as legal counsel for
`Company A. Id. at 768. Thus, at least as of June 2, 2014, the government was
`well aware of the attorney-client relationship between Goodman and Company A,
`and of the presumptively privileged consulting relationship between Goodman and
`Brower.
`On January 16, 2018, Brower made a small document production to the
`government in response to a grand jury subpoena. The production contained a
`letter in which Goodman advised Brower that she was “assert[ing] the attorney
`work product and attorney client privileges.” Ex. 3 (ADCONION-MANDATUS-
`062-00005). Goodman explained that because Brower’s “[s]ervices … were
`undertaken under a contract with [Goodman] … the work, communications and
`documents fall within the scope of the privileges.” Id. (emphasis added). Thus,
`on January 16, 2018, the government was reminded of the ongoing attorney-client
`relationship involving Goodman, and of the presumptively privileged consulting
`relationship between Goodman and Brower.4
`
`On October 31, 2018, the government filed the Indictment. See ECF No. 1.
`Shortly thereafter, counsel of record for Defendants entered their appearances in
`this case. See ECF Nos. 8, 22, 31-34. Further, during the year prior to the
`Indictment, the government and many counsel of record had met, and the
`
`
`4
` Despite Goodman’s clear invocations of privilege, Brower produced his
`emails, and the government decided to review them – a decision that defense
`counsel understands became the basis for under seal briefing concerning a
`protective order. Defendants understand that the protected nature of Brower’s
`work with Goodman was not resolved by the Court until late 2018. In any event,
`as discussed more fully below, the government’s invasion of the attorney-client
`privilege extends beyond Goodman’s emails with Brower.
`
`
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`Case No. 18-CR-4683-GPC
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`government was aware of counsel’s representation. Thus, by early November
`2018, the government had not only known of the attorney-client relationship
`involving Goodman, and of the presumptively privileged consulting relationship
`between Goodman and Brower, but the government also knew of the attorney-
`client relationships between Defendants and their counsel in this case.
`Invasions of the Defense Camp.
`
`C.
`Counsel Investigated Spamhaus’s ROKSO Database.
`1.
`Spamhaus maintains a series of registries and “blocklists,” which claim to
`
`identify entities and individuals that Spamhaus has decided are involved in spam
`operations. Spamhaus’s blocklists play a prominent role in this case. Between
`December 2010 and September 2014, the period of the alleged conspiracy, the
`names of key witnesses and the netblocks at issue appeared on Spamhaus’s
`blocklists. One such list is called the Register of Known Spam Operations
`(“ROKSO”).5 As explained in the Supplemental MPA, the Informant used the
`blocklists as a tactic to induce key witnesses to provide information during the
`government’s investigation. See Supp. MPA at 16-17. Thus, defense counsel
`visited Spamhaus’s website, and the ROKSO database in particular, to investigate
`the basis for the claims against Defendants and develop their defense.
`The Informant Shared ROKSO Search Terms with
`2.
`the Government for Years.
`
`In September 2021, the Informant sent the government two emails
`
`containing search terms used in Spamhaus’s ROKSO database. On September 21,
`the Informant sent the government a list of Brower’s search terms. Ex. 4
`(ADCONION-DISC45-00001). In his email, the Informant again reminded the
`government that Brower “teams up with” Goodman, and “is regularly searching
`
`
`5 See https://www.spamhaus.org/rokso/.
`
`
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`Case No. 18-CR-4683-GPC
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`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
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`our public ROKSO database for information related to this case.” Id.6 (emphasis
`added). On September 26, the Informant again emailed the government a list of
`search terms used by defense attorneys in Spamhaus’s ROKSO database. Ex. 5
`(ADCONION-DISC46-00001). The email included the attorney’s name, search
`string and the date, time and location of the search. Id.
`
`In his declaration, Agent Chabalko, stated:
`I did not ask SS to provide any information regarding searches
`conducted by defense counsel by accessing the publicly available
`Spamhaus website and ROKSO database. I received two such
`emails from SS, and immediately forwarded them to the U.S.
`Attorney’s office. After receiving advice from the U.S. Attorney’s
`office, I sent an email to SS on October 18, 2021, requesting that SS
`cease providing such information to us.
`
`Chabalko Decl. ¶ 11. But Agent Chabalko’s declaration was silent as to whether
`he had acquiesced in the Informant’s pattern of tracking ROKSO searches
`conducted by or on behalf of attorneys (the very issue that Defendants raised with
`the Court at the November 18, 2021 hearing). At the Court’s direction, Agent
`Chabalko submitted a supplemental declaration, claiming that:
`
`On Tuesday, September 21, 2021, SS sent me an email indicating
`that one defense attorney’s law firm subscribed to Spamhaus’ email
`filtering system. The email also indicated that a former Spamhaus
`employee, possibly employed by outside counsel for Company A,
`had conducted queries of the Spamhaus’ public database known
`as ROKSO (Register of Known Spam Operations).
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`I forwarded the email to the U.S. Attorney’s Office and sought
`advice. Before I received any advice, SS sent me another email on
`Sunday, September 26, 2021, that indicated two defense attorneys’
`law firms also had conducted queries of Spamhaus’ public
`
`
`6 While the database is publicly accessible, the history of users, their specific
`search terms, and the dates and times of searches are not public information, and is
`information the government would not have but for the Informant or a duly-
`authorized subpoena.
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`Case No. 18-CR-4683-GPC
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`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
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`ROKSO database. Both of SS’s September 2021 emails listed the
`terms queried of Spamhaus’ public ROKSO database, but did not
`identify the query results. Neither I nor the FBI directed SS to obtain
`this or any information regarding queries by members of the defense
`team of Spamhaus’ public ROKSO database, nor did I passively
`approve such conduct.
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`After receiving advice from the U.S. Attorney’s office, I sent an
`email to SS on October 18, 2021, requesting that SS stop providing
`such information to the government.
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`Supp. Chabalko Decl. ¶¶ 6-8 (emphasis added).
`
`Both of Agent Chabalko’s declarations fail to disclose that the Informant had
`been gathering and sharing information about ROKSO searches conducted by or
`on behalf of attorneys for at least four years before Agent Chabalko claims to
`have asked the Informant stop. For example:
`• On September 15, 2017, the Informant sent Agent Chabalko an email
`attaching information about Brower’s searches in Spamhaus’s
`ROKSO database. The Informant explained that he was providing
`the information because it “gives you an idea of what they were up
`to, and that they were well aware that they were using hijacked IP
`blocks.” Ex. 6 (ADCONION-DISC26-03813) (emphasis added).
`
`• On March 27, 2018, the Informant sent Agent Chabalko an “updated
`… spreadsheet of SBL and ROKSO records” accessed by Brower,
`noting, “[i]t looks like he is still working with Linda Goodman and
`still very interested in many listings related to [Company A].” Ex. 7
`(ADCONION-DISC26-03550) (emphasis added).
`
`• On April 27, 2018, the Informant sent Agent Chabalko “updated logs
`of the things [Brower] is accessing,” noting that “[i]t seems like he’s
`still very interested in” companies “suspected to be working with
`[Company A].” Ex. 8 (ADCONION-DISC26-04227).
`
`• On June 26, 2018, the Informant sent Agent Chabalko another
`“[u]pdate on [Brower’s] website access,” explaining that “he’s
`accessing a lot of records on spam operations,” including with respect
`to the Company A. Ex. 9 (ADCONION-DISC25-00966).
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`Case No. 18-CR-4683-GPC
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`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
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`• On July 10, 2018, the Informant sent Agent Chabalko the “[l]atest
`[Brower] ROKSO searches,” indicating that “[h]e seems worried
`about any connections between Linda Goodman” and Company A.
`Ex. 10 (ADCONION-DISC26-02780) (emphasis added).
`
`As explained above, when the government received each one of these emails, the
`government was well aware of the attorney-client relationship involving Goodman,
`and of the presumptively privileged consulting relationship between Goodman and
`Brower.
`
`Thus, it should have come as no surprise when, on September 21, 2021, the
`Informant emailed Agent Chabalko a list of search terms “related to this case”
`that Brower had used in the ROKSO database. Ex. 4. And it should have come as
`even less of a surprise when, on September 26, 2021, the Informant emailed Agent
`Chabalko a list of search terms used by counsel for Defendants to conduct case-
`related research in the ROKSO database. Ex. 5. Yet, even after these incidents, by
`Agent Chabalko’s own recounting, he inexplicably waited another month, until
`October 18, 2021, to request that Informant cease providing information about the
`defense camp’s privileged activities. Chabalko Decl. ¶ 11.
`
`Invasions of the Attorney-Client Privilege.
`D.
`On September 27, 2017, the Informant told the government that he had
`
`internal Company emails, some of which involved Goodman.7 Ex. 11
`(ADCONION-DISC25-00864). On October 12, 2017, the Informant sent the
`government a zip file called “interesting emails,” which contained the documents
`previewed in his September 27th email. Ex. 12 (ADCONION-DISC27-00001).
`On November 8, 2018, the Informant emailed the government twice—first,
`
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`7 The privilege holder for the facially privileged documents is Company B. In
`May 2013, when the privileged communications at issue occurred, Goodman
`served as outside counsel for both Company A and Company B. In 2014,
`Company A acquired Company B’s email advertising business.
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`Case No. 18-CR-4683-GPC
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`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
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`Case 3:18-cr-04683-GPC Document 329-1 Filed 02/18/22 PageID.4162 Page 15 of 30
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`attaching another zip file called “Interesting Emails Fixed,” which contained the
`same documents he provided on October 12, 2017 (Ex. 13 (ADCONION-DISC27-
`00131)), and second, telling the government to “Read the linda_libel.txt email in
`particular,” referring to one of the facially privileged emails in the zip file, and
`summarizing the contents of that email. Ex. 14 (ADCONION-DISC26-03542).
`
`In response, the government submitted a declaration from Agent Chabalko,
`stating, in relevant part:
`
`In an unsolicited email on September 27, 2017, SS advised that SS had
`received internal emails from a source, some of which involved an
`attorney. SS asked, “does attorney/client privilege prevent you from
`viewing them?” On October 12, 2017, I received an unsolicited email
`from SS with the attached zip file “Interesting Emails.zip” containing
`documents and the message from SS, “Here are some interesting
`emails.” I did not review this zip file attachment, instead I emailed the
`U.S. Attorney’s Office for advice. Later that day, after receiving their
`advice via email, I sealed the attachment, pending a filter team review,
`and did not review the documents in the zip file, nor did I discuss the
`documents or the content of the documents with SS.
`
`… On November 8, 2018, I received an email from SS, this time with
`the attached zip file “Interesting Emails Fixed.zip,” containing what I
`believed to be the same document from the previously received zip file
`“Interesting Emails.zip.” Although I do not recall why SS sent this email
`with the “fixed” zip file, I believe that in preparing to provide
`documents to the U.S. Attorney’s Office for discovery, I noticed that the
`sealed zip file “Interesting Emails.zip” was corrupted, and I may have
`requested another copy from SS. I provided SS’s November email wi