Case 3:18-cr-04683-GPC Document 334 Filed 03/04/22 PageID.4331 Page 1 of 27
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`
`RANDY S. GROSSMAN
`Acting United States Attorney
`MELANIE K. PIERSON
`SABRINA L. FEVE
`Assistant U.S. Attorneys
`California Bar No. 112520/226590
`Office of the U.S. Attorney
`880 Front Street, Room 6293
`San Diego, CA 92101
`Tel: (619) 546-7976
`Fax: (619) 546-0631
`Email:Melanie.Pierson@usdoj.gov/Sabrina.Feve@usdoj.gov
`
`CANDINA S. HEATH
`Senior Counsel
`Texas Bar No. 09347450
`Computer Crime and Intellectual Property Section
`U.S. Department of Justice
`Washington, D.C. 20005
`Tel: (202) 307-1049
`Email: Candina.Heath2@usdoj.gov
`
`Attorneys for Plaintiff
`United States of America
`
`
`
`UNITED STATES DISTRICT COURT
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`
`
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`
`UNITED STATES OF AMERICA,
` Plaintiff,
`
` v.
`
`JACOB BYCHAK et. al.,
` Defendants.
`
`Case No. 18-CR-4683-GPC
`
`GOVERNMENT’S RESPONSE IN
`OPPOSITION TO DEFENDANTS’
`MOTION TO DISMISS FOR
`OUTRAGEOUS GOVERNMENT
`CONDUCT
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`I.
`Introduction
`The defense motion to dismiss for outrageous government conduct fails for two
`overarching reasons: 1) the government did not review privileged communications or
`otherwise invade the work-product privilege; and 2) the alleged misconduct involving
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`Case 3:18-cr-04683-GPC Document 334 Filed 03/04/22 PageID.4332 Page 2 of 27
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`Spamhaus’s website were actions by a private person, the Spamhaus Source (SS), who
`was not acting at the direction of the government, and no prejudice occurred as a result.
`The defendants’ allegations regarding violations of attorney-client privilege rest
`upon three assumptions. First, that the inclusion of LG, an outside counsel for both
`Company A and Company B, on any email with Company A or Company B employees
`automatically establishes that email as privileged. Second, that, by extension, any email
`between LG and a non-lawyer spam consultant, AB, is also automatically privileged.
`Third, that the government deliberately ignored the existence of this privilege before
`reviewing and producing these emails in discovery. These assumptions are factually and
`legally unsupported.
`The two emails identified by the defense as “facially” privileged involve an
`attorney, LG, with whom no defendant has a personal attorney-client relationship, and so
`provide no basis for the assertion of a violation of the defendant’s right to counsel.
`Moreover, those two emails were not privileged communications. Rather, as District
`Judge Barry Ted Moskowitz ruled in a written order of February 6, 2019, issued pursuant
`to the government’s grand jury investigation, the communications involving LG and the
`consultant AB related to business activities, rather than legal issues, and were therefore
`neither privileged nor work product. Judge Moskowitz’s finding that LG was acting in a
`business, rather than a legal capacity, defeats any alleged “facial” privilege for emails
`involving either her or her consultant, AB, and the litigation culminating in Judge
`Moskowitz’s Order shows that the government acted properly. Similarly, the prosecution
`team did not review the unsolicited LG emails that SS provided to the FBI until after a
`filter review had determined the communications were not privileged. Defendants’ claims
`that the government’s actions were improper are therefore unfounded.
`The defenses’ assertions regarding SS’s alleged misconduct are also infirm. While
`SS did provide the government with unsolicited logs of AB’s queries of the Spamhaus
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`Case 3:18-cr-04683-GPC Document 334 Filed 03/04/22 PageID.4333 Page 3 of 27
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`publicly available website prior to indictment, neither those queries nor any of the work
`undertaken by AB were privileged. Rather, Judge Moskowitz found that AB’s work with
`and for LG was business related, and not covered by attorney client privilege or work
`product. Again unsolicited, SS sent one email to the government in September of 2021,
`containing two individual two-word search terms attributed to two defense counsel’s firms
`used to query the Spamhaus website, and was advised by the government not to provide
`that sort of information in the future. The government also immediately produced SS’s
`email to the defense, along with SS’s other unsolicited emails. To the extent that search
`terms may be covered by work-product privilege, the privilege was waived by disclosure
`to an adverse third party (Spamhaus), which resulted in disclosure to another adverse party
`(the United States). Moreover, no defense strategy can be gleaned from the fact that one
`counsel’s firm queried the Spamhaus website using the name of its client and the other
`counsel’s firm queried the Spamhaus website for the name of the company that employed
`the individual who supplied the netblocks, so the defense can show neither prejudice nor
`gross misconduct.
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`II.
`Relevant Facts1
`On November 14, 2017, a federal grand jury subpoena was issued to an internet
`marketing consulting firm operated by AB for records it possessed relating to services it
`performed for various entities, including Company A and Company B. The firm was
`retained through outside counsel, LG, to assist with the deliverability of emails and
`avoidance of blocking by anti-spam organizations. In response to the subpoena, on
`February 2, 2018, the consulting firm provided a small number of documents. When the
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`1 The facts in this section are set forth in more detail in the Declaration of Assistant U.S.
`Attorney Melanie K. Pierson, filed under seal, in connection with this responsive pleading.
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`Case 3:18-cr-04683-GPC Document 334 Filed 03/04/22 PageID.4334 Page 4 of 27
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`government expressed its belief that compliance with the subpoena was incomplete, AB
`indicated that he had withheld (and transferred to LG at her direction) numerous
`documents that were responsive to the subpoena. AB provided a letter from LG, stating
`that her clients (Company A and Company B) were asserting attorney-client and work
`product privileges. By letter of February 13, 2018, the government advised the consulting
`firm that a privilege log was required, and that legal action to compel compliance with the
`subpoena might be taken.
`On February 15, 2018, the government was contacted by outside counsel
`representing AB. On February 21, 2018, AB’s counsel stated that he had reviewed the
`withheld documents and did not find them to be privileged. On February 23, 2018, AB’s
`counsel provided the government with a disc containing approximately 600 additional
`records, in compliance with the subpoena. After receipt of the disc, the case agents began
`reviewing the documents. When the agents noticed that the production included emails
`with LG, the agents stopped their review, and consulted with the U.S. Attorney’s Office.
`An interview with AB was requested to explore the relationship between the consulting
`firm, outside counsel, and the clients, so that the government could be assured again that
`the documents were not privileged before the review of the records continued.
`On April 12, 2018, the interview occurred, and AB stated that although he
`contracted with LG to provide the consulting services, he performed no services for LG.
`Instead, he provided advice to LG’s clients, transmitted through LG, about how to ensure
`the deliverability of their commercial email and how to avoid having it blocked as spam.
`AB stated that he was not an employee or agent of either client, had never communicated
`with anyone or acted on behalf of either client company, and was never informed of any
`pending or anticipated litigation involving either client company.
`Thereafter, on April 25, 2018, the government filed a motion with Judge
`Moskowitz, seeking to have the court determine the issue of privilege related to the
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`Case 3:18-cr-04683-GPC Document 334 Filed 03/04/22 PageID.4335 Page 5 of 27
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`documents produced by AB’s consulting firm pursuant to the subpoena. On June 1, 2018,
`the court declined to rule on the motion, finding no case or controversy existed, and noted
`that courts were not permitted to provide advisory opinions.
`On June 15, 2018, counsel for Company A and Company B filed a motion with
`Judge Moskowitz seeking a protective order preventing the government from reviewing
`the documents subpoenaed from AB’s consulting firm, based on claims of attorney-client
`and work product privilege. The government filed a responsive pleading on August 9,
`2018, to which replies were filed on September 19, 2018and the court heard argument on
`November 7, 2018.
`On February 6, 2019, Judge Moskowitz issued a written order2 (the “BTM Order”).
`Judge Moskowitz denied Company A and Company B’s motion for a protective order,
`finding that the documents were not protected either by attorney-client privilege or by the
`work-product doctrine, because they were prepared for a business rather than a legal
`purpose, and not in anticipation of litigation. After receiving the Court’s findings that no
`privileges existed, the government reviewed the records.
`On October 12, 2017, FBI Special Agent Chabalko contacted the U.S. Attorney’s
`Office and advised that he had received an email from a Spamhaus source (SS) with an
`attached zip file, which SS represented might contain emails with an attorney. Although
`the emails had been provided to SS by a third party, which generally operates as a waiver
`of any privilege, no further review of the emails was conducted, pending a review by a
`filter team or the development of additional facts regarding the origin of the emails. No
`effort was made to have a filter team review the emails or to develop facts regarding the
`origin of the emails at that time, because there was no reason to believe that such effort
`would produce evidence relevant to the prosecution of the four defendants.
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`2 This Order is attached to the Declaration of Assistant U.S. Attorney Melanie K. Pierson, and filed under seal.
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`Case 3:18-cr-04683-GPC Document 334 Filed 03/04/22 PageID.4336 Page 6 of 27
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`As part of the government’s efforts to meet its discovery obligations, the U.S.
`Attorney’s Office directed Special Agent Chabalko to provide the prosecutors with “all”
`emails between himself and SS. In response, Agent Chabalko electronically provided
`hundreds of pages of records. As the prosecutors were reviewing the email information
`provided to the FBI by SS, to process the same for production in discovery, a zip file was
`found which contained an email from outside counsel for Company A (LG). Review of
`the remaining materials was commenced by a filter team. The materials released by the
`filter team were disclosed to the defense in the discovery productions, and included the
`emails at issue in this motion involving LG. One of the email threads alleged to be
`privileged was also produced to the government via subpoena by both AB’s consulting
`firm and Company B.
`On September 21, 2021, Special Agent Chabalko forwarded to the U.S Attorney’s
`Office an approximately 11-page email he received unsolicited from SS earlier in the day,
`in which SS responded to the public filings that the defense submitted. In the email, SS
`noted various search terms used by AB to query the Spamhaus website, which, in the
`opinion of SS, were related to this case. This email was immediately produced as
`discovery. That same day, the prosecution consulted an ethics advisor.
`On Sunday, September 26, 2021, Special Agent Chabalko forwarded another
`unsolicited email he had received from SS, which set forth two queries3 of the Spamhaus
`website attributed to the IP addresses of two law firms representing two of the defendants
`in this case. One query was for the name of the law firm’s client, a named defendant in
`this case. The other query was for the name of the company that employed Daniel Dye,
`who is one of the defendants’ co-conspirators. SS’s email also was immediately produced
`as discovery, and thereafter, the prosecutors again consulted an ethics advisor.
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`3 Neither the queries by AB nor the queries by the defense firms will be a part of the government’s evidence in its case in
`chief.
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`Case 3:18-cr-04683-GPC Document 334 Filed 03/04/22 PageID.4337 Page 7 of 27
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`Nothing in the discussions with the ethics advisor in September and October of 2021
`led prosecutors to believe that any government misconduct had occurred. In spite of the
`lack of evidence of any misconduct, on October 18, 2021, the government contacted SS
`and requested that SS not send further information about any defense counsel’s queries of
`Spamhaus’s website to avoid even the appearance of impropriety.
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`III.
`Memorandum of Points & Authorities
`A. Relevant Legal Standard
`The dismissal of an indictment because of outrageous government conduct may be
`predicated on alternative grounds: a violation of due process or the court's supervisory
`powers.” United States v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991). To support
`dismissal on due process grounds, a defendant must show government conduct that “is so
`grossly shocking and so outrageous as to violate the universal sense of justice.” Id. (citing
`United States v. O'Connor, 737 F.2d 814, 817 (9th Cir. 1984)). That is, “the government's
`conduct” must be “so excessive, flagrant, scandalous, intolerable, and offensive as to
`violate due process.” United States v. Edmonds, 103 F.3d 822, 825 (9th Cir. 1996) (citing
`United States v. Garza-Juarez, 992 F.2d 896, 904 (9th Cir.1993)). With respect to a Fifth
`Amendment due process violation stemming from intrusion into the attorney-client
`relationship, to constitute outrageous government conduct a defendant must demonstrate:
`(1) the government was objectively aware of an on-going, personal attorney client
`relationship, (2) the government deliberately intruded into that relationship, and (3) as a
`result, the defendant suffered actual and substantial prejudice. United States v. Stringer,
`535 F. 3d 929, 941 (9th Cir. 2008).
`“Dismissal of an indictment with prejudice” under the court's supervisory power
`“necessarily implicates separation-of-powers principles” and represents the “most severe
`sanction possible.” United States v. Isgro, 974 F.2d 1091, 1097 (9th Cir. 1992).
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`Accordingly, dismissal of an indictment on these grounds is a “drastic” and “disfavored”
`remedy, and is “impermissible absent ‘a clear basis in fact and law for doing so.”’ Id.;
`United States v. Ross, 372 F.3d 1097, 1110 (9th Cir. 2004). To justify an exercise of the
`court's supervisory powers in this context, a defendant must show outrageous government
`misconduct that is both “flagrant” and causes him “substantial prejudice.” See Ross, 372
`F.3d at 1110; United States v. Jacobs, 855 F.2d 652, 655 (9th Cir. 1988).
`For the reasons discussed below, the defense has not come close to making any of
`these showings.
`B. Defendants Have Failed to Establish Conduct by a Government Agent
`Regardless of the basis for dismissal, the defense must first establish conduct by
`someone acting as an agent of the government. Where the activities alleged to be
`outrageous government conduct involve conduct by an informant, the first step in the
`inquiry is to determine whether the informant was an agent of the government at the time
`of the alleged outrageous actions. United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.
`1991). There is nothing improper about the disclosure of defense trial strategy to the
`government by a person who “was not working on behalf of the government.” United
`States v. Danielson, 325 F.3d 1054, 1068 (9th Cir. 2003).
`The Ninth Circuit has held that “a person does not become a government agent until
`his activities are under the direction and supervision of law enforcement officers.”
`Restrepo, 930 F.2d at 713 (citing United States v. Busby, 780 F. 2d 804 (9th Cir. 1986)).
`In United States v. Simpson, 813 F. 2d 1462, 1467-1468 (9th Cir. 1987), the court held
`that dismissal of the indictment was unwarranted, noting that “passive tolerance of private
`informant’s questionable conduct [is] less egregious than the conscious direction of
`government agents typically present in outrageous conduct challenges.” See also United
`States v. Ryan, 548 F. 2d 782, 791 (9th Cir. 1976) (private person was not acting as an
`agent for the government when there was no evidence that informant consulted with the
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`government prior to approaching the defendant). “Due process is not violated unless the
`conduct is attributable to and directed by the government.” United States v. Barrera
`Moreno, 951 F. 2d 1089, 1092 (9th Cir. 1991).
`Unlike this case, in the cases cited by the defense there was no dispute regarding
`whether the informant was acting at the behest of the government when the Constitutional
`violations occurred. To determine whether a third party is acting on behalf of the
`government for purposes of evaluating whether a Constitutional violation has occurred,4
`the Ninth Circuit has set forth a two-part test: (1) whether the government knew of and
`acquiesced in the intrusive conduct; and (2) whether the party performing the action
`intended to assist law enforcement efforts or further his own ends. United States v. Reed,
`15 F.3d 928, 931 (9th Cir. 1994). In looking at step two, if a private party has dual motives,
`that is a “legitimate, independent motivation to further its own ends” and a desire to assist
`law enforcement, the Ninth Circuit requires the Court to determine whether “the
`government’s participation” was “so extensive” as to rise to the level of a Constitutional
`violation. United States v. Cleaveland, 38 F.3d 1092, 1094 (9th Cir. 1994).
`Regarding the first prong of the test, whether the government knew of and
`acquiesced in the intrusive conduct, there is no evidence that the government affirmatively
`directed SS to: 1) obtain emails from CY, let alone emails involving LG, 2) provide emails
`from CY’s email account involving LG to the government, or 3) search Spamhaus’s own
`computer logs for queries of the Spamhaus website attributed to the defense. Moreover,
`when SS provided these unsolicited materials, the government did not acquiesce to the
`receipt of privileged information. Rather, the government sought and obtained a court
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`4 No precedent could be found describing a test for when a third party would be considered
`a government agent for purposes of evaluating a violation of the Sixth Amendment right
`to counsel or the Fifth Amendment right to due process. The test for evaluating when a
`private person is considered a government agent for purposes of analysis of a Fourth
`Amendment violation is most analogous.
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`order that determined that LG’s communications with AB were non-privileged business-
`related communications before reviewing them (see Section C.2., below), and employed
`a filter team for the LG emails provided by SS. Finally, any potential privilege involving
`the defense queries of Spamhaus’s records was waived by disclosure of the query to
`Spamhaus, which was and remains an adverse third party as evidenced by the defendants’
`work emails and court filings attacking Spamhaus. (See Section C.3., below). The defense
`has therefore not met the first prong of Reed.
`Turning to Reed’s second prong, whether the party performing the action intended
`to assist law enforcement efforts or further his own ends, SS and Spamhaus5 collected the
`information with the intent to further their own ends, that is, to prevent the sending of
`“spam,” which Spamhaus defines as “unsolicited bulk6 email.”7 The Spamhaus goal of
`eliminating all unsolicited commercial email goes well beyond what is criminally
`prohibited under the CAN-SPAM Act, which is fraud and false statements in connection
`with multiple commercial email messages. In fact, when the CAN-SPAM Act was passed
`in 2003, Spamhaus, created in 1998, described the Act’s “attempts to regulate rather than
`ban” spam to be a “serious mistake” that will result in “increasing spam volumes and the
`numbers of spammers8.”
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`5 Spamhaus itself does not block any emails. The commercial emails do not touch
`Spamhaus’ network, and are not intercepted or re-routed by Spamhaus. Instead, internet
`service providers voluntarily employ filters which use algorithms relying in part on
`information on whether particular IP addresses have been listed on the Spamhaus block
`lists for having sent what Spamhaus deemed to be spam. The filters, at the option of the
`service provider, may elect to accept, reject, or flag the email for further filtering.
`www.spamhaus.org/Section/Legal20%Questions/#107.
`6 Spamhaus defines “bulk” as meaning “the message is sent as part of a larger collection
`of messages with identical content.”
`7 www.spamhaus.org/faq/Section/Glossary/#181.
`8 www.spamhaus.org/organization/statement/005/spamhaus-position-on-can-spam-act-
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`That Spamhaus and SS obtained information on consultant AB and attorney LG is
`consistent with their independent motive to further their own ends. According to the
`defense’s exhibits, SS described AB as a “former Spamhaus volunteer,” claiming “to help
`spammers get Spamhaus SBL listings resolved for payment,” who “still claims to be a
`‘Spamhouse Insider’” even though he was “fired in 2008.” SS said that AB “sold his
`clients personal information about Spamhaus employees and volunteers, which they have
`used as a form of blackmail by implied threats.” LG was described by SS as someone who
`“works with ‘Spamhaus informant’ [AB]” and helps “clients clean up any problems with
`Spamhaus when caught spamming.” Decl. of Gary Lincenberg, Exs, p. 28-29. Regardless
`of the truth of these statements, they provide evidence of a powerful motive, independent
`of any intent to assist the government, for SS and Spamhaus to obtain information
`regarding AB and LG. In the face of such strong evidence of independent motives of
`Spamhaus and SS to obtain the information complained of, and the lack of any affirmative
`direction by the government to do so, it cannot be said that the government’s participation
`was “so extensive” as to rise to the level of a Constitutional violation.
`C. The Materials Obtained are Not Protected by Privilege.
`The party asserting attorney-client privilege has the burden of proof to establish all
`eight elements of the privilege, that is: (1) legal advice of any kind was sought (2) from a
`professional legal adviser in his or her capacity as such, (3) the communications related to
`that purpose, (4) the communications were made in confidence (5) the communications
`were made by the client, (6) the communications were to be permanently protected, at the
`client’s insistence (7) from disclosure by the client or by the legal adviser, and (8) the
`protection has not been waived. United States v. Martin, 278 F. 3d 988 (9th Cir. 2002).
`The fact that a person is a lawyer does not automatically make communications with them
`privileged. United States v. Chen, 99 F. 3d 1495, 1501 (9th Cir. 1996). The defendants in
`this case, at a minimum, are unable to establish elements 1, 2, and 8.
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`1. The Defendants Have No Protected Attorney-Client Relationship with LG
`In Martin, the Ninth Circuit found no attorney-client privilege was breached, in part
`because the defendant had failed to establish the existence of a personal attorney-client
`relationship. The attorney at issue was the general counsel for a corporation, and, as the
`court noted, the corporation’s privilege does not automatically extend to employees or
`officers. See also United States v. Plache, 913 F. 2d 1375, 1380-1382 (9th Cir. 1990)
`(attorney-client privilege with lawyer and accountant hired by lawyer cannot be asserted
`by officer who hired them because the privilege is held by the corporation).
`In United States v. Graf, 610 F.3d 1148, 1161 (9th Cir. 2010), the Ninth Circuit
`adopted a five-part test to determine if a corporate employee holds a joint privilege over
`communications with corporate counsel. The elements, which must be established by the
`defendant, are: (1) he approached the attorneys for the purpose of seeking legal advice;
`(2) when he did so, he made it clear to the attorneys that he was seeking legal advice in
`his individual rather than in his representative capacity; (3) the attorneys saw fit to
`represent him personally, knowing a conflict could arise; (4) his conversations with the
`attorneys were in confidence; and (5) the substance of his conversations with the attorneys
`did not concern matters within the corporation or the general affairs of the corporation.
`In this case, the defense acknowledges that the privilege holders with respect to
`communications with LG are the corporate entities, Company A and Company B. [ECF
`No. 329-1, p. 9, fn. 7]. Accordingly, because there was no personal attorney-client
`relationship between LG and the defendants, and no evidence that any of the individual
`defendants approached LG to represent them in their individual capacity (or any of the
`Graf factors, for that matter), they cannot claim a violation of their own Constitutional
`rights for any intrusion into the attorney-client relationship with LG. Because their claim
`of attorney-client privilege with LG fails, so must their claim of work product protection
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`for any work done on behalf of LG by consultant AB, since any insight into the thought
`processes of LG did not expose any legal strategy to which they were a party.
`2. The Communications with LG and AB were for a Business, Not Legal, Purpose
`“In order to show that a communication relates to legal advice, the proponent of the
`privilege must demonstrate that the ‘primary purpose’ of the communication was securing
`legal advice.” Chevron Corp., 1996 WL 264769, cited within United States v.
`ChevronTexaco Corporation, 241 F. Supp 2d 1065, 1076 (N.D. Cal, 2002) (emphasis in
`original). For documents that might serve both a business and litigation purpose,
`documents that reflect reasoning about strategies or analysis for litigation are viewed as
`protected legal communications, while documents that discuss only the logistics or
`mechanics of implementing the strategy are considered to be unprotected business records.
`Id. at 1085. Here, the two emails from LG identified by the defense as “facially privileged”
`serve primarily a business purpose, as they are, at most, a discussion of how to implement
`the strategy of avoiding adverse economic consequences from a listing on the Spamhaus
`block list.
`For materials prepared by agents or investigators on behalf of attorneys to qualify
`for protection under the work product doctrine, they must be prepared: (1) in anticipation
`of litigation, and (2) by or for another party, or that party’s representative. In re Grand
`Jury Subpoena (Mark Torf/Torf Environmental Management), 375 F. 3d 900, 907 (9th
`Cir. 2004). In this case, Judge Moskowitz ruled in February 2019 that LG’s
`communications with AB served a business purpose and, accordingly, neither LG’s nor
`AB’s communications with each other were protected by attorney-client privilege or work-
`product.
`Judge Moskowitz found no attorney-client privilege based on his determination that
`the communications at issue “involve gathering information about Spamhaus, rather than
`interpreting information from [Company A] or [Company B] to assist [LG] in providing
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`legal advice.” [BTM Order, p. 11]. Judge Moskowitz determined that the terms of the
`contract between LG and AB, along with the representations of the parties “demonstrate
`the primary purpose of the [ ] communications was to provide business advice,” which
`were not covered by attorney-client privilege. [BTM Order, p. 12]. Judge Moskowitz
`found that the parties’ communications were “primarily concerned with gathering
`information about a non-profit’s [Spamhaus] blacklist to preserve their business model
`and reputation, not to defend against or pursue litigation.” Judge Moskowitz further noted
`that the work performed by AB for LG did not involve AB interpreting information from
`the clients for LG, as required for attorney-client privilege to provide protection for third
`party consultants, citing, among others, the opinion of this court in Cohen v. Trump, 2015
`WL 3617124 *17 (S.D. Cal. June 9, 2015).
`Judge Moskowitz also found the work product privilege to be inapplicable to the
`documents involving LG and AB because the material was not prepared in anticipation of
`litigation. Judge Moskowitz noted that Company A emphasized that Spamhaus did not
`submit to the jurisdiction of the United States and does not litigate in the United States,
`making the possibility of any litigation with Spamhaus remote. Moreover, he found that
`the duties for which LG had been hired (to devise strategies to circumvent Spamhaus’
`blacklist, gather industry intelligence and mitigate reputational harm, among others) were
`just as well done by non-lawyers. [BTM Order, p. 15]. He therefore concluded that the
`work product doctrine was also inapplicable.
`The two emails involving LG that the defendants’ claim to be “facially privileged”
`are the same type of LG emails that Judge Moskowitz found to be related to business,
`rather than legal, advice and therefore not covered by attorney-client privilege. In fact, a
`version of the email thread identified as defense Exhibit 13A was provided to the
`government pursuant to subpoena by both Company B and AB’s firm. This overlap
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`demonstrates that both the Company B and Judge Moskowitz recognized the email was
`not privileged.
`The two LG emails cited by the defense convey LG’s thoughts on how to respond
`to a Spamhaus block listing and echo the responses drafted by AB for Company B. In prior
`communications between AB and LG, which Judge Moskowitz found not to be privileged,
`AB recommended a strategy that involved providing false information to Spamhaus, as he
`stated in one email “the difference is intentional, because the intent is to obfuscate rather
`than clarif