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Michael Cohen’s months-long legal battle captivated the public. With hush money payments to strippers and the National Enquirer as well as presidential tweet storms, it’s no surprise Cohen’s Dec. 12, 2018 sentencing was front-page news. But Cohen’s criminal saga arguably began with an issue dreaded by attorneys and judges alike: the potential disclosure of attorney-client privileged communications.
On April 9, 2018, the FBI raided the office, home, and hotel room of President Donald Trump’s personal attorney, Michael Cohen, seizing business records, emails, and electronic data. Because Cohen is an attorney, the documents seized needed to be reviewed for attorney-client privilege before they could be turned over to prosecutors.
Privilege review options were the subject of much debate. The court considered using Technology Assisted Review (TAR) to expedite the privilege review process, but ultimately—and correctly—decided against it. While TAR is a common and beneficial tool in civil litigations, it is improper and potentially unconstitutional as the sole arbiter for privilege review in criminal cases, particularly if required by courts.
Technology Assisted Review
Technology Assisted Review or TAR is a document review process where humans train software to identify potentially relevant documents. Since Magistrate Judge Peck’s 2012 opinion in Da Silva Moore v. Publicis Groupe & MSL Group, 287 F.R.D. 182 (S.D.N.Y. 2012), approving the use of TAR, many litigants—particularly those faced with large data sets—have embraced TAR for its efficiency and cost savings.
TAR technology has evolved considerably over the past six years. In earlier software programs, attorneys would review and code a “seed set” of data. The software identified certain properties about the seed set and used what it “learned” to code other data. Currently, there are software vendors working on tools where the learning and validation process is already built in. For example, you could apply a predefined “gender discrimination” training module to your client’s documents rather than training the software yourself.
The Debate: How to Review Cohen’s Documents for Privilege
Cohen wanted either his attorneys or a special master to review the seized documents for privilege. The federal prosecutors initially objected to the appointment of a special master, insisting that a “filter team”—a group of prosecutors and investigators who are not involved in the case but may work in the same office as those prosecuting the matter—review the seized materials for privilege.
On April 26, 2018, however, prosecutors withdrew their objection to the appointment of a special master and offered a “compromise position”—that a Special Master be appointed to conduct the privilege review using TAR. In support of this proposal, prosecutors provided a letter from retired Magistrate Judge Frank Maas, one of the government’s proposed candidates for Special Master. Judge Maas’ proposal described how a TAR process known as continuous active learning could be used to review the seized material and make privilege determinations.
Judge Maas’ proposal touted TAR’s speed and efficiency, suggesting that “the entire technology-assisted review of the electronic data could likely be accomplished in one to two weeks, and would not require the use of contract reviewers or associates.” Judge Maas further wrote that, while he “recognized the importance of this undertaking,” cost was a significant issue: “whether the Government or a master performs the initial review … the process of identifying those that are privileged and determining whether any privilege exceptions apply should not be inordinately expensive or time consuming.”
On April 26, 2018, the same day the government filed its letter advocating TAR, Judge Wood appointed the Hon. Barbara S. Jones as Special Master. At the hearing, Judge Wood noted that Judge Jones was familiar with TAR and was “technologically well suited to the job,” but left it to Judge Jones to decide how to conduct the privilege review. Ultimately, TAR was not required.
Rather, between May and July 2018, the government produced the seized documents to Cohen and certain parties who moved to intervene. Cohen and the intervenors reviewed the documents, identifying for the Special Master any documents they claimed contained privileged or highly personal information.
The Special Master reviewed the documents identified as privileged, frequently conferring with the parties. In the end, Cohen and the intervenors withdrew their privilege claims on over 2,000 documents with the Special Master recommending that all or part of approximately 7,400 documents were either privileged or highly personal and releasing over 1.3 million documents to the government. Neither Cohen nor the intervenors objected to the Special Master’s final recommendation.
While TAR was ultimately not used in the Cohen matter, the prosecution’s proposal is cautionary: TAR has been used to assist with privilege review, but for good reason has not been generally accepted as the sole arbiter of privilege.