Tuesday, November 15, 2016


The defense lawyers for Reza Zarrab, in a letter to the Court, have made a strong case for their position that the existing Protective Order in the case not only interferes with their ability to prepare a proper defense, it will give the US Attorney's Office a detailed preview of their trial strategy, and how they intend to present their client's case at trial.

In a letter to the trial judge, defense counsel lays out the huge volume of discovery that was turned over to them by the Government:

(1) Over 600,000 documents.
(2) 350,000 emails.
(3) Over 600,000 funds transfers.

In order for the defense to gain permission to show specific items of evidence to defense witnesses, to obtain an exception to the Protective Order, the defense must petition the Court, on a case-by-case basis, to get judicial approval. This gives the Government valuable insight into the defense's strategic decision-making, which is privileged, and similar to the argument supporting the Work Product Privilege*.

The Government's stated reason for the Protective Order with the emails, protection of an ongoing investigation is flawed. The defendant's right to prepare his defense outweighs any interest the government may have in keeping secret the seizure of the contents of an email box, from the target of an ongoing investigation. It is unlikely, the defense contends, that any such target, is not already aware that he or she may be under investigation, or that he or she is susceptible to arrest or extradition.

One has to conclude that the defense argument is sound, but given the rulings thus far in this case, the odds that the Court will revise a Protective Order that it has already found to be proper, are small.
* The actual trial strategy, and written or oral materials prepared by an attorney in preparation for litigation, are protected from discovery under the Work Product Privilege.

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