Motion for Discovery and Disclosure — United States v. Abdulkadir Nur Salah (D. Minn., Doc. 457)

Summary

A Motion for Discovery and Disclosure, filed 01/14/25 as Doc. 457 in United States v. Abdulkadir Nur Salah (4), Case No. 22-CR-223(4)(NEB/DTS), in the U.S. District Court for the District of Minnesota. Salah asks for three categories of disclosure. First, he asks for details of the government's taint and filter procedures, after the defense found an exhibit reflecting a communication with his lawyer and the government said the privilege was waived because the email was forwarded to a co-defendant. Second, he asks for complete Rule 16 production of data seized from Google and other online providers. Third, he asks for Giglio and criminal history disclosures for the government's witnesses. He states that the defense is not alleging any violation at this time.

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“Motion for Discovery and Disclosure — United States v. Abdulkadir Nur Salah (D. Minn., Doc. 457).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-united-states-v-bock-et-al-feeding-our-future-dkt-457-d-m-6635d73124/, SHA-256 23d3ef0b5623369aa069324caa51a00f461efb3eae72152ac8493a934a07a67d.

Full text

CASE 0:22-cr-00223-NEB-DTS Doc. 457 Filed 01/14/25 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA

UNITED STATES OF AMERICA, Case No. 22-CR-223(4)(NEB/DTS)

Plaintiff,

v. MOTION FOR DISCOVERY AND
DISCLOSURE
4. ABDULKADIR NUR SALAH,

Defendant.

Defendant Abdulkadir Salah moves for the following discovery and disclosures

based on recent developments.

I. MOTION FOR DISCLOSURES REGARDING TAINT/FILTER
PROCEDURES.

After receiving the government’s exhibit list and beginning to review exhibits, the

defense identified an exhibit reflecting a communication with a lawyer who regularly

represented Defendant Abdulkadir Salah and his companies. On Saturday, January 11,

2025, the defense identified the exhibit to the prosecution and asked to speak with

someone from the U.S. Attorney’s Office’s taint team to discuss whether the taint team

agreed that the document is privileged and the process the taint team followed to conduct

a privilege review.

In response, on January 12, the prosecution team asserted that the document is not

privileged because it was forwarded to one of the co-defendants in this case (who is not

set for trial on February 3). The prosecution did not respond to the defense’s request to

identify a taint team member who could speak to the defense about the filter process.
CASE 0:22-cr-00223-NEB-DTS Doc. 457 Filed 01/14/25 Page 2 of 7

The defense followed up with the following questions in two separate emails on

January 12 and January 13:

How did the government determine that the person [to whom the email was
forwarded] was not a joint client or otherwise within the scope of the
attorney client relationship?

Did the prosecution team make that determination, or did you use a taint
team?

If so, who can I talk to from the taint team to understand their procedures?
I ask because there are other privileged documents in the production.

What taint procedures were followed and how did the government make
decisions about your position that the privilege was waived for F-22 (and
any other documents)?

On January 13, the prosecution team reiterated that their position was that the

document was non-privileged. The prosecution team also stated “[w]e followed a filter

procedure to identify and remove privileged emails or communications—this generally

involves identifying potentially privileged email domains and removing any emails sent

to or from that domain from the project so that the investigation team does not have

access to those potentially privileged communications.” Again, the prosecution did not

respond to the defense’s request to identify a taint team member that the defense could

speak to or provide any information about the process for determining that the email was

nonprivileged.

The undersigned responded on January 13 with the following continuing inquiries

regarding the prosecution’s taint and filter process:

Thanks for confirming that you used a filter procedure. However, I’d ask
that you answer my remaining questions. There are several documents in
the EML bates range that were produced in this case that involve lawyers

2
CASE 0:22-cr-00223-NEB-DTS Doc. 457 Filed 01/14/25 Page 3 of 7

and legal domains. There are 57 documents involving the same legal
domain as [Government Exhibit] F-22. My client regularly obtained advice
from this same particular lawyer. I understand that the government has
decided the document is non privileged, but you haven’t explained how the
government came to the decision that the forward vitiated the privilege, [or]
who made the decision. The forwarded email leaves open the possibility of
a joint representation.

Also, if attorney domains were supposed to be filtered, why weren’t F-22
and several other documents with this attorney domain and other attorney
domains filtered out (including seemingly Faegre)? Was the filter limited
to the to/from/cc metadata fields? Which domains were filtered? What did
the prosecution team do when it came across a potentially privileged
document?

As of the filing of this motion, the prosecution has not responded to the defense’s

last email on this issue. Given the short time before the pretrial conference, the defense

files this motion to preserve the issue and seek a Court order requiring the government to

provide detailed information regarding its privilege taint/filter procedure.

As then Magistrate Judge Menedez explained in detail in United States v. Adams,

2018 WL 6991106, No. 0:17-cr-00064 (DWF/KMM), there are a number of potential

Constitutional concerns and remedies where a prosecutor intentionally or repeatedly

accesses a defendant’s privileged materials. While the defense is not alleging that any

such violations occurred at this time, further information from the prosecution is

necessary to demonstrate that a proper taint process was followed and that it effectively

minimized the chances that the prosecution team would review Defendants’ privileged

emails.

3
CASE 0:22-cr-00223-NEB-DTS Doc. 457 Filed 01/14/25 Page 4 of 7

Defendant Abdulkadir Salah requests a Court order requiring the United States to

provide detailed information regarding the following topics no later than two business

days after the pretrial conference:

1) The specific process the United States followed to reach its determination that

the privilege over emails was waived due to forwarding the email to a third

person.

2) (a) An identification of who made decisions that privilege was waived through

forwards; and (b) a description of what steps, if any, were followed to

determine whether the person to whom emails were forwarded was jointly

represented by the lawyer.

3) A list of the domain names and other search terms that were used to attempt to

filter out privileged emails.

4) A detailed description of how this filtering process was conducted.

5) A confirmation of whether a taint team was established and an identification of

its members.

6) A description of the taint team’s processes and procedures.

7) A description of what the prosecution team did when it came across a

potentially privileged email during its review to avoid being exposed to

privileged communications.

8) The production of any documents related to the taint and filter procedures

followed in this case.

4
CASE 0:22-cr-00223-NEB-DTS Doc. 457 Filed 01/14/25 Page 5 of 7

II. Motion for Complete Rule 16 Disclosures of All Data Seized From Google and
Other Online Service Providers Related to Online Accounts.

On January 9, 2025, the defense informed the United States that it had failed to

produce email account attribution information (and any data except for email) for over

twenty of the Google accounts it obtained through search warrants. After a series of

back-and-forth emails, the United States has taken the position that it will only provide

Defendant Abdulkadir Salah with copies of the complete set of information it seized from

Google accounts that belong personally to Mr. Salah, and not for the numerous

individuals the United States alleges as co-conspirators. Thus, even though it has

produced substantive email it seized from Google to all Defendants – even Defendants in

separate indictments – it now will not produce even the missing copies of attribution

information it seized from Google. This is despite that it has already produced some of

this attribution for alleged co-conspirators, and even after it produced a few of these

attribution documents for other alleged co-conspirators in a prior email exchange with the

undersigned.

The United States’ position is inconsistent with its own track record in this case

and its clear Rule 16 obligations to disclose all material it seized from Google and other

service providers. This position is untenable given that the United States has never

previously made the unproduced Google data it seized available for inspection or copying

(or provided copies).

Against this backdrop, the defense will be materially prejudiced by any further

delay in the United States’ production of copies of all information it has seized from all

5
CASE 0:22-cr-00223-NEB-DTS Doc. 457 Filed 01/14/25 Page 6 of 7

Google accounts (and other online accounts) for which it has disclosed some email or

data to the Defendants. Indeed, even without prejudice, the United States’ continued

delay in producing clear Rule 16 evidence could warrant sanctions as serious as

suppression or dismissal. See United States v. Davis, 244 F.3d 666, 670-672 (8th Cir.

2001)

Given the short time before trial, the United States should not be allowed to

further disadvantage the Defendants by merely offering the inspection and copying of

these materials, particularly where the United States has so far violated its discovery

obligations. The Court should order the United States to immediately provide copies to

the defense of all data it seized from Google or other service providers via search

warrants, or to certify in writing that all such seized materials have already been copied

and produced. If the United States provides such a certification, it should be ordered to

list the Bates numbers of the copies of all the materials it has seized.

III. Giglio and Criminal History Disclosures.

A review of the United States’ discovery demonstrates that the government has not

disclosed all of the criminal histories and Giglio information for several of the witnesses

on its witness list. Given the short time before trial, the United States should be ordered

to immediately produce updated criminal histories, plea agreements, proffer letters,

proffer interviews, recordings, and any and all other criminal history and Giglio

information for all witnesses on its list.

The defense notes that it raised this request to the United States via email shortly

before filing this motion, and the United States has not had sufficient time to respond to

6
CASE 0:22-cr-00223-NEB-DTS Doc. 457 Filed 01/14/25 Page 7 of 7

that email. The defense raises this issue in this motion to preserve the issue, given the

short time remaining before the pretrial conference.

Dated: January 14, 2025 GREENE ESPEL PLLP

s/ Surya Saxena
Surya Saxena, Reg. No. 0339465
Nicholas Scheiner, Reg. No. 0402470
222 S. Ninth Street, Suite 2200
Minneapolis, MN 55402
ssaxena@greeneespel.com
nscheiner@greeneespel.com
(612) 373-0830

Attorneys for Defendant Abdulkadir Nur
Salah

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