Mark Scott using document privilege to waste time in OneCoin case
Mark Scott’s attempts to hide evidence from the government continues…
At issue now are documents Scott claims are privileged, despite having been cleared by an independent taint team.
The first batch of around 30,000 documents has been screened by the taint team for privileged documents.
Having been filtered, documents deemed non-privileged are ready to be turned over to prosecutors.
In a July 10th letter motion, Mark Scott, through his attorney, has asked the court to stop the taint team from handing the documents over.
the taint team has not inspected the vast majority of the documents to determine whether they are privileged.
In support of his claim, Scott states his attorneys
took samples of the approximate 96,357 pages of documents and found a significant number of arguably privileged documents.
Scott goes on to state that some of the documents reference a lawyer that represented him, which he concludes is evidence the taint team hasn’t done their job properly.
The taint team’s sole job is to filter out documents that contain privileged information.
This covers any documents that contain substantive legal content or advice.
At the request of the taint team, Scott provided them with a list of attorneys and clients he’d dealt with.
Scott only agreed to hand over the list of attorneys and clients if the taint team agreed not to share it with the prosecution.
Once received, Scott’s list was added to a filter that, along with other terms, flagged potentially privileged documents for review.
Of the documents seized from Scott last year, there are some 30,000 that have been processed.
Of these documents, 7,800 were triggered by the taint team’s filter.
Each of these documents was individually reviewed by the taint team. This review saw 4200 documents deemed non-privileged and the rest flagged as potentially privileged.
Another filter test was run on the ~21,000 documents not deemed privileged in the first filter run.
This was done in order to
make sure that the key words did not need to be expanded, or that additional key words did not need to be added in order to identify the potentially privileged documents to undergo individual review.
Following this second run, the taint team was satisfied the ~21,000 documents in question were not privileged.
Normally these documents would be turned over to the prosecution. But as per an agreement with Scott, he was given access to the documents beforehand.
The Filter Team requested that the defendant identify documents over which he intended to assert privilege in a privilege log on or before May 14, 2019, so that those documents could be withheld and the remainder released to the Prosecution Team for responsiveness review.
After some back and forth a May 21st deadline was set. Scott never got back to the taint team and the deadline came and went.
In June a second batch of documents were ready for review. The taint team reached out to Scott and asked for a hard drive to copy the second batch of filtered documents onto for review.
Upon receiving communication from the taint team, Scott asked for an extension of time to review the first set of documents (bear in mind by this stage a month had passed since the initial deadline).
Upon conferring with the prosecution, a new July 1st deadline was set.
Of the 25,000+ documents provided to Scott, just ten were flagged as privileged.
It is on this basis Scott argues that the entire privilege process is insufficient.
Having reviewed the ten documents Scott flagged, the taint team cleared nine of them.
The documents contained no legal content or advice, were not prepared for the purpose of obtaining legal advice, were not confidential, or the privilege had been waived by inclusion of a third-party.
Now Scott is also refusing to review any more documents cleared by the taint team.
Scott claims “the process is too burdensome” and that he “does not have the resources to allocate to the review”.
The DOJ has responded to Scott’s financial burden claims by referencing Scott’s credit card records.
Said records detail Scott’s spending of
- $2700 on a one night December 2018 stay in a New York Four Seasons;
- $11,074 spent on Cartier luxury goods on February 15th, 2019;
- $6375 spent on Cartier luxury goods in Massachusetts on December 6th, 2018;
- $3740 spent on a limousine service in Florida on February 4th, 2019;
- $5021 and $4305 spent at a New York steak house in November and December 2018;
- $74,000 spent on Hermes luxury goods in Massachusetts in November 2018.
Whether Scott is personally footing his credit bill is unclear.
In any event, the government cites the above examples as evidence Scott is financially capable or organizing a review of cleared documents should he wish.
They’ve also addressed his assertion of privilege, and asked the court to deny Scott’s request to block the release of non-privileged documents to the prosecution.
The DOJ’s opposition response also renews their
request that the Court order the defense to provide the (attorney/client) List to the Prosecution Team.
The DOJ claims that
The Filter Team would typically provide the Prosecution Team with the list of attorneys (and in the case of attorney defendants like Scott, the list of clients) so that the Prosecution Team was aware of the privileges being asserted by the defendants.
The law is clear that such a list is not privileged and the defendant has failed to provide any support for his assertion that disclosure of the list would violate his Fifth Amendment rights.
What is supposed to happen after release by the taint team is a responsiveness review by the prosecution.
The responsiveness review will essentially determine if the documents are relevant to the case.
Note that this is outside of the scope of the taint team’s duties. Standard legal procedure sees the responsiveness review conducted by the prosecution.
As it stands the court has yet to rule on Scott’s motion.
Given the time sensitivity of the matter (Scott is expected to stand trial later this year), we’re expecting a decision will be made by the end of the week.
Given how hard Scott is fighting to suppress evidence from the DOJ, one can only imagine the treasure trove of goodies the seized documents contain.