HAMMOND — Indicted Portage Mayor James Snyder's defense team contends that even better email review processes than used in his case have been rejected by courts.
That includes, according to a 37-page brief filed in U.S. District Court late Friday, a procedure proposed to review and vet privileged communications between President Donald Trump's personal attorney Michael Cohen and his clients.
"Compared with the haphazard methods employed by the government in the Snyder case, the careful approach proposed by prosecutors involved in the Cohen search is notable and telling," reads the brief, which was filed in response to public testimony held May 24. "Whatever else one may think about the Michael Cohen raid, at a minimum the parties demonstrated a seriousness of purpose in protecting privileged materials, standing in stark contrast to the slapdash process used for Snyder."
The district court in New York rejected that email review process, notes the document, saying a retired federal judge was appointed as a special master.
The latest brief is in response to the testimony of FBI supervisory special agent Eric Field and Jesse Rodgers, a litigation technology specialist for the U.S. district attorney’s office held in open court May 24. At that hearing, the two explained the "taint team" or email review process used to determine which of Snyder's emails with his former attorney were privileged.
Snyder contends that prosecutors read emails seized by a search warrant in 2015 between himself and his former attorney, now U.S. District Attorney Thomas Kirsch II. He claims those emails contained attorney/client privilege information and work product and that his constitutional rights have been violated. Snyder asked that the three-count public corruption indictment against him be dismissed or that the current prosecution team be disqualified.
The issue has been argued for some four months through briefs filed in court as well as open and closed court hearings.
The filing by Snyder's present attorney, Jackie M. Bennett of Indianapolis, contends the entire "taint team" process was tilted in favor of federal prosecutors.
Among several issues raised in the brief, the filing questions why Field would have eliminated certain "protective" keywords from an initial search of the emails.
"The record leaves open Field's motivation behind erasing these more protective terms when executing a privilege search of Snyder's personal email account, but nothing suggests it was an accident," the brief reads.
It also criticizes using two FBI agents during the second phase of the process who were not attorneys nor had participating in such a process previously and only being given a verbal explanation of what attorney/client privilege meant.
"There was no procedure in place to guard against these non-lawyers mistakenly marking a document 'non-privileged' when it was actually 'privileged'," the brief continues.
The brief also contends the utilized review process provided "absolutely no safeguard or protection against 'Type II' errors," which it defines as something "actually privileged but was mistakenly marked as non-privileged" and "would severely impact Snyder."
Prosecutors have until June 22 to respond to the latest defense brief.
Snyder was indicted in November 2016 on charges of felony bribery, extortion and tax dodging counts. He has pleaded not guilty. His trial is set for Oct. 9, however, deadlines for additional briefs to be filed by both the defense and prosecution teams extend until Aug. 13. Many of those briefs are expected to be sealed from the public as they will address testimony given in closed court.