05242018 - News Article - UPDATE: After open testimony about review process, judge shuts doors for afternoon during hearing on James Snyder email claim

UPDATE: After open testimony about review process, judge shuts doors for afternoon during hearing on James Snyder email claim
NWI Times
May 24, 2018
http://www.nwitimes.com/news/local/crime-and-courts/update-after-open-testimony-about-review-process-judge-shuts-doors/article_98a16192-9b0b-5875-ada9-3b3b2750985b.html

HAMMOND — Arguments continued Thursday over whether or not indicted Portage Mayor James Snyder's Sixth Amendment right to a fair trial have been violated.

Half of Thursday's session was in open court as two witnesses testified about the email review process and about what protections are in place to prevent prosecutors from viewing documents deemed attorney/client privilege. The afternoon session was held in closed court.

There was no ruling at the close of Thursday's session in U.S. District Court before Judge Joseph Van Bokkelen.

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. Snyder asked that the three-count indictment against him be dismissed or that the current prosecution team be disqualified.

Snyder was indicted in November 2016 on charges of felony bribery, extortion and tax dodging counts. He has pleaded not guilty.

Under questioning by Assistant U.S. District Attorney Jill Koster on Thursday morning, FBI supervisory special agent Eric Field testified about the review process. Field told the court the investigation against Snyder was opened in September 2013, and in September 2015 search warrants were issued for both Snyder's city and personal email accounts along with emails from Snyder's administrative assistant and the city's assistant street superintendent.

Field explained that initially the seized emails went through a keyword search to filter out any that might have privileged information. From there, a two-person FBI team reviewed about 900 potentially privileged emails. Those they felt were possibly privileged were forwarded to Assistant U.S. District Attorney Maria Lerner for the third step of the review process.

Field said at no time did he see any of the documents in questions prior to them being deemed not privileged. In addition, he said, neither the other two FBI agents or Lerner had anything to do with the Snyder investigation.

Field said he told the two agents to be "overly cautious" in the review process.

Snyder defense attorney Jayna M. Cacioppo, of Taft Stettinius & Hollister of Indianapolis, questioned Field under cross examination as to what keywords were used in the text search, saying they did not include the words "attorney," "Kirsch" or "legal." She also questioned him as to why he didn't communicate with Kirsch before conducting the review to determine what keywords might be used or if Kirsch might have an alternative email address that was used in communication with Snyder.

Cacioppo also questioned Field about how he and others knew what might be considered privileged documents, citing none of the FBI agents involved were attorneys.

Field said he had been given verbal directions on what to look for regarding privileged emails and had passed on that information to the other two agents.

Field also said the process had looked at emails and had not heard of an issue regarding work product until a hearing on the same issue May 10.

Jesse Rodgers, a litigation technology specialist for the U.S. district attorney’s office, testified on the protection involved to prevent the prosecution team from accessing potentially privileged emails.

He explained the use of encryption and the firewall used to prevent the access of the prosecution team of any potentially privileged information.

Cacioppo also questioned Rodgers how one email could have ended up in both the privileged and non-privileged folders during the review process and if that was an indication the firewall failed during the review process.

Rodgers said it is possible a duplicate email could have gotten through the system, but was not an indication of a failure of the firewall.

Following a lunch break, Van Bokkelen closed the courtroom as he did two weeks ago to take testimony on individual emails. On May 10, nearly six hours of testimony was taken behind closed doors on the issue.

According to court documents also filed Thursday, the next hearing in the case will be held at 10:30 a.m. Wednesday. However the document does not say if the hearing pertains to this or another matter in the case as since the May 10 hearing, several documents have been filed by both sides, but sealed as to their content. The filing also set a June 8 deadline or Snyder's team to file a brief on an unnamed matter with the government to respond by June 22.