The San Juan Daily Star
Judge suspends ‘filter team’ review of disputed electronic data in Vázquez Garced case
By The Star Staff
Federal Judge Raúl Arias Marxuach granted on Tuesday a request from Julio Herrera Velutini and Mark Rossini, who were accused along with former Gov. Wanda Vázquez Garced in a corruption scheme, to stop federal prosecutors from using a “filter team” to review attorney-client and work product privileged electronic data obtained through search warrants.
“The filter team shall discontinue review of the electronically stored information at issue here until the Court rules on this motion,” the ruling said.
The judge held in abeyance a motion for return of property requested by Herrera Velutini and Rossini but ordered the government to file a motion by Nov. 29 stating the filter team protocol currently in place and whether any of the filter team’s members are employed by the U.S. Attorney’s Office for the District of Puerto Rico.
The lawyers for Herrera Velutini and Rossini had argued that the government only within the last several weeks advised them that it had been in possession of their privileged data (attorney-client and work product) for well over two years and only now within the last month commenced a “filter team” review of the electronic data.
“The volume of this data could reasonably dwarf the size of the discovery produced to date, as it contains seized data from approximately 32 electronic accounts and devices. It is not only surprising but profoundly concerning that this electronic data was not subjected to any filter team review prior to the indictment being returned in this matter,” the lawyers said. “Given the volume and nature of the data, it is reasonably certain that it contains Brady [materially exculpatory evidence] which should have been evaluated and considered as to whether charges were even warranted in the first place.”
The materials were seized as a result of search warrants directed to Herrera Velutini’s and Rossini’s email accounts and iCloud backup of their phones. In the case of the email accounts and iCloud backups, the warrants were issued to third party electronic communications providers and thus, Herrera Velutini and Rossini did not receive any information.
“Herrera Velutini and Rossini reserve the right to challenge the search warrants for overbreadth or on other grounds,” the lawyers said. “The government’s untimely, lengthy, continuing, and arguably indiscriminate review of seized electronic materials, including those containing privileged information, is likely unreasonable under the circumstances.”
The government, they said, was well aware and on notice from the very outset of its investigation that it would encounter a significant volume of privileged materials, since the defendants in this case are Vázquez Garced, an attorney and former Puerto Rico governor, Herrera Velutini, an officer with multiple corporations, including banking entities in Puerto Rico and Europe, and Rossini, a former FBI agent who later worked as a consultant and who, according to many witness statements, provided in the discovery employed various law firms for legal advice and guidance.
“The very subject matter of the criminal investigation, which is highlighted over and over again in the indictment, involved regulatory audits of a financial institution in which attorneys on behalf of Mr. Herrera Velutini and his corporations were engaged in regular and ongoing, sometimes daily, discussions with a government regulator – a regulator which in fact worked at the direction of government investigators while it was directly interacting with Mr. Herrera Velutini’s legal counsel over the terms of the ongoing regulatory audits,” the lawyers said.
In spite of this, the government chose to indiscriminately seize the defendants’ email accounts and phones without judicially reviewed and authorized taint procedures incorporated into the warrants, they said.
“Only after Mr. Rossini’s and Mr. Herrera Velutini’s indictments and after the production of a portion of the discovery, the government suddenly revealed that it is in possession of privileged material,” the lawyers said.