RE: US v. Maxwell - [conferral re photo and other discovery deficiencies]
I'm writing to follow-up on our discussion last Thursday regarding the photo evidence and to address a number of other critical problems with the discovery provided to date.
Unfortunately, both in the production to defense counsel and on the hard-drive supplied by your office to our client at MDC, there are thousands, if not hundreds of thousands, of photos that are still unreadable. We have spent countless hours, and a chunk of our client's resources, trying to rectify a number of these problems ourselves, to no avail. Our ability, and our client's ability, to review all of the discovery in this case is absolutely critical and is constitutionally guaranteed. Unless you can quickly propose a solution, we believe we need to raise this with the Court.
• We do not have a functional copy the Excel spreadsheet located at SDNY_GM_00467566. I have confirmed that the original spreadsheet provided to us is corrupt and the vendor and e-discovery provider cannot open it.
• The other two Excel spreadsheets from the production (and presumably the one we cannot open) are insufficiently detailed to tell us which photo goes with which meta-data.
o The index contains multiple instances of the same "file name" with different hash values.
o The index does not match any particular file with a Bates stamp.
o The index does not indicate which files were withheld as "highly confidential."
• Many of the photo files that were provided in discovery (e.g., SDNY011) do not have a discernible reader. I cannot open them. Ms. Maxwell does not have a reader on her MDC laptop that can read them. If the government is able to view them, then we should be provided the means to view them as well.
• A number of photo files appear to be missing from the MDC laptop and are not highly confidential, based on my review of documents last week. Because we do not have a list of what was/was not produced, however, we cannot confirm.
• As you know, the 2 x "highly confidential hard-drives" in NY did not work until Thursday once an appropriate reader was added to the laptop. I did not have enough time to view all of the files. I do not have the reader that you ultimately added to that laptop.
• The discs that I attempted to view in NY (from various binders) would not load on the government laptop. I was unable to match up disks with potential files on the hard-drives. Because I did not have a functioning Excel spreadsheet, I also was not able to match any highly confidential photos from the hard-drives with the associated metadata.
I am requesting that you produce to defense counsel replicas of the two hard-drives that you made available for review last week, subject to all of the strictures of the protective order.
I recognize that you have designated as "highly confidential" photos that you contend contain "nude, partially-nude, or otherwise sexualized images, videos, or other depictions of individuals." Among the photos on the hard-drive that I was able to view, there were a lot of "nude" and "partially-nude" photos of adults, but I did not see anything that would qualify as child pornography under the statute. Some of the photos only showed a woman's back or shoulder. If you have reason to believe that there is child pornography contained on the two hard-drives, then certainly defense counsel is not asking to possess that material; you can designate it as such and we can view it at an acceptable location as occurs in any CP case.
Otherwise, I think the burden of reviewing adult nudity only in the government's office or courthouse imposes an extraordinary cost on our client and prevents us from analyzing the metadata, having our experts review the file structures, keeps us from preparing photos for use at trial, and generally impedes our defense.
In a similar vein, can you let me know when you are willing to disclose any photos that you intend to introduce at trial? As to any of those, I will need sufficient information and time to analyze them for foundation and admissibility purposes with an appropriate expert.
Finally, I am attaching an incomplete list of the documents that our client still cannot read at MDC. It is a small sample, as she has had to spend hours of her "review" time communicating to our staff which files she cannot read. Also, the manner in which the discovery was provided to her (load file format) precludes her from comparing the "image" and the "native" files (they do not, for example, have clearly labeled bates-stamps).
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Following up on the below, as I believe these are the outstanding issues from this email chain.
When do you expect to have clarification from the FBI regarding the discrepancy in highly confidential material count?
Same for the de-designated HC materials?
Your answer regarding Bates-stamped but content-less files only addressed those that you took off of Epstein devices. I asked about a file that your office created — an Excel spreadsheet — that did not have content yet you Bates-stamped and produced it. Are there others?
When do you expect to have answers to the list of documents that our client is unable to view at the MDC? It is a few days shy of a month since I forwarded that list to you and I am hoping that you will have answers in the next few days.
I will wait for answer to 1 and 2 above before I can adequately address your position on the HC materials. It may be that we need to go back to the Court to address your definition of highly confidential which is unlike I have seen on even child pornography cases.
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Counsel,
We write to meet and confer about Judge Nathan's order (Dkt. No. 322) and some other issues. Please let us know if you are free to speak by phone tomorrow before 3 pm or Tuesday after 2:30 pm.
Also, please let us know some dates and times that you would like to review the hard drives and boots in Colorado.
Best
From:
Sent: Wednesday August 4 2021 5:25 PM.
Subject: RE: US v. Maxwell - [conferral re photo and other discovery deficiencies]
Laura,
Thank you for your email and for your patience as I track down answers for you.
By the end of this week, I expect to have a production ready for you, which will contain two categories of images responsive to the discussions we have been having:
• First, the production will include several thousand images that the FBI has de-designated from Highly Confidential down to Confidential. These will be produced in a format that should provide you with all available metadata together with each image. This production is the culmination of the de-designation review process that the FBI has completed over the past few months.
• Second, the production will include all of the approximately 40,000 images previously produced to you, which were extracted from CDs seized from Epstein's New York residence. This production will be in a new format that should provide you with all available metadata together with each image.
For this production, we will need two 500GB hard drives (one for counsel's copy and one for Ms. Maxwell's copy) on which to load the materials.
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Laura,
I’m following up on my email as we intend to send the boots back this week.
Best,
From: (USANYS)
Sent: Monday, September 27, 2021 4:37 PM
Subject: RE: US v. Maxwell - [conferral re photo and other discovery deficiencies]
Laura,
We understand you would like more time with the photos and we can leave the drives there for your review. We would like to send the boots back to New York by the end of this week as it takes some time to transport. I can reach out to the FBI agent in Colorado to help coordinate a time for you to review the boots this week if you would like to provide some times.
Best,
From: Laura Menninge
Sent: Monday, September 27, 2021 3:27 PM
Subject: [EXTERNAL] RE: US v. Maxwell - [conferral re photo and other discovery deficiencies]
Hi –
I appreciate you reaching out before you send them back. I have just concluded a multi-week trial which hampered my ability to spend as much time with the photos and boots as I need. Can you please hold off sending them back for about 2 weeks? I will reach out again to the agent here about setting up a time later this week to continue the viewing.
Thanks,
Laura
Laura A. Menninger | Partner
Haddon, Morgan & Foreman, P.C.
150 E. 10th Avenue | Denver, CO 80203
Sent: Monday, September 27, 2021 9:20 AM
To: Laura Menninger
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