EFTA00178967

theories and plan his strategy without undue and needless 
interference. 
The work-product doctrine grants attorneys "a zone of privacy within which to 
prepare the client's case and plan strategy, without undue interference". In re San 
Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1014 (1S1 Cir. 1988). It 
applies in criminal as well as in civil cases. United States v. Nobles, 422 U.S. 225, 
236-38 (1975) ("Although the work-product doctrine most frequently is asserted as 
a bar to discovery in civil litigation, its role in assuring the proper functioning of 
the criminal justice system is even more vital"). 
Equally important, the Supreme Court made it clear in Nobles that the work-
product doctrine necessarily extends to work perforined by an investigator for a 
defendant's attorney: 
At its core, the work-product doctrine shelters the mental 
processes of the attorney, providing a privileged area 
within which he can analyze and prepare his client's case. 
But the doctrine is an intensely practical one, grounded in 
the realities of litigation in our adversary system. One of 
those realities is that attorneys often must rely on the 
assistance of investigators and other agents in the 
compilation of materials in preparation for trial. It is 
therefore necessary that the doctrine protect material 
prepared by agents for the attorney as well as those 
prepared by the attorney himself. 
422 U.S. at 238-39; see also See Cox v. Administrator U.S. Steel & Carnegie, 17 
F.3d 1386, 1422 (11i6 Cir.), modified on other grounds, 30 F.3d 1347 (11th Cir. 
18 
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• Fat 
• www.RoyBlack.com 
EFTA00179007

1994) (documents containing the mental impressions, conclusions, opinions, or 
other legal theories of an attorney or other representative of a party, concerning the 
litigation are, absolutely protected). 
Clearly, the subpoenas served in this case improperly infringe upon the 
work-product doctrine. The subpoenas seek production of retainer agreements, 
employment agreements, records of dates when services were performed and the 
hours worked, telephone logs or records of dates of communications with Mr. 
Epstein, appointment calendars and diaries during any period in which work was 
performed for Mr. Epstein or any communication was had with Mr. Epstein (or 
with a third party on Mr. Epstein's behalf), and records of fee arrangements and 
payments received for work performed on Mr. Epstein's behalf. See Black Aff. 
Exhibit "A". These records, which contain evidence of work performed on behalf 
of Mr. Epstein and his attorneys, must be protected from disclosure by the work-
prodiict doctrine. 
The government cannot invade the defense camp through the mechanism of 
a subpoena any more than it can by the surreptitious planting of an informant. See, 
e.g:, United States v. Henry, 447 U.S. 264, 266 (1980) (rule in Massiah v. United 
States, 377 US. 201 (1964), violated when law enforcement agent instructed 
jailhouse informant "to be alert" for any incriminating statements). Nor can it do 
19 
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201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: 
• Fax 
• www.Royillack.com 
EFTA00179008

so by keeping note of the documents selected by defense counsel for copying 
during the discovery process. United States v. Horn, 811 F.Supp.739 (D.N.H. 
1992).3 In Horn, government counsel instructed an agent to make two copies of 
every document selected by defense counsel to be copied from amongst the 
materials made available for inspection by the government during the discovery 
process, and then used the documents to prepare a government witness, even after 
defense counsel objected to the copying and while a motion to seal the materials 
was pending. Horn, 811 F.Supp. at 748-749. Concluding that "there is every 
indication that the lead prosecutor wanted to . . . obtain an insight into defense 
counsel's trial strategy, tactics, and thought processes without any concern for the 
rights of the defendants," Horn, 811 F.Supp. at 749, the court found that the 
government had violated defendants' work-product privilege, as well as their Fifth 
Amendment right to due process and their Sixth Amendment right to effective 
assistance of-counsel. 811 F.Supp. at 752; see also United States v. Horn, 29 F.3d 
754, 758 (14 Cir. 1994) (in government's appeal of one of the district court's 
remedies — ordering the government to pay defense legal fees to litigate the issue 
— the Court noted that the district court "ruled that this prosecutorial misconduct 
3 As the court in Horn noted, several courts have held that defense counsel's selection and compilation of 
documents in preparation for pretrial discovery fall within the highly-protected category of opinion work 
product. Shelton v. American Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986); Sporck v. Pell, 759 F.2d 
312, 315-16 (3d Cir. 1985); United States v. District Council of New York City and Vicinity of the United 
Bhd of Carpenters and Joiners of Am., 1992 WL 208284 at *12 (S.D.N.Y. Aug. 18, 1992); James Julia 
Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982). 
20 
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201S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: 
• Fax 
• www.RoyBlack.com 
EFTA00179009

not only violated the defendants' work-product privilege, but also abridged their 
Fifth Amendment right to due process and their Sixth Amendment right to 
effective assistance of counsel"); accord United States v. Marshank, 777 F.Supp. 
1507, 1519 (N.D. Cal. 1991) ("[w]hen the government interferes in a defendant's 
relationship with his attorney to the degree that counsel's assistance is rendered 
ineffective, the government's misconduct may violate the defendant's Fifth 
Amendment right to due process as well as his Sixth Amendment right to 
counsel"). 
The subpoenas-at .issue here are akin to the conduct condemned in Horn. 
Here, through the issuance of a subpoena, the government seeks to track the 
investigation being conducted at the direction and under the supervision of his 
attorneys in an effort to obtain insight into defense counsel's strategy, tactics, and 
thought processes, without any concern for the rights of Mr. Epstein. Permitting 
the government to do lo would violate the work-product privilege, Mr. Epstein's 
Fifth Amendment right to due process and his Sixth Amendment right to effective 
assistance of counsel .4
Indeed, many of the ways in which the subpoenas at issue trample on Mr. 
Epstein's rights are the very problems sought to be avoided by the internal 
State proceedings were commenced against Mr. Epstein on July 17, 2006. Black Aff. 15. It is well 
established that an individual's Sixth Amendment right to counsel attaches once prosecution is 
commenced. See, e.g., Texas v. Cobb, 532 U.S. 162, 167 (2001) (Sixth Amendment right to counsel 
attaches once prosecution is commenced). 
21 
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201 S. Biscayne Boulevard. Suite 1300 • Miami, Florida 33131. Phone: 
• Fax 
•www.RoyBladc.com 
EFTA00179010

Department of Justice guidelines for the issuance of subpoenas seeking 
information relating to legal representation. As demonstrated above, a subpoena to 
a defense investigator under these circumstances is the same as a subpoena to 
defense counsel. And USAM Guideline §9-11.255 requires prior Department of 
Justice approval for the issuance of a subpoena to a lawyer. That requirement 
evidently was not met. See Black Aff. 115. Second, "because of the potential 
effects upon an attorney-client relationship that may result from the issuance of a 
subpoena for information relating to the attorney's representation of a client", the 
DOJ imposes strict requirements on such issuance. Among the requirements that 
must be met is that "there must be reasonable grounds to believe that . . . the 
information sought is reasonably needed for the successful completion of the 
investigation or prosecution. The subpoena must not be used to obtain peripheral 
or speculative information". USAM §9-13.410. Though these guidelines create no 
enforceable rights, the prosectitors' failure here to comply with the internal 
••• 
requirements provide further evidence that these subpoenas are an inappropriate 
and unwarranted attempt to invade Mr. Epstein's defense camp. 
22 
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201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: 
• Fax: 
• www.Koyalack.com 
EFTA00179011

IV. 
THE SUBPOENAS ARE UNREASONABLE IN THAT IT SEEKS 
PRODUCTION OF THINGS UNCONNECTED TO ANY CRIME 
UNDER INVESTIGATION. 
This Court has authority to review a grand jury subpoena for reasonableness. 
See, e.g., United States v. R. Enterprises, Inc., 498 U.S. 292, 300-01 (1991). While 
the Supreme Court has held that grand jury subpoenas are presumed reasonable, 
that presumption may be overcome and a subpoena quashed where, as here, "there 
is no reasonable possibility that the category of materials the [gjovernment seeks 
will produce information relevant to the, general subject of the grand jury's 
investigation". R. Enterprises, Inc., 498 U.S. at 301. Normally, as the Supreme 
Court noted in R. Enterprises, Inc., recipients of a grand jury subpoena have little 
or no knowledge of the crime the grand jury is investigating and will therefore be 
unable to challenge the issuance of the subpoena on reasonableness grounds. Id. at 
301-02. Here, that is not the case. Mr. Epstein is aware not only of the subject 
matter, but the exact charges the grand jury is investigating. See Black Aff. 111. 
From that, it is clear that the evidence the government is attempting to obtain is 
wholly irrelevant to the grand jury's investigation. See Id. IV 2, 13. 
The requirement that a grand jury subpoena be reasonable and particularized 
is beyond dispute. Not only is that explicitly stated in the Fourth Amendment, but 
23 
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201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: 
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the requirement is included in Fed. R. Crim. P. Rule 17(c). 
See, e.g., R. 
Enterprises, 498 U.S. at 299 (Rule 17(c) requires that grand jury subpoenas be 
reasonable); United States v. Dionisio, 410 U.S. 1, 11 (1973) ("[t]he Fourth 
Amendment provides protection against a grand jury subpoena duces tecum too 
sweeping in its terms to be regarded as reasonable"); Oklahoma Press Pub. Co. v. 
Walling, 327 U.S. 186, 208-09 (1946) (holding ,that subpoenas although not 
searches and seizures under the Fourth Amendment, must be reasonable). 
Subpoenas, such as the ones here, which are overbroad and lack particularity such 
that they sweep within their scope a multitiate -of irrelevant documents is 
quintessentially unreasonable, whether assessed under the Fourth Amendment, the 
Due Process Clause, or Rule 17(c). 
Grand juries "are not licensed to engage in arbitrary fishing expeditions". R. 
Enterprises, Inc., 498 U.S. at 299. Yet that is precisely what enforcement of these 
subpoenas would permit — unbridled rununaging.by the government through an 
individual's "papers and effects" — namely, the contents of computers with no 
restriction or aim other than to "find something" of which the government has no 
evidence whatever exists. That renders these subpoenas the equivalent of a general 
search — the very evil that the Fourth Amendment was crafted to prohibit. 
24 
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201 S. Biscayne Boulevard. Suite 1300 • Miami, Florida 33131 • Phone: 
• Fax: 
• vnsw.RoyBlack.com 
EFTA00179013

In its Requests at ll's and 2, rather than making any effort to limit the 
subpoenas to matters relevant to its investigation (which we submit could not here 
be done), the government instead improperly seeks the entire contents of the 
computers, despite no evidence they contain any documents of any conceivable 
relevance to the government's investigation. See Black Aff. Exhibit "A". Such a 
subpoena is unreasonable and overbroad in violation of the Fourth Amendment, 
the Due Process Clause, and Rule 17(c). 
• Similarly, the materials listed in 13 are fundamentally irrelevant to the 
government's investigation of Mr. Epstein, which is focused on allegations of 
sexual activity with underage girls. Neither Mr. Epstein's communications with 
his retained investigator, Mr. Riley (or his firm), nor any services Riley and his 
firm may have performed on behalf of Mr. Epstein, has any possible bearing on the 
government's investigation. 
Moreover, as demonstrated in Point III, supra, 
enforcement of the subpoenas as to 13 poses a grave threat 16 Mr. Epstein's Sixth 
••• 
Amendment right to counsel and to his attorney-client and work-product 
. 
privileges. 
For instance, certain of the materials requested in 13, such as the Requests 
for "information related to the nature of the relationship between Mr. William 
Riley and/or Riley Kiraly and Mr. Jeffrey Epstein" (Black Aff. Exhibit "A"), on 
25 
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s8 Siinn 
201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: 
• Fat 
• www.RoyBlack.com 
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their face clearly implicate the work-product privilege; other Requests, such as 
those seeking billing records and records of services provided to Mr. Epstein, (id.), 
would require the redaction of work-product if the government were to be 
permitted access to them at all, given their irrelevance to the investigation. Since 
there is no issue as to Mr. Epstein's wealth or the source of the funds used to pay 
for the services, that irrelevance also extends to the requested documents showing 
the fees Mr. Epstein may have paid to Riley Kiraly for its services, as well. 
V. 
EVEN IF THE GOVERNMENT IS PERMITTED TO SEIZE THE 
COMPUTERS ON THE BASIS OF A GRAND JURY SUBPOENA, 
THE SUBPOENAS MUST BE QUASHED AS UNREASONABLE AND 
OPPRESSIVE, OVERBROAD AND UNPARTICULARIZED. 
Paragraphs 1 and 2 of the subpoenas suggest no limitation on the ability of 
the govemmel 
 
 
ters. Instead, the government 
purports to be 
session every bit of data stored 
therein, with 
'me frame. Quite clearly, the 
subpoenas are 
"go fishing" in the computers. 
In fact, the gc 
r a belief that any information 
contained within the computers would be relevant to its investigation. See Black 
Aff. $12. Thus, Request $'s 1 and 2 cannot, consistent with the requirements of the 
Fourth Amendment and the protections against unreasonable subpoenas afforded 
by Rule 17(c), be enforced. Instead, the intervention of the Court is required to 
26 
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201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: 
• Fax 
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EFTA00179015

prevent the government from using a grand jury subpoena to conduct an unfettered 
general search of the contents of the computers. 
See United States v. 
Comprehensive Drug Testing, Inc., 473 F.3d 915, 938-39 (91" Cir. 2006) ("[i]t is 
not reasonable to allow the government to seize an indeterminately bounded array 
of computer data only later to set its own standards for review and retention 
thereof"). 
Further, where that which the government seeks is not the computers 
themselves but rather the content of the computers, it is that content which must be 
particularly described in the subpoena to comply with the reasonableness 
requirement. See In re Grand Jury Subpoena Duces Tecum Dated November 15, 
1993, 846 F.2d 11, 13 (S.D.N.Y. 1994). The subpoenas at issue fail utterly to do 
so. Rather,- they are overbroad and unparticularized, and as such, cannot pass 
muster under either the Fourth Amendment or Rule 17(c). 
The "reasonableness" requirement is understood to contemplate' a 
requirement that the subpoena identify with particularity the documents to be 
produced. Fisher, 425 U.S. at 401 (Fourth Amendment protects against subpoenas 
which suffer from "too much indefiniteness or breadth in the things required to be 
particularly described"); Oklahoma Press, 327 U.S. at 209 ("the requirement is 
reasonableness, including particularity in describing the place to be searched and 
77 
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201S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: M
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the persons or things to be seized"). Here, though the subpoenas describe with 
particularity "the computers", the subpoenas are wholly silent as to the real target — 
the contents of the computers. As courts have recognized in the context of search 
warrants authorizing searches of computers, the particularity requirement cannot 
be deemed satisfied absent specification of the documents or other materials which 
are the object of the search/subpoena. 
Courts are increasingly recognizing that careful attention to the Fourth 
Amendment's particularity requirement and overbreadth prohibition are critical in 
the context of computer searches. See, e.g., United States v. Adjani, 452 F.3d 
1140, 1149 (9th Cir. 2006) ("[wje understand the heightened specificity concerns in 
the computer context, given the vast amounts of data they can store'); In re Search 
of 3817 W. West End, 321 F.Supp.2d at 958-59 (marshalling the reasons why "a 
request for the search and seizure of computers merits a close look at the 
particularity requirement"); see also U.S. Dep't of Justice, Searching and Seizing 
Computers and Obtaining Electronic Evidence in Criminal Investigations (July 
2002) ("DOJ Computer Search Manual") ("[a]gents must take special care when 
describing the computer files or hardware to be seized"). 
Courts have held that "when the government seeks to seize the information 
stored on a computer, as opposed to the computer itself, that underlying 
28 
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201 S. Biscayne Boulevard. Suite 1300 • Miami, Florida 33131 • Phone: 
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information must be identified with particularity and its seizure independently 
supported by probable cause". United States v. Vilar, 2007 WL 1075041 at *36; 
United States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005) ("warrants for 
computer searches must affirmatively limit the search to evidence of specific 
federal crimes or specific types of material"); United States v. Barbuto, 2001 WL 
670930 at *5 (D.Utah April 12, 2001) (agents "should have known that the warrant 
needed to specify what types of files were. sought in the searching of the two 
computers so that personal files would not be searched); see also DOJ Computer 
Search Manual at 42 (instructing that "[i]f the probable cause relates only to the 
information . . . the' warrant should describe the information, rather than the 
physical storage devices which happen to contain it"). Thus, "[t]o withstand an 
overbreadth challenge, the search warrant itself, or materials incorporated by 
reference must have specified -the purpose for which the computers were seized 
and delineated the limits of their subsequent search". United States v. Hunter, 13 
F.Supp.2d 574, 584 (D.Vt. 1998) 
Given these principles, the Requests contained in ¶'s 1 and 2 of the 
subpoenas are clearly unreasonable, since they purport to allow the government to 
search the entire contents of the computers with no requirement of showing 
reasonableness or relevance to the matters under investigation. 
That is not 
29 
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201 S. Biscayne Boulevard. Suite 1300 • Miami, Florida 33B1. Phone: 
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EFTA00179018

permissible. See, e.g., Riccardi, 405 F.3d at 862-63 (warrant authorizing seizure of 
computer, all electronic and magnetic media stored therein, and a host of external 
storage devices without limitation unconstitutional as authorizing general search); 
United States v. Joe, 2007 WL 108465 at *7 (N.D.Cal. January 10, 2007) (holding 
"computers and related or similar devices, and information on hard or floppy 
drives, which may contain any documents and records . . . ." overbroad and 
ordering suppression); United States v. Slaey, 433 F.Supp.2d 499, 500 (E.D. Pa. 
2006) ("[a]ny records, documents, materials and files maintained on a compute?' 
overbroad because it authorized agents to seize everything, even if unrelated to the 
offense under investigation and even if wholly personal); West End, 321 F.Supp.2d 
at 962 (refusing to approve unguided search, which the government indicated 
could require review of all the seized data, because "what the government seeks is 
a license to roam through everything_ in the computer without limitation and 
without standards"); United States v. Clough, 246 F.Supp.2d 84, 87-88 (D. Me. 
2003) (warrant to search computers which contained no limitations on the search 
and no references to statutes, crimes, or _ illegality was unconstitutionally 
overbroad); Hunter, 13 F.Supp.2d at 584 (warrant authorizing seizure of all 
computers, all computer storage devices, and all computer software systems 
unconstitutionally overbroad). 
30 
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201 S. Biscayne Boulevard, Suite 1300 • Miami, Florida 33131. Phone: 
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Where, as here, computers or their contents or external storage media and 
devices are sought to be hauled away by the government for later off-site search, 
courts have an obligation to ensure that the subsequent search remains within the 
bounds of the Fourth Amendment reasonableness requirement. "[R]esponsible 
officials, including judicial officers, must take care to assure that [searches] are 
conducted in a manner that minimizes unwarranted intrusions upon privacy". West 
End, 321 F.Supp.2d at 960, quoting Andresen v. Maryland, 427 U.S. 463, 482 n.I I 
(1976). 
Most recently, in Warshak v. United States, 2007 WL 1730094 (6th Cir. June 
18, 2007), the Sixth Circuit, in the context of upholding a Fourth Amendment 
challenge to the provisions of the Stored Communications Act which authorize the 
government to obtain an individual's emails from his Internet Service Provider 
pursuant to court order or subpoena on a showing of less than probable cause and 
without advance notice to the subscriber, expressly addressed the particularity 
requirement where subpoenas as well as searches of computers are concerned: 
Because our opinion speaks to the appropriate remedy in 
this case, we note one other important principle that 
applies both to e-mail seizures pursuant to a warrant 
supported by probable cause, and to compelled disclosure 
through a process akin to that involved with subpoenas. 
In neither instance is the government necessarily entitled 
to every e-mail stored with the ISP, many of which are 
likely to be entirely unrelated to its specific investigation 
. . . where a subpoena . . . compels the disclosure of e-
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201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: 
• Fax: 
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EFTA00179020

mails, the demand must be reasonable in scope and 
relevance. 
Id. at 15 n.8 (citations omitted). 
Similarly, the court in In re Grand Jury Subpoena Duces Tecum Dated 
November 15, 1993, supra, 846 F.24 11, was called upon to review a grand jury 
subpoena that sought all computer hard drives of computers supplied to a number 
of officers and employees or a corporate entity, as well as all computer-accessible 
data, including all floppy disks, created by or on behalf of the specified officers or 
employees. 
The Court held that, because there were ways in which the 
government could have narrowed the subpoena to relevant documents, such as 
documents containing certain key words, the subpoena at issue unnecessarily 
demanded documents irrelevant to the grand jury inquiry and was, therefore, 
unreasonably broad under Rule 17. Likewise, in In re Amato, 2005 WL 1429743 
at *11-*12 (D. Me. June 17, 2005), the Court, relying on a number of cases dealing 
with searches of computers pursuant to warrants, granted a motion to quash with 
respect to the paragraph of the subpoena requesting the production of all computers 
and computer related equipment: "Inasmuch as Category 10 of the Subpoenas in 
essence requests the turnover of all computers (and related objects) of both 
corporations with no express safeguard• against a subsequent rummaging through, 
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201 S. Biscayne Boulevard. Suite 1300. Miami. Florida 33131 • Phone: 
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EFTA00179021

and seizure of, irrelevant as well as relevant data, it cannot withstand Fourth 
Amendment reasonableness scrutiny". 
Courts are now recognizing that the seizure of a computer for later off-site 
search of its contents requires fresh thinking, and cannot simply be permitted by 
reference to the law that permits seizure of a file cabinet or other container of 
physical documents. See, e.g., United States v. Hill, 459 F.3d 966, 968 (9th Cir. 
2006) ("computer-related. searches can raise difficult Fourth Amendment issues 
different from those encountered when searching paper files"); United States v. 
Walser, 275 F.3d 981, 986 (10th Cir. 2001) ("[b]ecause computers can hold so 
much information touching on many different areas of a person's life, there is a 
greater potential for the "intermingling" of documents and a consequent invasion 
of privacy when police execute a search for evidence on a computer"); United 
States v. Campos, 221 F.3d 1143, 1148 (10th Cir. 2000) (storage capacity of 
computers may require law enforcement officers to take a special approach 
because of intermingled documents); West End, 321 F.Supp.2d at 959 ("[t]he 
capacity of the computer to store these large quantities of information increases the 
risk that many of the intermingled documents will have nothing to do with the 
alleged criminal activity that creates probable cause for the seizure"); Hunter, 13 
F.Supp.2d at 583 ("[c]omputer searches present the same problem as document 
33 
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lackcom 
EFTA00179022

searches — the intermingling of relevant and irrelevant material — but to a 
heightened degree"). 
Recently, the Ninth Circuit expressly applied the principles of in United 
States v. Tamura, 694 F.2d 591 (9th Cir. 1982), a leading case on the Fourth 
Amendment issues presented by intermingled documents in the traditional paper 
document search context? in the computer context, noting that because "the 
computer era adds new complexity, to the test of reasonableness under the Fourth 
Amendment", it viewed Tamura "as especially important in the computer context". 
United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915, 939 (9t1 Cir. 
2006). The review procedure outlined in Tantura was, the Court concluded, 
"necessary to ensure that the seizure of intermingled computer records remains 
reasonable". Id. at 938. Therefore, 
. . .in the case of a lawful and reasonable seizure of 
intermingled computer records for off-site review . . .our 
precedents and the general reasonableness mandate of the 
Fourth Amendment require the supervision of a magistrate. It 
is not reasonable to allow the government to seize an 
5 In Tamura, the Court suggested that where documents are so intermingled that they cannot be feasibly 
sorted on site, agents "generally can avoid violating Fourth Amendment rights by sealing and holding the 
documents pending approval by a magistrate of a further search, in accordance with the procedures set 
forth in the American Law Institute's Model Code of Pre-Arraignment Procedure". 694 F.2d at 595-96. 
In fact, the Court continued, if the officers are aware prior to the search that there will be a need to 
transport documents to another location for search, they should apply to the magistrate for specific 
approval of large-scale removal of material, which should be granted by the magistrate "only where on-
site sorting is infeasible and no other practical alternative exists". Id. at 596. The "essential safeguard" 
required, the Court stated, is "that wholesale removal must be monitored by the judgment of a neutral, 
detached magistrate". Id (emphasis added) 
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indeterminately bounded array of computer data only later to 
set its own standards for review and retention thereof 
Id. (emphasis added). 
There is no question that Mr. Epstein has an important expectation of 
privacy in the contents of the subpoenaed materials. Amongst other safeguards, 
the Fourth Amendment protects Mr. Epstein's privacy absent probable cause that 
any particularized file or document contains evidence of a federal crime. The 
issuance of a subpoena does not eliminate the necessity of probable.cause when the 
objects of the compulsion are documents in which a citizen has an expectation of 
••••, 
privacy. In cases where the objects of a subpoena are business records, such as 
bank records in which a citizen has no expectation of privacy (see, e.g., United 
States v. Miller, 425 U.S. 435 (1976)), or telephone toll records (Smith v. 
Maryland, 442 U.S. 735, 740 n. 5 (1979)), a subpoena is sufficient. In cases, 
however, where an expectation of privacy exists, a subpoena lacking probable 
cause does not accord with Fourth Amendment rights. See, generally, Katz v. 
United States, 389 U.S. 347 (1967). 
For these reasons, to the extent the subpoenas purport to permit the grand 
jury not only to seize, but to search the computers, they are unreasonable. Before 
the government may be permitted to search the computers, it must particularize the 
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201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33B1 • Phone: 
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items to be seized after a demonstration of probable cause to believe that the 
computers contain such items. 
VI. 
THE COURT MUST ENSURE THAT THE GOVERNMENT IS NOT 
PERMITTED ACCESS TO MATERIALS PROTECTED BY THE 
ATTORNEY-CLIENT OR WORK-PRODUCT PRIVILEGES. 
Though we believe the subpoenas should be quashed in their entirety, in the 
event the Court determines to enforce the subpoenas, the Court should be 
particularly careful to assure that safeguards are put in place to prevent the 
disclosure of attorney-client communications and attorney work-product. The 
subpoenaed -materials contain information and documents protected by the 
attorney-client 
and 
work-product 
privileges, 
including 
attorney-client 
communications between Mr. Epstein and attorneys regarding various legal 
matters with respect to which he sought and obtained the assistance of counsel. 
Black Aft 113. Prior to any production of the subpoenaed computers, counsel 
must be permitted to review an image of their contents for the purpose of 
identifying all privileged materials contained in the computers, segregating the 
privileged materials from the remaining content of the computers to ensure that 
privileged materials do not fall into the hands of government investigators. 
The Sixth Circuit recently adopted a similar procedure in the context of 
traditional subpoenaed documents. The Court in In re Grand Jury Subpoena, 454 
F.3d 511 (6th Cir. 2006), was called upon to "determine who has the right to 
36 
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201 S. Biscayne Boulevard, Suite 1300 • Miami. Florida 33131 • Phone: 
• Fax 
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conduct a review for privilege of documents subject to a grand jury subpoena 
directed to a third party who possesses the documents but has not yet produced 
them to the government: the targets of the investigation whose rights of privilege 
are potentially implicated, or the federal government, operating a `taint team' 
behind a `Chinese wall' or protective screen". Id. at 512. The district court had 
rejected the proposal by the targets of the investigation that their counsel review 
the responsive documents and prepare a privilege log, with disputes to be resolved 
by the court in favor of first-instance review by a government "taint team". ' The 
Court, noting that "t7and juries are not empowered to override private rights in all 
cases", and, in particular, "may not use their investigatory authority to violate a 
valid privilege" (id at 519), reversed the district court, concluding that the risks to 
the attorney-client privilege inherent in the government's review of privileged 
materials were such that the targets should be permitted the opportunity to conduct 
their own privilege review prior to production. See id. at 521-23. Interestingly, in 
that case, the government conceded that "the leaking of privileged materials to 
investigators would raise the specter of Kastigar-like evidentiary hearings". Id. at 
517. This case presents the same specter should Mr. Epstein be indicted. 
The recognized importance of the attorney-client privilege is such that this 
Court should permit Mr. Epstein's counsel to review the contents of the computers 
to identify all privileged information, segregate it from the remaining contents of 
37 
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201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: 
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