On October 3, 2018, the government sought an order from the court that it be permitted to distribute to Keith Raniere, Allison Mack, Lauren Salzman, Clare Bronfman and Kathy Russell, full forensic copies of contents of electronic devices (e.g., computers, external hard drives, smartphones, and thumbdrives) seized from Nancy Salzman’s home — pursuant to search warrant on March 27, 2018.
Nancy’s attorneys objected to this on grounds that some of the seized material does not relate directly to charges that certain defendants are facing and, consequently, it would be a violation of Nancy’s rights, including primarily, I believe, privacy rights.
At the status conference on October 4th, Nancy Salzman’s attorneys informed the Court and the prosecution that they would propose a compromise that would accommodate the interests of both sides by October 8th.
That date came and went. On October 9th, Nancy’s attorneys asked for an extension.
One of her attorneys, Robert Soloway, wrote, “We continue to believe that an accord is possible, but we continue as well to work through the many relevant authorities in what is a complex and fast evolving area of law to achieve a workable outcome that will protect our client’s basic rights, and at the same time, will address the government’s legitimate interests and concerns.”
Soloway sought an extension until Thursday, October 11th, to reach an agreement with the government, or to inform the Court of their inability to reach an agreement. On October 10th, attorneys for Nancy and the government had a phone conference and “exchanged ideas” but did not reach an agreement.
The following day, another of Salzman’s lawyers, David Stern, wrote the court, asking for another extension – until October 19th.
Soloway, describing the phone conference, wrote, “We came away perceiving that there remains work to do to reach consensus, but also with the feeling that an agreement is not out of reach. Since both sides hope to avoid further litigation on this topic, we plan to engage in additional efforts to resolve through negotiation the matters at issue. Thus we ask for a further extension until Friday October 19 to come to an agreement; or, if we cannot, to jointly propose a short briefing schedule on the motion.”
It should be noted that it is required of the government to “fully execute the search warrant” by processing the seized devices to cull from the seized content that which is within the scope of the original search warrant. What this means is that all of Nancy’s personal material is not going to be released haphazardly – but only that which is specified as evidence named in the original search warrant.
That is not in dispute. What is in dispute is whether the material seized from Nancy that is within the scope of the search warrant – but that arguably does not relate to the charges against certain, various other defendants – should be released to those defendants. Arguably, it is irrelevant to their defense and, if released, invades Nancy’s privacy rights and may be prejudicial to her defense.
Whether this is a stall tactic, a plea negotiating tool, or a sincere, relevant issue on the part of the defense is hard to know without knowing what has been seized. Whether it is a sign of Nancy’s bifurcation from the other defendants is also unclear – but certainly possible.
How much additional burden this places on the prosecution is also unclear. It may a very painstaking task to examine all the seized data that conforms with the search warrant to evaluate which applies to which defendants.
It might be a mutual goal to extend this negotiation over what to release of Nancy’s material to whom while plea negotiations may be ongoing with Nancy.
Ostensibly, the prosecution is seeking to deliver all the material that conforms to the search warrant to all defendants – as if they had a joint and common defense. Nancy Salzman – who is the one whose data was seized – is not in agreement with it.
What this means, at this point, is anybody’s guess.
Here is document 163
Here is document 167
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Other filings include [#162) a brief summary of Magistrate Vera Scanlon’s hearing with attorneys for a timeline of discovery.
A request for James Burke to be excused as Lauren Salzman’s attorney[#160) and the judge’s granting the request (#161)