Good Morning Sir, Please find attached the government's response to the defense motion to quash a subpoena for emails from the accused's google.com account. Subsequent to the filing of the defense motion and government response in this case, the parties (myself for the government and Mr. Faraj for the defense) held an RCM 802 conference with LtCol Rubin regarding this issue. The outcome of that conference, and several subsequent communications between counsel, is that the government agreed to 1) limit the scope of the subpoena to certain time periods, 2) request that communications to and from certain email addresses (provided by the defense) be excluded from Google's response in order to avoid discovering privileged information, and 3) provide the results disc to the military judge for an in camera review prior to any viewing of the disc by the trial counsel. We just received the results disc from Google yesterday. Neither I nor any other trial counsel or subordinate personnel have looked at the contents of the disc. I can provide you with that disc in order for you (or a neutral individual designated by the court) to review the contents in camera to ensure that there is no privileged material on the disc, or if necessary make a copy with any privileged material deleted. Pursuant to Rule 7 of the Western Judicial Circuit Rules of Court (WESTERNJUDCIRINST 5813.1), the government opposes any ex parte hearing in this matter. Very Respectfully, Captain Evan S. Day Trial Counsel, Military Justice Office Joint Law Center 3rd MAW/ MCAS Miramar Comm: 858-577-1887 DSN: 312-267-1887 Fax: 858-577-1734 Classification: UNCLASSIFIED//LIMDIS This e-mail is FOR OFFICIAL USE ONLY and is exempt from mandatory disclosure under FOIA. DoD 5400.7R, "DoD Freedom of Information Act Program", DoD Directive 5230.9, "Clearance of DoD Information for Public Release", and DoD Instruction 5230.29, and "Security and Policy Review of DoD Information for Public Release". ATTORNEY-CLIENT PRIVILEGED COMMUNICATION OR ATTORNEY WORK PRODUCT. The information contained in this message is privileged. It is intended only to be read by the individual or entity addressed or their designee. If the reader of this message is not the intended recipient, you are on notice that any distribution of this message, in any form, is prohibited. If you have received this message in error, please immediately notify the sender and delete or destroy any copy of this message. -----Original Message----- From: Day Capt Evan S Sent: Tuesday, July 13, 2010 16:47 To: Rubin LtCol Peter R Cc: 'farajh@gmail.com'; Hatch MAJ Douglas C; Sullivan LtCol Sean; Hur Capt Christian P Subject: RE: US v. Wacker: Defense Motion to quash subpoena Good Afternoon Sir, Please find attached the government's response to the subject motion, with enclosures. The government will be submitting a docketing request shortly to schedule an Article 39(a) session next week to address this issue. Resolution of this email cannot be delayed until September, for the reasons I described in my previous email (below). Very Respectfully, Captain Evan S. Day Trial Counsel, Military Justice Office Joint Law Center 3rd MAW/ MCAS Miramar Comm: 858-577-1887 DSN: 312-267-1887 Fax: 858-577-1734 Classification: UNCLASSIFIED//LIMDIS This e-mail is FOR OFFICIAL USE ONLY and is exempt from mandatory disclosure under FOIA. DoD 5400.7R, "DoD Freedom of Information Act Program", DoD Directive 5230.9, "Clearance of DoD Information for Public Release", and DoD Instruction 5230.29, and "Security and Policy Review of DoD Information for Public Release". ATTORNEY-CLIENT PRIVILEGED COMMUNICATION OR ATTORNEY WORK PRODUCT. The information contained in this message is privileged. It is intended only to be read by the individual or entity addressed or their designee. If the reader of this message is not the intended recipient, you are on notice that any distribution of this message, in any form, is prohibited. If you have received this message in error, please immediately notify the sender and delete or destroy any copy of this message. -----Original Message----- From: Day Capt Evan S Sent: Thursday, July 08, 2010 16:25 To: Sanzi LtCol Thomas J Cc: 'farajh@gmail.com'; Hatch MAJ Douglas C; Sullivan LtCol Sean Subject: FW: US v. Wacker: Defense Motion to quash subpoena Good Afternoon Sir, Based on the discussion below, we do not have an agreement between counsel regarding the date for the motion session regarding the proposed subpoena. Defense counsel has requested that the motion be considered at the currently scheduled motions session on 29 September 2010, while the government requests that the 39(a) session for this motion be ordered during the week of 19-23 July. The government's response to the subject motion will include a request for an in camera review pursuant to RCM 703(f)(4)(C), in order to address the privilege issues raised by the defense. If the defense motion is denied, it will take a substantial amount of time to serve process on Google, for them to comply, for the military judge to conduct the in camera review that we will be requesting in our response, and for the parties to review the discovery that is provided, all during the month before trial. Additionally, there are a number of potential additional evidentiary issues that may be raised concerning statements of the accused when those emails are produced. In short, this issue has the potential to significantly delay the case if it is not addressed early. Very Respectfully, Captain Evan S. Day Trial Counsel, Military Justice Office Joint Law Center 3rd MAW/ MCAS Miramar Comm: 858-577-1887 DSN: 312-267-1887 Fax: 858-577-1734 Classification: UNCLASSIFIED//LIMDIS This e-mail is FOR OFFICIAL USE ONLY and is exempt from mandatory disclosure under FOIA. DoD 5400.7R, "DoD Freedom of Information Act Program", DoD Directive 5230.9, "Clearance of DoD Information for Public Release", and DoD Instruction 5230.29, and "Security and Policy Review of DoD Information for Public Release". ATTORNEY-CLIENT PRIVILEGED COMMUNICATION OR ATTORNEY WORK PRODUCT. The information contained in this message is privileged. It is intended only to be read by the individual or entity addressed or their designee. If the reader of this message is not the intended recipient, you are on notice that any distribution of this message, in any form, is prohibited. If you have received this message in error, please immediately notify the sender and delete or destroy any copy of this message. -----Original Message----- From: Hur Capt Christian P Sent: Thursday, July 08, 2010 14:39 To: Day Capt Evan S Cc: 'farajh@gmail.com'; Hatch MAJ Douglas C; Sullivan LtCol Sean Subject: RE: US v. Wacker: Defense Motion to quash subpoena I spoke with Mr. Faraj yesterday and yesterday he proposed the date of 29 September 2010, when the first 39a session was scheduled. His reasoning was that he would not have to fly out here and incur additional expense for Capt Wacker. Christian P. Hur Captain, USMC Senior Defense Counsel Telephone: (619) 524-8713 Fax: (619) 524-6784 Address: Defense Section, Bldg 12, 1st Floor, MCRD, San Diego, CA 92140 This email may contain Attorney Work Product. Please delete if you received this message in error. -----Original Message----- From: Day Capt Evan S Sent: Thursday, July 08, 2010 14:13 To: Hur Capt Christian P Cc: 'farajh@gmail.com'; Hatch MAJ Douglas C; Sullivan LtCol Sean Subject: RE: US v. Wacker: Defense Motion to quash subpoena Gentlemen, Let's set a date before COB. As I mentioned earlier, I am available the entire week of the 19th, as is Capt Hur, and I have no preference which day that week we have the 39a. V/R, Capt Day -----Original Message----- From: Hur Capt Christian P Sent: Wednesday, July 07, 2010 14:10 To: Day Capt Evan S Cc: 'farajh@gmail.com'; Hatch MAJ Douglas C; Sullivan LtCol Sean Subject: RE: US v. Wacker: Defense Motion to quash subpoena Yes, I'm available for all times you mentioned in July as well Capt Day. Christian P. Hur Captain, USMC Senior Defense Counsel Telephone: (619) 524-8713 Fax: (619) 524-6784 Address: Defense Section, Bldg 12, 1st Floor, MCRD, San Diego, CA 92140 This email may contain Attorney Work Product. Please delete if you received this message in error. -----Original Message----- From: Day Capt Evan S Sent: Wednesday, July 07, 2010 14:03 To: Hur Capt Christian P Cc: 'farajh@gmail.com'; Hatch MAJ Douglas C; Sullivan LtCol Sean Subject: RE: US v. Wacker: Defense Motion to quash subpoena Gentlemen, I'm assuming Capt Hur meant July. I'm available the week of the 19th and on the 26th, and unavailable from 27-30 July. We do have another motions hearing on the 20th; however, we are only litigating a single motion on that date in that case, and I believe that we could get both done in one day. Very Respectfully, Captain Evan S. Day Trial Counsel, Military Justice Office Joint Law Center 3rd MAW/ MCAS Miramar Comm: 858-577-1887 DSN: 312-267-1887 Fax: 858-577-1734 Classification: UNCLASSIFIED//LIMDIS This e-mail is FOR OFFICIAL USE ONLY and is exempt from mandatory disclosure under FOIA. DoD 5400.7R, "DoD Freedom of Information Act Program", DoD Directive 5230.9, "Clearance of DoD Information for Public Release", and DoD Instruction 5230.29, and "Security and Policy Review of DoD Information for Public Release". ATTORNEY-CLIENT PRIVILEGED COMMUNICATION OR ATTORNEY WORK PRODUCT. The information contained in this message is privileged. It is intended only to be read by the individual or entity addressed or their designee. If the reader of this message is not the intended recipient, you are on notice that any distribution of this message, in any form, is prohibited. If you have received this message in error, please immediately notify the sender and delete or destroy any copy of this message. -----Original Message----- From: Hur Capt Christian P Sent: Wednesday, July 07, 2010 13:53 To: Day Capt Evan S Cc: 'farajh@gmail.com'; Hatch MAJ Douglas C Subject: FW: US v. Wacker: Defense Motion to quash subpoena Gentlemen, I'm available any day from the 19th of June until the 30th of June to have a 39a to litigate this issue. Christian P. Hur Captain, USMC Senior Defense Counsel Telephone: (619) 524-8713 Fax: (619) 524-6784 Address: Defense Section, Bldg 12, 1st Floor, MCRD, San Diego, CA 92140 This email may contain Attorney Work Product. Please delete if you received this message in error. -----Original Message----- From: Sanzi LtCol Thomas J Sent: Wednesday, July 07, 2010 13:47 To: Hur Capt Christian P Cc: Hatch MAJ Douglas C; Sullivan LtCol Sean; Day Capt Evan S; 'farajh@gmail.com'; Grisalesmery Cpl Alejandro Subject: RE: US v. Wacker: Defense Motion to quash subpoena Gentlemen, If this is still an issue, we need to have a session of court to litigate the matter. Come up with a mutually agreeable date by COB 8 July otherwise I will order a court session to deal with this. Trial Counsel, I have not received anything from you yet. r/s, TS -----Original Message----- From: Hur Capt Christian P Sent: Tuesday, June 29, 2010 17:56 To: Sanzi LtCol Thomas J Cc: Hatch MAJ Douglas C; Sullivan LtCol Sean; Day Capt Evan S; 'farajh@gmail.com'; Grisalesmery Cpl Alejandro Subject: US v. Wacker: Defense Motion to quash subpoena LtCol Sanzi (Sir), This is an emergency motion in response to a subpoena notice by the trial counsel in this case today to obtain the attorney client protected emails of Captain Wacker. Please see attached and below email chain. Mr. Faraj and I, as well as Capt Wacker's other attorneys; communicate with Capt Wacker via his google email accounts and chat almost daily at times. Now, the prosecutor is apparently attempting to subpoena all of Capt Wacker's emails from google. As such, we move this that this subpoena be quashed under RCM 906 as it violates the attorney client communications and privilege that Captain Wacker holds with his attorneys under the JAGINST and Mil. R. Evid. 502 "a client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client...". We specifically request that trial counsel be ordered by you to not execute on the subpoena until a 39a session is held to litigate this matter. Thank you. Christian P. Hur Captain, USMC Senior Defense Counsel Telephone: (619) 524-8713 Fax: (619) 524-6784 Address: Defense Section, Bldg 12, 1st Floor, MCRD, San Diego, CA 92140 This email may contain Attorney Work Product. Please delete if you received this message in error. -----Original Message----- From: Day Capt Evan S Sent: Monday, June 28, 2010 21:31 To: Hur Capt Christian P; 'farajh@gmail.com' Cc: Hatch MAJ Douglas C; Sullivan LtCol Sean Subject: 18 USC 2703 notice US v. Capt Wacker Gentlemen, Please see the notice attached. Very Respectfully, Captain Evan S. Day Senior Trial Counsel, Military Justice Office Joint Law Center 3rd MAW/ MCAS Miramar Comm: 858-577-1887 DSN: 312-267-1887 Fax: 858-577-1734 Classification: UNCLASSIFIED//LIMDIS This e-mail is FOR OFFICIAL USE ONLY and is exempt from mandatory disclosure under FOIA. DoD 5400.7R, "DoD Freedom of Information Act Program", DoD Directive 5230.9, "Clearance of DoD Information for Public Release", and DoD Instruction 5230.29, and "Security and Policy Review of DoD Information for Public Release". ATTORNEY-CLIENT PRIVILEGED COMMUNICATION OR ATTORNEY WORK PRODUCT. The information contained in this message is privileged. It is intended only to be read by the individual or entity addressed or their designee. If the reader of this message is not the intended recipient, you are on notice that any distribution of this message, in any form, is prohibited. If you have received this message in error, please immediately notify the sender and delete or destroy any copy of this message.
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