UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI WESTERN DIVISION FEDERAL TRADE COMMISSION, CASE NO. 4:14-cv-00815-BCW Plaintiff, Vv. BF LABS, INC., et al. Defendants. PLAINTIFF’S MOTION TO APPROVE FILTER REVIEW PROTOCOL Plaintiff, the Federal Trade Commission (“FTC”) hereby respectfully requests that the Court approve its proposed protocol for filtering out potentially privileged materials contained in electronically stored information (“ESI”) obtained by the FTC from Defendants’ premises pursuant to the immediate access provisions of the Temporary Restraining Order. In support of its motion, the FTC states as follows. On September 19, 2014, the FTC and the Receiver entered Defendants’ business premises pursuant to the immediate access provisions of the Temporary Restraining Order. Pursuant to the same provisions, the FTC made copies of numerous documents including ESI. The documents are currently located in a Concordance database that has not yet been reviewed by FTC counsel of record. To ensure that FTC counsel of record does not inadvertently view ESI protected by the attorney-client privilege, the FTC intends to have a filter team review the ESI and remove potentially privileged materials before counsel of record view the documents. The FTC proposes to use the following protocol in reviewing the materials: 1 Case 4:14-cv-00815-BCW Document156 Filed 11/12/14 Page 1 of 4 (1) The filter team will consist of one or more attorneys who may be assisted by paralegals. The attorneys and paralegals are located in a division separate from the division in which counsel of record are located. (2) The filter team will run searches on the Concordance database using search terms to be agreed upon by the parties. (3) All hits will be reviewed by the filter team to determine whether they contain potentially privileged materials. (4) The filter team will stop their review of any particular document upon concluding that it is potentially privileged, and will make a good faith effort to refrain from reviewing the substance of any potentially privileged communication. (5) All documents identified as being potentially privileged will be coded as such. (6) When the filter team has completed their review, the FTC’s litigation support personnel will segregate out those documents marked as potentially privileged into a separate password-protected database. (7) Defendants’ counsel will be provided with a copy of the database containing the potentially privileged documents. FTC counsel of record will be provided with only a log of the contents of the potentially privileged materials. (8) Unless otherwise ordered by the Court or agreed to by the parties, FTC counsel of record will not have access to the database containing the potentially privileged materials. The FTC believes that conducting the filter review using the above protocol will allow the FTC counsel of record access to the ESI obtained during the immediate access while ensuring that counsel of record does not view privileged materials. Zz Case 4:14-cv-00815-BCW Document 156 Filed 11/12/14 Page 2 of 4 WHEREFORE, the FTC respectfully requests this Court enter an order approving the above filter review protocols. Respectfully submitted, JONATHAN E. NUECHTERLEIN General Counsel Dated: November 12, 2014 /s/ Gregory A. Ashe Helen Wong, DC Bar # 997800 Teresa N. Kosmidis, NY Bar# 4533824 Leah Frazier, DC Bar# 492540 Gregory A. Ashe, VA Bar #39131 Federal Trade Commission 600 Pennsylvania Ave., N.W. Mail Stop CC-10232 Washington, D.C. 20580 202-326-3779 (Wong) 202-326-3216 (Kosmidis) 202-326-2187 (Frazier) 202-326-3719 (Ashe) Facsimile: 202-326-3768 hwong @ ftc.gov tkosmidis @ftc.gov Ifrazier@ftc.gov gashe @ftc.gov TAMMY DICKINSON United States Attorney Dated: November 12, 2014 /s/ Charles M. Thomas Charles M. Thomas, MO Bar #28522 Assistant United States Attorney Charles Evans Whittaker Courthouse 400 East Ninth Street, Room 5510 Kansas City, MO 64106 Telephone: (816) 426-3130 Facsimile: (816) 426-3165 E-mail: charles.thomas @usdoj.gov Attorneys for Plaintiff FEDERAL TRADE COMMISSION 3 Case 4:14-cv-00815-BCW Document156 Filed 11/12/14 Page 3 of 4 CERTIFICATE OF SERVICE The undersigned hereby certifies thaton November 12, 2014, a true and correct copy of the foregoing was filed electronically with the United States District Court for the Western District of Missouri using the CM/ECF system, which sent notification to all parties of interest participating in the CM/ECF system. /s/ Gregory A. Ashe Attorney for Plaintiff Federal Trade Commission 4 Case 4:14-cv-00815-BCW Document156 Filed 11/12/14 Page 4 of 4