EFTA00105705.pdf

1 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x THE NEW YORK TIMES COMPANY, Plaintiff, v. 20 CV 833 (PAE) Remote Conference FEDERAL BUREAU OF PRISONS, Defendant. Before: x New York, N.Y. April 9, 2021 4:00 p.m. HON. PAUL A. ENGELMAYER, District Judge APPEARANCES THE NEW YORK TIMES COMPANY BY: DAVID EDWARD McCRAW ALEXANDRA SETTELMAYER AUDREY STRAUSS, United States Attorney for the Southern District of New York STEVEN J. KOCHEVAR Assistant United States Attorney ALSO PRESENT: KARA CHRISTENSON, BOP SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105705 2 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (The Court and all parties appearing telephonically) THE COURT: Good afternoon. This is Judge Engelmayer. Let me begin by asking my law clerk to confirm that all counsel are on the line. THE LAW CLERK: Hi, Judge. That's correct. And the court reporter, Mr. Walker. THE COURT: Very good. Then let me take the roll. Who do I have for the New York Times? MS. SETTELMAYER: Your Honor, you have Alexandra Settelmayer on behalf of Plaintiff New York Times Company. I'm here with my colleague, David McCraw. THE COURT: Very good. Good afternoon to both of you. Who do I have for the government on behalf of the Federal Bureau of Prisons? MR. KOCHEVAR: Steven Kochevar, your Honor. Good afternoon. THE COURT: Good afternoon, Mr. Kochevar. And, Mr. Walker, our court reporter, are you on the line? (Pause) THE COURT: Good afternoon, and, as always, thank you for your service. This the case of New York Times versus Federal Bureau of Prisons, 20 CV 833. We here are for oral argument on the reciprocal motions for summary judgment by both sides. At the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105706 3 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 outset, let me thank counsel for careful and thoughtful pairs of briefs, really, on both sides. I've given thought to the right sequence here. I think it makes the most sense for the defendant, for counsel for Bureau of Prisons, to go first, really because, for the most part, they are in the process of explaining the withholdings and redactions, and so I think the discussion works best with them going first and with The New York Times going second. With that, Mr. Kochevar, I'll hear you first. MR. KOCHEVAR: Absolutely. Thank you, your Honor. There are several exemptions in play here, but I'll start with Exemption 7(A) and note at the outset that if the Court upholds the Exemption 7(A) withholding, then some of the other issues that are in play here need not be reached. But with that in mind, I'll start with Exemption 7(A). With respect to the documents withheld under 7(A), the government has met its burden by showing a rational link between disclosure of the documents and ongoing law enforcement proceedings. Specifically, the government has demonstrated a rational link between disclosure of the documents and interference with the pending criminal proceedings of Tova Noel and Michael Thomas as well as the criminal prosecution of Nicholas Tartaglione. These are weighty pending criminal proceedings, and the government has clearly explained how SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105707 4 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 release of the documents could reasonably be expected to interfere with them. I think that there are really two points in dispute right now with respect to the government's application of Exemption 7(A), and, respectfully, neither of them are particularly close calls. First is the question of whether the documents were compiled for law enforcement purposes. And, as noted, in I believe both briefs, the Tenth Circuit has adopted a per-se rule. THE COURT: Let me just pause you on the doctrine for just a moment. Assume for argument's sake that my perspective is not the per-se rule but something more akin to what Judge Oetken used. So I'd urge you, without in any way conceding the broader legal point that I know you have made, it would be more fruitful for me for you to argue it other than on a per-se basis. MR. KOCHEVAR: Absolutely. So, applying the more practical standard that Judge Oetken applied in this district, the showing there is just a rational nexus between the compilation of the records and law enforcement. And, here, I would say there are multiple independently sufficient reasons that there's a rational relationship between these documents and law enforcement. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105708 5 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The first one is that they relate to the pretrial detention of an individual or multiple individuals, and that is in itself a law enforcement purpose. The second one is that these documents, like many BOP documents, pertain to the safety and security of BOP facilities. So, there's sort of, even separate from the criminal proceedings that are necessarily going to be in play if someone is in BOP custody, there's also a separate law enforcement interest and purpose that BOP has to enforce the law within its own facilities. So the documents also pertain to that. But the third reason that these are also compiled for law enforcement purposes is that the law is that a document does not have to meet this standard in the first instance in and that it doesn't actually have to be created for a law enforcement purpose provided that it's later compiled for one. The documents here were created for law enforcement purposes, but even setting that aside, the fact that they were later compiled in connection with investigations, including some of them in connection with the pending criminal prosecutions that we're going to talk about in a second, that would also show that they were compiled for law enforcement purposes. So, overall, I think the point is that even if the Court does not adopt the Tenth Circuit's per-se rule, much of the insights or thinking of the Tenth Circuit is still going to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105709 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 come in here because BOP is a law enforcement agency and much of what it does is suited to law enforcement, is directed at law enforcement purposes. THE COURT: Given the way you're conceiving of things, what BOP-held documents would not qualify as compiled for law enforcement purposes? MR. KOCHEVAR: I think, under the rational nexus approach, I think there's an example — I'm not going to remember exactly what it is - from Judge Oetken's opinion but I think it was, you know, a BOP document that lists all BOP facilities or something like that, things that are mundane and are not going to really implicate security interests at BOP are not related to specific inmates or any criminal proceedings with them. And then beyond that, like I said before, even if you have some mundane documents like that, they may be later compiled for some law enforcement purpose -- THE COURT: But, for example, a document that just describes conditions of confinement — let us say, COVID-related conditions of confinement or general, you know, cleanliness versus filth, something like that — would that be a law enforcement purpose? MR. KOCHEVAR: I think many of those documents actually would be, your Honor; specifically, I think in terms of COVID, because they would implicate some of the security issues that BOP deals with as a law enforcement agency within SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105710 7 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 its own facilities. I want to use maybe the example of like a contract for outside maintenance work at a BOP facility may be -- if there's like a contract for someone to come, and, I don't know, fix the bushes outside. I don't mean to be flippant here but I'm just trying to think of things that are not related to the core purposes of BOP's work with inmates and all the various issues that are implicated in the penological context but that are BOP documents, those are the ones, I think, that are going to fall outside the rational nexus test but would fall, of course, within the per-se rule. But my point overall here is that the documents we're talking about in this case are pretty far away from that category, for the multiple reasons that I just listed — they are about inmates' pretrial detention, they do implicate the security concerns and internal law enforcement concerns that BOP has, and then also many of them were later compiled for other investigatory purposes. THE COURT: Let me move you to the second prong of 7(A) because I think that is, more than the first, where the action is here. MR. KOCHEVAR: Sure, absolutely, your Honor. So, disclosure of the documents could reasonably be expected to interfere with multiple criminal prosecutions in this district. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105711 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 First, I'll start with the Tartaglione documents. But I want to sort of be clear that the Court does not actually need to reach that issue of the Tartaglione documents if it upholds the documents -- actually, I should flip this, I should start with the Noel documents. THE COURT: Actually, I'm going to start with Tartaglione because that's where I intended to start you. So why don't you stick with the original game plan. MR. KOCHEVAR: Sure. THE COURT: In fact, let me start us off on Tartaglione because I may be able to zero in on what is of particular concern. I could not follow, although I've read both Capone declarations, including the first one — which, starting around paragraph 28, engages with Tartaglione — I couldn't think up, except with some degree of speculation, which of the entries on the index of withholdings in full — and there are 60 of them and 57 are withheld in full under 7(A) — lost to me was how much of those are being withheld in full on 7(A) on account of Tartaglione or, for that matter, in part, because of Tartaglione under 7(A). Can you tell me, of the 57 categories here, how much of them have some degree of withholding on account of Tartaglione? MR. KOCHEVAR: I apologize, I can't give you a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105712 9 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 specific number. And this is actually a wider procedural point about what, frankly, would need to happen depending on how the Court ruled. Because many of these are withheld in full under 7(A), more broadly under Noel, I think, if the Court were not to uphold certain withholdings, there interest would need to be a period where BOP would go back in and sort of very precisely determine which documents or portions of documents -- THE COURT: Pause on that. There are a couple of premises in there. I trust that an AUSA has looked at every single document that has been withheld or redacted in this case. Is that correct? MR. KOCHEVAR: Yes, absolutely, your Honor. And to be clear, I can tell you in general -- I just -- I don't have it at my fingertips, a number for the specific -- THE COURT: Well, but I think it's important. And let me just go through a couple of aspects of methodology. The first thing I wanted to make sure that the lawyer, not the client here, meaning the U.S. Attorney's Office and not a lawyer at BOP or somebody else at BOP, made the calls here. Are you representing to me that for every single document that has either been withheld or redacted, an AUSA signed off, with eyes on the document, on that decision? MR. KOCHEVAR: Yes, that is correct, your Honor. THE COURT: Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105713 10 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So, as to Tartaglione, is there somewhere, even if not yet presented to the Court, a grid or something that would reflect essentially which entries, and within the entries which documents, are being withheld, at least in part, on the basis of Tartaglione? MR. KOCHEVAR: No, other than -- well, other than the descriptions of the documents given in the declarations supporting the withholding, no, we don't have a chart specifically on that. And there is somewhat of a reason for that separate from just how things were presented, which is that I think there's some concern that providing too detailed a description of some of these documents and their contents could start to tread into some of the underlying concerns here. THE COURT: With respect, I think "too detailed" is not the problem here; I think the problem is that there's too much of a "trust us" quality about the description here. As my staff and I went through paragraph 28 and what followed, we were able to come up with, broadly, what looked to be to us 20 to 25 separate entries where there appear to be withholdings of documents withheld on account of Tartaglione — I could rattle them off for you, I don't think it would be productive — but based on the short clauses in the Capone declaration. But, in truth, the problem is, as the Court, I'm left with a degree of guessing as to whether it's correct that entry 19, medical and psychological records of Epstein, or 31, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105714 11 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 investigative documents from suicide, or 41, psychological reconstruction responses -- you know, there's plenty in here that suggests that materials for Tartaglione have been withheld that relate not just to July 23rd but to August 10, and I'm just left with way too much guessing here in terms of ticking and tying the categories to Tartaglione. MR. KOCHEVAR: I'm not -- if this is -- I don't know if this addresses the Court's concerns, but I believe everything withheld in full under 7(A) is independently withheld in full under Noel. THE COURT: We'll get to Noel, we're going to get to Noel, but since the government has put Tartaglione front and center here, I'm entitled to probe. Let me try this: Has a single document here been withheld under Tartaglione that relates to the events of August 10th? MR. KOCHEVAR: So, in some sense, yes, in that I believe -- and I want to be careful here because I don't have the documents in front of me but my understanding is that there are certain documents that relate to the events of August 10th that also include some history of Epstein's incarceration such that it includes descriptions of his prior apparent suicide attempt on July 23rd. THE COURT: And if that were the case, though, to the extent we're talking about Tartaglione, though, only a limited SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105715 12 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 subset, that that really gets at the July date -- sorry, I think somebody needs to mute the phone. If there is a synthetic document that covers a lot of Epstein history, I understand the point that a subset that relates to July 23rd might be withholdable under Tartaglione, but that would not implicate the entire document, right? MR. KOCHEVAR: With the exception that I think some of these documents — and I believe this is noted in the Capone declaration — there are concerns about even releasing them in part because I think the idea, first, in the Tartaglione case that there would be documents, heavily redacted documents related to Jeffrey Epstein that came out and there was just a little piece of them without context, I think that some of the 7(A) concerns would apply there as well. THE COURT: Wait, because you're saying that, in effect, if the government redacts too much, that raises its own concern about the limited amount it allows to be seen? I'm puzzled. That's a somewhat backwards argument, which is, if we're very aggressive about what we withhold, that justifies us in withholding yet more because it creates a mystery as to what must be underneath the blacked-out part. Is that what you're saying? MR. KOCHEVAR: I think what I'm saying is that the particular concerns here, particularly about jurors and the understanding of potential jurors in a death penalty case like SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105716 13 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Tartaglione's, the idea that there would be documents released that might not give a complete picture and given how some of these events have been reported on and perceived broadly, that there would be concern that partial -- it's maybe different from the typical case where it's a little easier to go in and just take out precise portions where we say, oh, this is about the 23rd and this is not and therefore this piece goes and this piece doesn't. I think there is a concern beyond that here, that if there are documents that do not have full context that come out that give certain impressions, because of the wider landscape here, there is sort of a broader set of concerns than -- THE COURT: I'm not sure I'm following. Let me see if I understand the theory under Tartaglione. As I understand it, there's no argument that his bunking with Epstein has anything to do with the liability phase. Tartaglione is, as I understand it, claiming that if he is convicted at trial, he wants to somehow use it as a mitigating fact that he, I gather, alerted the authorities to a suicide attempt by Epstein. Is there more to it than that? MR. KOCHEVAR: I am -- I can answer directly on the liability part. I do not think any part of Mr. Tartaglione's liability is at issue here. I think the concerns arise, yes, from the penalty phase or the possible penalty phase of his proceeding. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105717 14 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Right. MR. KOCHEVAR: And I think the defense has said there that his actions with Epstein reflect positively on Mr. Tartaglione. THE COURT: Is there anything else, besides the fact that he assertedly intervened to report a suicide attempt — that appears to be the theory here — is there anything else about his cohabitation with Epstein that is any part, as it's been described by the defense in the case, as any part of the mitigation case? I don't understand him to be arguing that it's a mitigating fact that conditions in the MCC were assertedly substandard. That's sympathetic at sentencing perhaps but I've never heard any law that says that's a mitigating factor in a capital case, nor have I understood you to be even articulating that. I understand it solely to be that he apparently did a good deed by reporting Epstein's suicide attempt. MR. KOCHEVAR: So, respectfully -- and I'm not trying to be evasive here, your Honor, but I can't make a full representation as to what the defense's theories are or will be in Tartaglione. THE COURT: But you need, if you're going to be withholding under FOIA, to be able to articulate what at least you have in mind beyond that, because it can't be that Tartaglione says "Epstein," and then, you know, this Iron SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105718 15 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Curtain descends over the Bureau of Prisons' production; you need to articulate what it is, what the factual component is, of the interaction between Tartaglione and Epstein and then we can use that as a measuring gauge for species of documents. So, let me try it this way: Understanding that the defense may have been opaque in Tartaglione as to what it has in mind, what theories is the government articulating, or does it have in mind, as to potential mitigation use of the bunking with Epstein by Tartaglione? What premises is it using to define what is exempt under FOIA? MR. KOCHEVAR: So, respectfully, I think the government disagrees with a little bit of the framing of the law that you just put out there. The standard here is to articulate a rational link between disclosure of the documents and interference -- THE COURT: So, articulate a rational link for me, other than the thesis that at a particular moment in time he reported Epstein's suicide attempt. Is there some other rational link here? If you wanted to use that language, I'm happy to use it. I'm just trying to pin you down so we can move on. I've got a lot of ground to cover with Noel but I'm not going to get there until we get through Tartaglione, and I want to define the Tartaglione problem. MR. KOCHEVAR: Sure. I think there are two letters on the docket in the Tartaglione case that are cited in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105719 16 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 government's brief here, and I believe in the Capone declaration as well; and they have, I think, various ideas in them from the defense in that case. I believe the conditions of his confinement are at issue there as well. I believe the events of Mr. -- THE COURT: Meaning that it would be a mitigating fact that the heating system is off, or there are vermin, or something like that? MR. KOCHEVAR: I believe that's implicated in the letters, yes. But I think -- and also the events of Mr. Epstein's apparent suicide attempt are also raised in those letters. But I want to be clear that, respectfully, I don't think the government needs to go into very precise specifics here because the concern is that the government does not know exactly what the defense is going to bring in at the penalty phase of that proceeding, and in the broader context here, there are big concerns that getting anywhere near this stuff is going to hurt, or could reasonably be expected to harm, the integrity of that proceeding. And FOIA, I think, really does carve out criminal proceedings like this, especially a death penalty proceeding, which is sort of the weightiest law enforcement proceeding there is. So I think there's going to be a zone around any of the issues that the defense has raised or might raise or has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105720 17 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 indicated in any way that they will raise, and that -- THE COURT: But, sorry, sorry, at that concept level, it's hard to disagree about a zone and about the importance of the proceeding, but one still needs to -- the conversation can't simply stop with invoking Jeffrey Epstein and capital case. I think, for example, it is a reasonable question for a court to say -- let me ask you: When does the guy stop rooming with Epstein, Tartaglione? MR. KOCHEVAR: I don't have the immediate date. I believe it's shortly after his apparent suicide attempt. THE COURT: I believe that to be correct, from what I've read in some of the papers here. Is there a coherent theory under which what happens to Epstein after the two of them stop being bunkmates is implicated here? Or is it like tag, where Epstein got tagged by this guy once and now everything's off limits? I really am not being sarcastic, but it is highly likely at the end of this process that I'm going to direct immediate production of all this material with a tag as to what exemption, as between Noel and Tartaglione, which is being withheld for what basis, and I'm trying to understand what your boundaries are on Tartaglione because the papers do not give me anything tangible to go on. here. MR. KOCHEVAR: Sure. I understand the Court's concern SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105721 18 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So, yes, there's a large number of documents, I think, afterwards where he's no longer rooming with Epstein, like certain -- the count documents or something, where Tartaglione is not implicated at all. I just can't be global in that because I do recall that there are later reports that are fairly thorough, that he pops up sometimes and specifically discussions of the July 23rd events pop up. THE COURT: Fair enough. But that would be a situation in which one would think redaction more than withhold in full; in other words, if there's a synthetic historical narrative, there's going to be a portion -- Tartaglione is the word "cameo role" almost naturally presents itself in the Epstein period of time at the MCC, there's a brief Tartaglione window here. And to the extent there are documents that are systematic with respect to Epstein, redaction appears to be a rational response here. But once they separate, except insofar as there's a theory that the general conditions of confinement as a whole at the MCC are somehow a mitigation theory that requires anything about what the conditions are at the MCC to be withheld -- otherwise, I think you're talking redaction, are you not? MR. KOCHEVAR: Oh, I understand a little bit more what you're -- yes, broadly, like every document related to conditions of confinement at the MCC, I don't think that that would fall under the Tartaglione withholding theory here. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105722 19 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Nor would Tartaglione justify -- the last 17, 18 days of Epstein's life, Tartaglione is not part of his life, right? MR. KOCHEVAR: So, there are, I think, possibly some documents -- and this is -- I think I need to be careful, I apologize but I have to be careful about -- there are certain, I believe, what you might call more administrative documents, where because they are not cellmates but they are still in the same facility, and in some of these, frankly, they appear next to each other by coincidence, but because their interactions, I think even for some of those documents there are concerns about release. So -- THE COURT: Let me pin you down here. Paragraph 32 of Capone describes categories of records withheld by BOP. And I'm just zeroing in reports and evidence of Epstein's death on August 10, 2019, period. That's between a semicolon right there. I don't get it. Maybe there's something there that looks historically back at the Tartaglione scene, but I'm having difficulty understanding how something could be withheld. A category as important to the FOIA request as that on the basis of Tartaglione. That's very, very inexact. MR. KOCHEVAR: Yeah, I think that is primarily the theory that we've already discussed, that there are — I believe -- again, I don't have this in front of me but I believe that is the theory there. Although, again, I need to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105723 20 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 note that there is a broader concern here that because of all the coverage of these cases, that I need to be clear that I think there is a theory that extends beyond specific mentions of Tartaglione, such that these documents could be withheld more broadly than that just because the discussions about Epstein's incarceration, they may have some bearing on Tartaglione's -- THE COURT: I don't follow. Let's suppose that the New York Times gets the August 10th materials. Pretend Noel isn't part of this, and so understand it's just on Tartaglione. And suppose The New York Times does a soup-to-nuts description of the last 24 hours of Epstein's life and the investigation thereafter, and all that we have carved out is the events that Tartaglione was percipient to and the condition of the joint area that he and Epstein shared. So, maybe the Bureau of Prisons comes across horribly for letting somebody die on their watch and for any number of other misdeeds, but I don't understand how that implicates the government's trial interests in Tartaglione, where they are defending at the mitigation stage against the theory that Tartaglione acted nobly in reporting the suicide and endured crummy conditions when bunking with Epstein. MR. KOCHEVAR: I think the issue here is that Mr. Tartaglione has claimed that his contacts with Epstein, whatever they are, are going to reflect positively on him. And SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105724 21 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 so that means that the defense has put Epstein at issue, Epstein's life, the details of his incarceration, at issue in the penalty phase of a death penalty proceeding. THE COURT: Sorry. That's a sound bite that you can expect to read in an opinion of mine because the idea that Epstein's life is triggered by the brief brush across the stage of Mr. Tartaglione in the same scene as Epstein is just exactly the problem here, which is, I'm unable to judge whether there's been any rigorous attempt to tailor or whether the invocation of Epstein has broadly been used to justify excessive withholding. I'm not doubting there's something here that's properly withheld; it's the linkage and it's a scale issue, and I'm having difficulty with the idea that because Tartaglione breathed the word "Epstein," quote, as you just put it, Epstein's life now is off-limits. MR. KOCHEVAR: Respectfully, the issue here is the integrity of the criminal proceeding against Tartaglione. And I think — and this will probably be an issue later on as well — the government doesn't know exactly how a criminal trial will go there. They don't know the theories that the defense is going to put on. And I don't think that FOR -- FOIA, I think, gives a zone, some breathing room there basically; and specifically in this case, where we're way past the rational link, this stuff has directly been put on the docket in a criminal case that's been put at issue. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105725 22 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So, with facts like that, I think there is a zone beyond that where the government can reasonably say, listen, we want to be careful and not affect a death penalty trial, and, look, it's defense counsel has represented -- and we don't really know exactly what they're talking about, I can't represent exactly what they're talking about, but we know there are going to be issues there. I think under the FOIA standard of a rational link, I think that's exactly what Congress had in mind in terms of carving out 7(A). FOIA is not supposed to interfere with proceedings like that. THE COURT: No, no, no, but you're assuming the conclusion of interference. Let me ask you this question: Can you assure me that any document that has been withheld on the basis of Tartaglione, either mentions Tartaglione, mentions July 23rd, or mentions their common cell? MR. KOCHEVAR: No, because I know of other documents -- again, some of them are -- there is an issue here because explaining some of this stuff -- there are also a category of documents that I understand their appearance next to each other to be essentially coincidental, but, given the context here and given the issues that I just walked through, there is a concern about releasing even documents that have like a coincidental connection between -- oh, I'm sorry, perhaps those documents would include the name, so perhaps that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105726 23 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 doesn't fall outside of the Court's question. THE COURT: Look, in the end, I appreciate that you're hamstrung to some degree in the explanation you can give, but I think you can see the frustrating situation a court is put in, being told rational relationship, zone, nexus, law enforcement, but given the small role that Tartaglione plays even in the Bureau of Prisons part of the Epstein life, you can understand the concern. And it's magnified by at least the nonpreservation presentation to the Court of anything that would allow me to gauge how many of the 57 out of 60 categories which have been withheld in full are being withheld in full on the basis of Tartaglione. Let's move on to Noel because I think you understand the concern I'm raising here. Noel — help me with this — I've read the indictment in the case and I've tried to familiarize myself with the filings, and I appreciate the gravity of the prosecution. The charges relate uniquely to events that begin on August 9th. There is background about this Epstein guy, and that he's at the MCC, but the case is about the events of August 9th and 10th, correct? MR. KOCHEVAR: In terms of the immediate events that I think are the subject of the charges, yes, but I want to -- and I will unfortunately have to return to a theme here, that I think the understanding is that it's possible that the trial SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105727 24 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 could implicate times before then, for sure. THE COURT: May I ask you a question. I mean, I understand the reason why anyone paid any attention to the alleged false statements and lapse by these defendants is because of Epstein — that's what drew everyone's attention to it — but at the end of the day, the offense here is not itself immediately about Epstein, it's about the failure to do the rounds, and the lie, and the coverup about it, right? MR. KOCHEVAR: Again, I'm -- I think the answer to your question is yes, but I have to caveat here, that I'm in a little bit of a tricky position as an AUSA. I don't want to say things that bind prosecutors in a criminal case -- THE COURT: And you're not. I'm asking for your understanding, and I'll make a record here that nothing you are saying is binding; you're merely trying to capture what your thought process, as a careful person of integrity, was in participating in the FOIA decision-making process and in justifying it to the Court. But, having been on the criminal side of things as a prosecutor decades ago, I wouldn't have wanted a FOIA statement to bind me, and nor does it. So we've got a clear record on that. MR. KOCHEVAR: Okay. THE COURT: In other words, Epstein is what prompts everyone to catch the violation here, but, at the end of the day, Epstein's just another inmate who wasn't seen during the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105728 25 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rounds and who is within the scope of the false statement that's allegedly told by the defendants, right? MR. KOCHEVAR: Yes — thank you for that, your Honor — and, and, yes, I think, to some extent, you've actually put your finger on why the withholdings extend back further, because the case is, I think, in many ways about what happened at -- like what BOP employees did at MCC. And that could implicate sort of what typically happens at BOP or, for some of the earlier documents, I think what specific people did at BOP on certain dates. So -- THE COURT: Wait a minute, wait a minute. Is what you're saying that because there's going to be perhaps general testimony of background at BOP, about the general procedures and about the fact that on some prior days these defendants did or didn't comply with their round-walking duties, essentially, the Noel prosecution knocks out of bounds all Epstein-related events, beginning with his admission to the MCC? The case is fundamentally about a narrow 24-hour window, isn't it? MR. KOCHEVAR: No. To be clear, I think BOP has released a number of Epstein-related documents at this point, so it's not like it covers everything of his time there. The withheld ones, they do pertain in part to what you were just talking about in terms of if there's going to be, I think -- there's some expectation there's going to be evidence about practices at MCC related specifically to Epstein or not. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105729 26 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 think beyond that, there's also a concern that, in addition to just sort of what happens at BOP evidence, given the circumstances, specific things about the events of June 23rd and thereabout are also going to be brought up at that trial. Again, though, I have to be -- I know this is somewhat unsatisfying, but there is also the point that I don't know -- the government doesn't know exactly what is going to happen really at any criminal trial, of course, before it starts, but particularly here, when the defense is entitled to put on what case it will put on, and, given the circumstances and context of this case, I think, again, as we just talked about with Mr. Tartaglione, although possibly, to be clear, to an even greater extent here because the Epstein things are directly related to the liability pieces of the Noel criminal proceedings, there's going to be a substantial zone of things where it's an expectation of reasonable or reasonable expectation of interference. THE COURT: Let me push back a bit. You have withheld an incident report of Jeffrey Epstein's July 23rd, 2019, apparent suicide attempt. Putting aside Tartaglione, it appears, from what the government has submitted, that that has been withheld on the basis of Noel as well. Is that true? And, if so, what's the justification? In other words, what could a report about the July 23rd incident have to do with the Noel and Thomas' failure to complete inmate SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105730 27 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 counts three weeks later? MR. KOCHEVAR: So, I have to be careful about how precise I get here, but there are people who work at BOP who could be involved in multiple incidents that happened there, and such that -- THE COURT: In other words, hypothetically, it could be a similar act, the same people could have failed -- if your evidence was, the same people failed to do the rounds that day, the government might want to offer that in evidence? MR. KOCHEVAR: Again, I can't speak to -- and this is actually going beyond me not wanting to bind anyone, I actually don't know the specific -- (Pause) THE COURT: Hello? MR. KOCHEVAR: -- cast of characters here that are going to appear in multiple documents. And so, yes, there is a concern that one side, a side, at a Noel trial would want to rely on these. And I also think the particular context of this case, and I guess the status of the defendants as employees, I think there are concerns about witnesses and witness testimony, and, again, all of that leads to a zone where release of many of these documents, there is a risk that it would interfere, there would be concerns about witnesses conforming their testimony, you know, to documents, or being made aware of things that they aren't aware of now. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105731 28 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: What about medical and psychological records about Epstein? That's entry 19. How is that relevant to the false count certifications in the Noel case? MR. KOCHEVAR: So, I believe that many of the medical records are already released, at least in part. I believe -- THE COURT: In category 19, which is what I'm quoting here, it says withheld in full under 7(A). It says medical and psychological records of Epstein, 48 pages, and it says withheld in full. MR. KOCHEVAR: I'm sorry, I apologize, that is maybe ambiguous. That is not -- that does not mean all the medical records in full have been withheld, I believe, but some medical records have been withheld, such as those pertaining to the night of Epstein's suicide or, I believe, some pertaining to the night of his apparent suicide attempt. I believe all of the psychological records have been withheld in full under 7(A), and I believe the theory of that is the idea that many of them relate to his -- I guess the theory is that they relate to his -- the idea of his prior suicide attempt implicates his later suicide and such that it is at issue; pretty much all the psychological records are going to also be at issue in connection with that. But, to be clear -- THE COURT: Wait. Maybe that has something to do with Tartaglione, or at least the July 23rd part does, but, sorry, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105732 29 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 help me with that. In other words, why is it Epstein's psychological records, what do they have to do with the 1001 violation in Noel? MR. KOCHEVAR: I guess I want to be careful here, with the qualifications we talked about earlier. My understanding is that there's a sort of like notice theory or something, that the fact that he -- his placement on suicide watch, his removal from suicide watch, things like that, implicate those concerns that we talked about before, in terms of the details of his incarceration being relevant to the immediate events at issue in the Noel case. So, decisions -- and all of that implicates his prior suicide attempt, the circumstances of that attempt, BOP's response to that attempt; that whole set of things is going to be at issue because they sort of shape the setup to what happened on the night August 9th. THE COURT: Is it your representation, though, that there are materials withheld in full that are in this category — which is to say, psychological and medical records of Jeffrey Epstein that are withheld in full — on account of Noel? MR. KOCHEVAR: Yes. THE COURT: What about entries 212 and 41, psychological reconstruction of inmate deaths? This report — I'm reading aloud — typically includes education, marital status, religion, race, occupation, medical history, release SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105733 30 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 plans, institutional infractions. It may be bits and pieces, but I'm having difficulty with the idea of that being withheld in full on the basis of "a false statement prosecution involving orderly rounds." MR. KOCHEVAR: I'm not sure what -- the concern with all of these, just to sort of recenter things, is that they may be trial exhibits, the subject of witness testimony, and/or were prepared by witnesses who will testify at trial. That draws a rational link between the stuff that we're talking about here and interference of the criminal proceeding. THE COURT: Wait. So you're saying if somebody is going to be a trial witness, any document involving them, even if utterly extraneous, is off limits because it could serve to impeach them? In other words, let's suppose you got a trial witness in the Noel case, and in a FOIA request there's information that in a completely separate part of their life they told a fib but it's obviously potentially useful ammo for the defense at trial. Is it your view that FOIA allows you not to present that because it could be harmful to the government's case? Is that what you're saying? MR. KOCHEVAR: I don't think so, your Honor. I'm not sure -- if I understand the question correctly, then I don't think so because these are not sort of completely unrelated documents; these are, again, BOP documents that are related to his incarceration. So I think if they -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105734 31 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: But Noel is a false statement case about rounds. And you appear to be saying either anything that touches -- almost anything that touches Epstein is a rational relationship or anything that touches a trial witness is a rational relationship, and I am kind of skeptical. Help with me that. Are you really saying that documents that bear on a potential trial witness for that reason get excluded? MR. KOCHEVAR: So, the question -- I apologize. The theory here is that, is there an expectation on the part of prosecutors that these might come in at trial or be used at trial, and there is an expectation for documents like that. As I've already said, it's not clear exactly what's going to happen at the trial, but for these documents, including things like psychological records, there is some expectation that they may come in, and so it would interfere with the trial to have them publicly released. But that doesn't extend -- I don't think that withholdings have been claimed over documents that are totally unrelated here. THE COURT: All right. Let me see if I can try it this way: The standard, under Rule 16 of the Federal Rules of criminal discovery, is itself quite broad. I assume you're representing to me that anything that you are withholding here in connection with the Noel prosecution has been produced in discovery to the Noel defendant. Is that what you're SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105735 32 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 representing? MR. KOCHEVAR: I cannot represent 100 percent on that, but many of the documents, yes, were produced -- THE COURT: Sure, many have, but "many" doesn't cut it here. I'm trying to figure out: Since you have a broad theory of potential relevance or utility to the defense of various documents, including along the theories you've articulated, has somebody gone through the exercise to make sure that all the documents concerned at the civil division in the U.S. Attorney's Office, that could move the needle at a Noel trial, were in fact produced to Noel's defense lawyers? Has somebody gone through that exercise? MR. KOCHEVAR: Yes, I mean, as noted in the briefs -- and, again, I don't want to make representations in a criminal case, but my understanding is, yes, the prosecutors in Noel have looked at everything that's withheld and they have made appropriate discovery disclosures. THE COURT: No, no, no, I'm not asking you whether they've attempted to do their job. I'm trying to figure out whether the left hand and the right hand of the government are in sync. Your thesis here is that the documents you've withheld on account of Noel have, in the vernacular, some capacity to move the needle in the Noel case. And treating that as an honestly-held determination you've made, the natural question SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105736 33 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is: That articulation comes awful close to the standard that a prosecutor would be flying under Federal Rule of Criminal Procedure 16 in terms of primary source Rule 16 discovery. I'm asking you how the materials withheld, in effect with the blessing of the civil division, in this case align with the materials produced under Rule 16 by the criminal division? MR. KOCHEVAR: So, I understand what the Court is getting at, and I believe that exercise has been done. I have discussed that. THE COURT: What is the comparison of the two? MR. KOCHEVAR: I guess I have not -- I can't make a representation that all of them have been made because I don't know if we've actually gone through and like compared every document, but my understanding is that, certainly -- I mean, the basis for the 7(A) withholding here is interference with the case. I also, I apologize, I don't know sort of the details of the Rule 16 obligations in the case, so, I'm not trying to be evasive but I guess there could be some category of documents that falls outside of Rule 16 that would nonetheless fall in the FOIA -- have significance in the FOIA context. I don't think that's a large category of documents, but I don't want to represent that it doesn't exist. THE COURT: Let me ask you about a few discrete items. I want to bring this to a close because I want to give our SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105737 34 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 court reporter a brief break and hear from the other side. Let me go through a couple items to help me make sense of this. Entry 39 is called "Copout Note." I have no idea what that is. What is that? MR. KOCHEVAR: I believe it's a note about -- I believe that means when someone leaves a cell. THE COURT: And I guess there's nothing about entry 39 more than that that would enable me to make any judgment whether that's properly or improperly withheld; it's not, for example, dated or something? MR. KOCHEVAR: So, under Exemption 7(A), the government can make categorical exemptions of documents. So, there are categories set out in the Capone declaration which, under the FOR standard, it draws a rational link between the withholding of those categories of documents. THE COURT: Does that mean any copout note, as you've just defined it, that's the category? Or is the category, you know, Epstein copout note July 23rd or August 9 or 10? Yes, I understand your proposition, but it doesn't mean that you have an unrestricted hand in how you define the category. Obviously, that, taken to its logical extreme, would take anything produced in the building and keep it exempt. So, I mean, the devil is in the details here. What's the parameter being used to exclude copout notes? MR. KOCHEVAR: So, I believe -- hang on one second. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105738 35 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I believe it would be paragraph 21 of the Capone declaration, is what would cover that, and that it is a document relating to accounts of inmates. I believe that that is -- so, the basic idea is that the categories are set out in the Capone declaration. And I believe that's actually all the government -- that that carries the government's burden here, in that -- I'm sorry, maybe -- I may not have the paragraph right, but the categories are set out in the Capone declaration. The index is sort of above and beyond that here in that it's intended to provide some sense of what these documents are. But the Court does not need, under 7(A), a sort of specific description of document by document; I think it's well settled law that for 7(A) there can be categorical descriptions of withholdings, provided that there is a rational link between those categories and interference with the law enforcement proceeding, as here. THE COURT: Let me push on. Entry 50 is called "Scan Of Sign." Any idea what that is? MR. KOCHEVAR: So, respectfully, the description of that would, I think, be -- I cannot -- I don't want to provide a further description of that because I believe it would implicate some of the withholding issues here. It is, I believe, a sign that was posted -- my understanding is it was a sign that was posted in the SHU, or in the special housing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105739 36 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 unit, at MCC or thereabouts. THE COURT: Okay. Entry 52 is 969, approximately, pages of emails relating to the July 23rd apparent suicide attempt Epstein's mental health and his presuicide incarceration. Those have been withheld in full. Is it your view -- are any of those being withheld on the basis of Noel? MR. KOCHEVAR: Yes. THE COURT: How much of those 969 are withheld on the basis of Noel? This is July 23rd. MR. KOCHEVAR: All. THE COURT: All? So every document relating to Epstein on July 23rd has been withheld on the basis of Noel? MR. KOCHEVAR: That -- THE COURT: I think you just said -- say again? MR. KOCHEVAR: Yes, that's on this list, yes. THE COURT: Explain to me — again, we're talking about July 23rd, and essentially it's universal Epstein emails, mental health incarceration — what's the justification, under Noel, for withholding all 969 pages of the emails that are synced to July 23rd? MR. KOCHEVAR: So that's given at paragraph 24 of the Capone declaration, and the government anticipates that they will be the subject of witness testimony at the Noel trial such that their disclosure could influence witness testimony, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105740 37 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 including by allowing witnesses to alter their testimony to conform to other evidence or influence potential jurors' perceptions of witness testimony or evidence. Also, there is the concern about poisoning the jury pool -- or, I'm sorry, "poisoning" is too strong a word but, well, affecting, making it more difficult to select and seat jurors in the case. If a bunch of BOP emails -- and I should have added this before, which I believe is noted in the Capone declaration as well: Obviously, the events of Mr. Epstein's incarceration and death have been extremely widely publicized, so there is a concern that disclosure of some of the stuff is going to affect public perceptions and lead to difficulty with seating jurors, including things that relate to the July 23rd -- THE COURT: Sorry, but given the vast disclosures and publicity about Epstein, is it really credible that whatever increment is brought to bear by internal documents dealing with a day two and a half weeks before the actus reus of the Noel offense is really going to influence the jurors in that? At the end, the issue in the Noel case is, did they or didn't they, did they make false statements about their activities and whereabouts and observations on that night? And I would be startled if, you know, this turned into a full renewed autopsy of Jeffrey Epstein. I'm quite sure that, under Rule 404(b), a responsible SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105741 38 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 district judge would have to think about the extent to which, at a false statements case, a full narrative history about the journey of an inmate through the MCC really is going to play much of a role. But I'm having difficulty with the sense of proportion here, as you can tell. MR. KOCHEVAR: Yes. So, a couple points: First is that the standard here is a rational link. And the declaration submitted by the government clearly clears that standard; there are definitely rational links drawn here. And, also, I would reiterate some points that I've made before: That FOR really was not designed to interfere with criminal proceedings like this. And on top of that, there are special concerns here, given the widely publicized nature of this. But a new point beyond that, actually, which I think the Court just sort of brought up on its own there, in terms of exclusion from evidence, as I noted before, I don't think we know what the defense is going to bring in at a trial here; and if some of the stuff is excluded, as you just said, by a district judge who's controlling the proceeding, if it has been widely publicized prior to then, that's going to raise a whole new set of issues at that trial. And the government's position here is that protecting trials like this, FOIA definitely wants courts to do that. The purpose of FOIA is not to create new burdens for the government in criminal -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105742 39 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: But, sorry, the problem, Mr. Kochevar, here is not with any of the broad propositions you're stating — I mean, all of them have their place — it's how much they serve to shelter in the particular case. And the challenge for me is the request to simply trust without verification, because the problem here is that the individual prosecutions here appear, on their own terms, as Epstein is relevant to them, to be islands in a sea, and the disclosure here appears to be more like the sea. All right. Well, let me pause there. We've been at this for about an hour. It's been very helpful, and I think I understand the outlines of what the government is arguing, and I think the heart of the case here is primarily the 7(A). I think I can resolve on the papers the other exemptions, which appear to apply to a much narrower set. Let me ask our court reporter whether you need a comfort break? (Pause) THE COURT: Very good. I'm going to log off for five minutes. I will dial back in five minutes, and at that point I'm going to turn back to counsel for the New York Times. Thank you, Mr. Kochevar. We'll take a short break. MR. KOCHEVAR: Thank you, your Honor. (Recess) THE COURT: All right. This is Judge Engelmayer SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105743 40 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rejoining the call. Let me just confirm that the principals from each side are still on the line. Ms. Settelmayer, are you on the call? MS. SETTELMAYER: Yes, your Honor. THE COURT: And, Mr. Kochevar, are you on the call? MR. KOCHEVAR: Yes, I am, your Honor. Thank you. THE COURT: And, perhaps most important, Mr. Walker, our court reporter, are you on the call? (Pause) THE COURT: I'll hear now from the New York Times. Ms. Settelmayer. MS. SETTELMAYER: Thank you, your Honor. My colleague, David McCraw, is actually going to be addressing the 7(A) issue, so I will leave it to him. THE COURT: That's the heart of the matter here. MR. McCRAW: Thank you, your Honor. This is David McCraw. And I think Ms. Settelmayer would like to speak just briefly after I'm done to 5, if your Honor would entertain that. THE COURT: Of course. MR. McCRAW: Much of what the first hour has covered goes to the heart, so I'm not going to repeat that, that we find a lack of specificity, a lack of detail, necessary in these records to find that nexus that I think we all agree has to be there. But I want to speak about Tartaglione because I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105744 41 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 think the government's own documents from that case belie the theory that the government is using here. THE COURT: Sure. Can I ask you, though, as you turn to Tartaglione: I welcome your characterization, neutrally, of the materials that you have received for each of these cases as you turn to each of them, because one thing that is elusive to me is what the content is of what in fact you have already received via this FOIA request. MR. McCRAW: Yes, we can do that, your Honor, and Ms. Settelmayer probably has a closer look at some of the documents. In the main, the heavily redacted -- so, for instance, the caller lists are 60 pages of green redaction tape, with entries, two or three on a page, which shows that somebody, who knows, came to visit. And we know how much money was transferred into an account for Mr. Epstein, but not from whom. We see some of his medical records, none pertaining to his death. I think that's a fair characterization. But let me speak, if I might, to Tartaglione because I think the thing that the government fails to address is the letter that the criminal AUSAs in that very case wrote in response to the defendants' raising of the issue of what happened on the night of the attempted suicide. As your Honor knows, because you've seen the letter, the defense says, we want to be able to show that our guy did the right thing on the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105745 42 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 night of the attempted suicide, that he should get some credit for that during the penalty phase, and he is upset because the video has gone missing. That's what starts the whole correspondence. The government comes back in a letter, which is number 189 on the docket there, and says, in the first paragraph: The government does not intend to dispute the defense assertion that the defendant called MCC staff to the cell. It then goes on and says on page 2 of that same letter: To the extent the defense chooses to present evidence during a potential penalty phase regarding his conduct in prison, the government may seek to rebut such evidence with instances of the defendant's misconduct while detained pending trial — and here's the important part — but those incidences would not include any of the events of July 22nd and 23rd, 2019, involving Jeffrey Epstein. In effect, they are taking the dates of the attempted suicide off the table. So, I don't understand how these documents then become relevant at all, because there would be no interference if they're not even in play, they've been concealed -- THE COURT: But it's not that they're in play, right? In other words, in fairness to the government, no, at a top line they're not disputing the conclusion that Mr. Tartaglione made a phone call when Epstein was in distress, and they're not otherwise putting stuff at issue there; on the other hand, as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105746 43 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you know, the way one tries a case is not merely trying to get that sterile factoid out but the defense would have significant interest in the look and feel of that event in trying to develop it, right? So, there's obviously an issue as to how far that reaches, but the mere fact that the government doesn't dispute that Tartaglione, in effect, in the moment did the right thing doesn't mean that the defense isn't going to try to milk that one for a whole lot more than that one-sentence sound bite? MR. McCRAW: Correct, I take your Honor's point. However, what becomes crucial with 7(A) is what is the interference, not does the disclosure connect to something that may come up in the trial but what is the interference? And the reason the government has given here seems to be the effect on witnesses. That connection is not made in Mr. Capone's declaration, either of his declarations — what is the interference that would take place if this was released? The other letter which is referenced, and your Honor referred to it, talks not about Epstein — this is the January 21st letter in Tartaglione — it is about the dirty decrepit, vermin-infested, hyperisolating conditions of the MCC. I can't tell from the Vaughn Index, as it is, whether there's anything at all about that, whether there's any document here, and certainly it doesn't go to the Epstein document. Again, I think there has to be -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105747 44 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: So, help me. I take it you acknowledge that there is some category of Tartaglione document that is properly withheld; you're just drawing the concentric circle over the lines of more tightly than the government. What's your line? Help me with how you would formulate what is properly withheld on account of Tartaglione. MR. McCRAW: Your Honor, in the current state of the record, I don't see it. I just don't see where the interference would come. This is not -- THE COURT: Well, suppose there's a document that literally recounts Mr. Tartaglione's outcry on July 23rd, it really is giving the narrative about that event. Granted, the government may not in the Tartaglione penalty phase, if it getting that far, make a big deal about the point, they might even stipulate to it or part of it, but nonetheless, insofar as Tartaglione's defense will be apparently trying to get some mileage out of that, why isn't, at a minimum, a document that actually recounts those events something that the government has the right to maintain public control over so that there isn't a narrative in the newspaper the day before the Tartaglione penalty phase, you know, recounting what the exhibits say happened there, just to be really extreme? There's some irreducible core here that you have to concede is properly withheld. MR. McCRAW: Your Honor, I'm going to come across as a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105748 45 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 newspaper lawyer; and I would think that kind of story doesn't have any impact on the trial, the jury is impaneled, that they have been properly voir dired, that -- THE COURT: Sorry, but if that were the answer, that would be an answer to a whole lot of step two under 7(A), right? In other words, we all hope that juries follow instructions, both at the selection stage and during the trial, and we hope that they follow the limiting instructions during the trial; but, that being said, if that were an ironclad bulwark, 7(A) would be less of an issue and then you'd only be worried about influencing the witnesses. But the case law says that I'm allowed to assume the possibility that something slips through the sieve before jury selection or during the trial. MR. McCRAW: Yes, I couldn't agree with you more, your Honor. I would, of course, point to, in the Southern District, that we have had, over of the course of my career, much higher profile cases than Mr. Tartaglione's and found a jury and had those upheld as fair and impartial juries, whether you're talking about celebrities or terrorists or mob figures. So could there be a document that is such that its public release — that is, its public release now — would so affect some witness about what happened or didn't happen? I suppose I can hypothetically entertain that notion. I just think that the government's going to have a very hard time, after they have lost the videotape and conceded that they're not going to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105749 46 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 contest that he made the call, I am just not quite sure what the facts would be that would get me there, but I will concede the point that it could be. THE COURT: What about the other dimension of Tartaglione? I have to say to you, as I think I indicated to Mr. Kochevar, it's not obvious to me that, as a matter of law, decrepit prison conditions qualify as mitigating. I just have never had occasion to think about that. It's not at the core of what one ordinarily thinks about in the capital phase as mitigating, even if it is very much germane, and certainly has been over the last year, in judicially imposed sentences under Section 3553(a) or compassionate release applications. But what is your view as to that? In other words, assuming that there is some relevance to prison conditions in the jury's determination of the proper sentence — just let's go with the premise that there is a proper place for that — what's the parameter? Is it simply, you know, the government gets to withhold the condition of the joint cell of the two men but as to broader prison conditions at the MCC or Epstein's prison conditions, other than when he's bunking with Tartaglione, those are properly produced? What do you do with that factor? MR. McCRAW: I think it would have to be specific to their particular cell on that particular very short period when they were together. As you know, the defense theory in Tartaglione is that it will prove that he should be eligible SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105750 47 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for life in prison rather than being executed. I don't have -- I don't know enough about criminal law to know whether that's mitigating or not, but that's the theory. It seems highly speculative to me, but I would still want a declarant to say what the interference would be from early release, and it is, as your Honor knows, early release here could be substantial, between COVID and the delays that have already taken place in this prosecution. This is a -- THE COURT: Early release? Just help me with what you're referring to, Mr. McCraw. MR. McCRAW: Oh, I'm sorry. Early release of the documents, early -- disclosure of the document at this point. THE COURT: Because any trial may be apt to be delayed a long time under COVID? MR. McCRAW: Correct, COVID, and the natural -- THE COURT: And capital cases are, by their nature, long-tailed before they hit trial. MR. McCRAW: Right. THE COURT: Let's turn to Noel because I think what Mr. Kochevar has helpfully said is, as a practical matter, even if you, The New York Times, prevail to a large degree with respect to Tartaglione, if you don't prevail on Noel, Noel either literally or comes awfully close to replicating the same universe of withheld documents. So, look, as to Noel, help me with what your line is. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105751 48 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I mean, there is clearly — and I will just say it because it seems obvious to me — there is clearly some category of documents under Noel that is within the ambit of the Noel prosecution; the challenge is, as you can see me struggling with, where do we draw the line, what is too far afield? MR. McCRAW: Right. And, your Honor, I would come back to the point I was making earlier, about what is the nature of the interference. I do not believe that these documents will -- I don't think there's a credible case that this will impair a fair trial in the Southern District of New York. We make that point in our brief. I don't need to dwell on it, so it really becomes about interference with witnesses. I point to three things from the prosecution of that case. One is the representation, again made today, that much of this material has been released. Now, if there is some that falls -- when released to the defendants. Now, if there's some that falls outside of that, we should have heard about that, they should have made a record of it; I don't know whether that's so or not, but -- THE COURT: All right. Let's assume that either most of the material has been produced to the defense, meaning the government is necessarily consistent, or, to the limited degree there's material that's outside, it's because of the technical requirements of Rule 16 of the Federal Rules, which may not be a perfect map for 7(A), but let's assume for argument's sake SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105752 49 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that the government is broadly consistent in its treatment under Rule 16 and its application of 7(A). So take that off the table and give them credit for that, and assume that. Now move on. MR. McCRAW: Right. THE COURT: I think your point is possible, they haven't been, but I'm going to assume for purposes of this discussion that I'll find out. But let's call that one in the government's favor for the purposes of this discussion. MR. McCRAW: Will do, your Honor. So then you move to paragraph 3 of the protective order in the case. What that says, in the protective order in Noel, is that the defense is allowed to show the document to fact witnesses. So, this idea that this will prevent coordination, if that's really a concern — I don't assume that people are going to lie — the defense is now -- already has the right to take these documents and show them to fact witnesses. The third factor I pointed to is the indictment itself. This is not, as your Honor knows, a barebones indictment. This tells a story as to what these two people were shopping for online, which rounds they missed, a supervisor who did nothing when he showed up. If a witness in this case were keen on trying to understand either how to contradict the government's case or get in line with the government's case, that indictment is deeply factual and would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105753 50 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be a playbook, if you want to look at it that way. So, I struggle to see what the interference is, and I think the government should have to speak to that, not just -- THE COURT: Isn't the premise here that although I expect the district judge will impose limits on the evidence that's received, the fact that it was the Epstein suicide that catalyzed the investigation which revealed the malfeasance here, I assume that Epstein is going to be a -- that fact will be, let's assume for argument's sake, before the jury, and then I suppose it becomes the question of does the defense get a fair trial if, for example, facts about the Epstein suicide come to light that would lead somebody to conclude that this was really avoidable, by people who had walked the halls, that had done their sentry duty? Or, in effect, is it possible some of the evidence that could come to light could make the jury, in effect, treat these defendants as if they're accountable for the death of a human life and the manner of discomfort, suffering or whatever else, whereas the absence of reporting on that would make it more of a 1001 false statement case, as charged? There's a little bit of a risk, if you're the judge on that case, that it's going to be mistaken as a case about responsibility for a death as opposed to false statements. MR. McCRAW: Yes, your Honor, I see that point. I'm going to default to what I said earlier, which is that the fact that there could be a jury that disregards its duties, that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105754 51 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there's a judge who doesn't oversee a proper voir dire, that defense counsel or the prosecution misbehaves and talks about murder in a closing argument, all those things are possible, and you can imagine -- I do a lot of FOIA cases, I get charged with speculating a lot, but this strikes me as this is one case where the government is speculating very far out as to the things that could happen. THE COURT: From your perspective, as to Noel, what about the government's thesis that, for example, you've got two individually named defendants here who presumably had done a bunch of rounds on previous days during Epstein's tenure at the MCC, and the government argues, I think, that one of the closer concentric circles is, for example, the prior conduct of those defendants in doing their rounds — in effect, the government may want to say, you know, either they've had a long history of dropping the ball, now that we've gone back and looked, there were many days on which they didn't do their rounds — or their awareness of their responsibilities is reflected on the fact that every day but this one for the three weeks beforehand they dutifully did their rounds? There's an inference, one way or the other, that can be drawn whichever way the facts point, but, either way, it's exactly the sort of raw material that could easily be brought to bear at the criminal trial of these defendants, right? So, to the extent we're talking about the prior SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105755 52 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 history of check-ins about these defendants, of the monitoring, sentry procedures by these defendants, isn't that something that is at the core of what ought to be protected here, stuff that deals with the work activities by these two criminal defendants? MR. McCRAW: Let me approach that a couple ways because I'm going to concede something here. One is, I think, as to them, if in fact Rule 16 has been complied with, they already know that. THE COURT: They already know that. But the fact the defendants know that makes it more clearly Rule 16 -- it's Rule 16 material, and I'm assuming that evidence like that would have been produced in the case, their prior records for the weeks and days leading up to August 9th and 10th. That enhances the argument for its exemption, no? MR. McCRAW: I may be missing the point, but its public release, hypothetical public release, doesn't change anything about the defendants because the defendants already know. When we look at other witnesses -- THE COURT: No, no, no, but it changes, it enhances, the risk of a jury hearing about it, it enhances potentially the risk of a witness, who wasn't supposed to hear about it, hearing about it. In other words, if, for example, the narrative of all the days -- what did the defendants do SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105756 53 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 vis-a-vis their BOP responsibilities in the days, weeks and months leading up to August 9th and 10th? If that's a chapter at the trial, which it may well be, the government is on very strong footing, are they not, saying that's exactly the sort of thing that we have a right to keep out of the public domain under Exemption 7(A) prior to the trial, maybe the analysis changes after trial? MR. McCRAW: I would push back a bit on that, your Honor, and I would go back to that whole line of cases that grow out of the prior restraint cases from the Supreme Court starting with the Nebraska Press Association. They talk very clearly — and, again, different context, I understand — about why prior restraints aren't needed to preserve fairness in a criminal trial, it talks about all the things that I've raised earlier about the success in voir dire, gag orders on the participants as opposed to on the press, and so forth. THE COURT: Right, but you're arguing against the second element of Section 7(A). I mean, there's an interference -- the case law on that acknowledges the prospect of witnesses or jurors being affected. I can't read that out of the case law even though I appreciate that, from your point of view, these other protections in the system ought to minimize the reach of 7(A), but the case law goes the other way. MR. McCRAW: I would make that point, about prior SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105757 54 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 restraints too and gag orders, that there are, as your Honor knows, times when even though what I just said about the Supreme Court's view of gag orders and prior restraints and so forth, that in the Don King case, in the Second Circuit, the circuit upheld restrictions there on who could speak, the trial participants. And, again, I would say it's not so much a categorical either/or, it's is this the kind of extreme case where this is something to be concerned about? I think this prosecution, the Noel prosecution, the Noel/Thomas prosecution, is not the kind of thing where you're going to find that those kind of extraordinary steps are needed. I am much more sympathetic to the idea of, would disclosure, at this point in time, affect witnesses? What I haven't seen — and, again, I've characterized this as a failure of proof — what I haven't seen from the government is making this link. What is it that witnesses who are not Thomas and not Noel — they might not be witnesses, but that aren't the defendants — may gather from these and they would affect their testimony? I'm open to the possibility that something could be changed by that; I just don't see it in Mr. Capone's declarations. THE COURT: All right. Let me ask you a final question on 7(A), which is: Assuming that the Court were inclined to get my hands dirty reviewing these materials, to make my own judgment, obviously SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105758 55 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that's not a process in which the New York Times gets to participate, but are there questions you would think would be fruitful for the Court to put to the government, in connection with its provision of those materials to the Court, to guide my review? MR. McCRAW: I think it would go back to some of the points that were raised earlier, your Honor, which is, many of the things that deal with Jeffrey Epstein's psychological state, medical records, and so forth, seem to be far removed from a false reports case. I think, second, documents that appear to be assignment rosters and so forth, which you see on the first page of the Vaughn Index, again, it's not clear how those connect. Maybe they can — I think we've heard a couple of theories of possibly getting there — but we'd like to know that. The last point I would make, again, on 7(A), is they have in 52 and 53, they have taken 2000 emails off the table. I do not have any idea of -- THE COURT: Have you received any of those? In other words, I couldn't tell whether that meant literally all emails were off the table or only all of the withheld emails equal that amount, the number there in those categories. MR. McCRAW: I'm going to have to ask my colleague. I've seen emails from third parties — that is, good citizens — SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105759 56 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 talking about what they thought that BOP should do. But, Ali, are there emails in the production that you've seen? THE COURT: Just to be very clear, because I want to make sure that our court reporter -- if you're done with your presentation, I'll turn to Ms. Settelmayer, and I'm happy to start off, but it's a little hard on these phone calls to have counsel toggling to one another. MR. McCRAW: Fair enough. THE COURT: Is there anything further you want to say, Mr. McCraw, as to 7(A), including, if I were to undertake a review of my own, whether there are questions that you would think that I ought to be putting to the government in connection with what it produces to me that would be particularly fruitful? One natural one is: What's been produced in Rule 16? MR. McCRAW: Correct, I was going to go there, that today counsel has raised the idea that the compiled-for standard applies. And I've seen that before — it comes out of John Doe v. John Doe Corporation of the Supreme Court — I get that, that compiled-for is measured for at the time of the request. I just don't know whether in fact these documents were all swept up and turned over to the investigators and prosecutors. THE COURT: Okay, very helpful. Thank you very much. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105760 57 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. McCRAW: Thank you. THE COURT: Ms. Settelmayer, let me start with you with just the item or two that Mr. McCraw, I think, tried to lateral to you. It sounds like you may be closer to the produced documents, and I welcome getting your take on that. What do the produced documents look like, including the emails? MS. SETTELMAYER: Yes, your Honor. So, we do have a number of documents that are internal to BOP that have been produced to us, as well as some external documents related to press reports related to Jeffrey Epstein. We have documents related to Jeffrey Epstein's records as far as the money he was wired regarding -- to be used in commissary, as well as records such as the final press release that the Department of Justice issued. So we do see emails in the productions that -- long story short, we have received emails from the government in this matter. THE COURT: And are those in the categories you just described, or other ones? MS. SETTELMAYER: Those are in the categories that I described. THE COURT: Okay. But not others? MS. SETTELMAYER: No. THE COURT: All right. I understand your argument is not the 7(A) argument, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105761 58 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you're arguing under exemption 5? MS. SETTELMAYER: Yes, your Honor, and I will keep my remarks fairly brief. At the outset, I just want to point out, The Times agrees with your Honor's description of the government's submissions as having a "trust us" quality, and that quality directly bears on the government's failure to satisfy the foreseeable harm requirement of the 2016 FOIA amendment. As your Honor -- THE COURT: I'm sorry, let me just cut you off right on that. I noted in your brief that you are relying on the 2016 amendments. Why is it that that argument is made in connection with Exemption 5 but not others? That seems to be consistent with the limited case law on that exemption, but does that amendment limit itself to that exemption? MS. SETTELMAYER: No, your Honor, it's not limited to that exemption. And you're quite right, that obviously the case law directly speaks to Exemption 5. We raised it because it's something that the government has put at issue by virtue of its affidavits. So, the 2016 amendment requires at that boilerplate and generalized claims of disclosure that would impair or chill deliberations simply don't suffice. Here, the government really offers rote and generalized speculation as to what harm might come of releasing these documents. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105762 59 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I'd like to respectfully direct this Court to the Christenson declaration submitted by the government, and that's Document No. 24, specifically, paragraphs 49(a) through 49(s). In these paragraphs, the government offers essentially the same formulaic explanation — release of X records would hamper frank and open discussions on Y topics. And now we believe that the government has had ample opportunity to supplement its declaration and has failed to do so. And having failed to meet its burden under the foreseeable harm standards, we believe the records must be released. That's really all I wanted to take a moment to address, your Honor. THE COURT: But may I ask you this: If the 2016 amendment requires, in the context of Exemption 5, some more specificity, some greater rigor as to why the FOIA concern, in this case about chilling deliberations, applies, does it have any comparable reach as to the second step of Section 7(A)? In other words, Section 7(A) also has the step two, not law enforcement purpose but the interference one. That's largely where the whole discussion I had with government counsel zeroed in. Is there a case law that says that the government has to with comparable rigor make a representation to satisfy step two of 7(A) with what it needs to do now after the 2016 amendments under Exemption 5? MS. SETTELMAYER: Your Honor, I would imagine that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105763 60 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 baked into Exemption 7(A), because we are talking about a circumvention of law enforcement activity -- there's not as much of a need to really spell out that foreseeable harm. I mean, that foreseeable harm is pretty much implicit in the sort of law-breaking that would happen as a consequence of release of those records. THE COURT: No, no, but, in other words -- and this gets to sort of the issue of how categorical the government can be or how broad the government can be in defining the category, even if categorical approaches are warranted, which appear to be the case, then the question is sort of do we draw the category at 30,000 feet, 15,000, 5,000, that sort of thing? I guess the question is, you know, to what degree the 2016 amendments bear on the rigor of the showing that the government has to make about interference? I don't know if you've seen anything like that. MS. SETTELMAYER: Your Honor, I'm not aware of any -- of the case off the top of my head, although I have not steeped myself in it, so, to be fair, I might be -- it's quite possible that I am missing something. THE COURT: Let me ask you, while I have you, then: Understandably, The New York Times made a broad-ranging request for a host of categories that look like all things Epstein. May I ask you, without abandoning your interests in anything here, what is the heart of the request? What do you most care SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105764 61 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about in this request? What types of records are really at the heart of The Times' interest? MS. SETTELMAYER: Well, your Honor, a suicide when a government is a custodian of an individual necessarily implicates a government failure, and I think that we are deeply committed to providing the public with the sort of oversight over its institutions as a result of -- that would emanate from these records. We would like to provide the public with a clear picture of what happened and how Mr. Epstein's suicide occurred, and what -- THE COURT: Okay, that's extremely helpful. Am I right to understand, as I look at the requests here, that — although there might be interest in the human saga that was Jeffrey Epstein and who his friends and family and financial backers were and whatnot, visitors — at the heart of the issue here is the failure of a public institution, and your autopsy into how it happened, and that's essentially the topic sentence of the news story? MS. SETTELMAYER: Yes, your Honor. THE COURT: Okay. I guess the issue is, in effect, to boil it down, to what degree FOIA can help you tell that story without getting in the way of two prosecutions that in some way bump into Jeffrey Epstein? Because there are fine points about other details, other exemptions, but the heart of this is 7(A), and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105765 62 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the question is, in effect, how much is the fact that these other two prosecutions overlap here properly hold you back from that story. To what degree do the materials that you've received help The Times gain insight into that issue? MS. SETTELMAYER: Your Honor, I would say that the materials that we've received have provided us with a very limited scope of information as far as what -- the autopsy of what happened here and what government failings necessitated this situation. To be frank, there have been productions that are almost entirely redacted, that don't provide a whole sense of what happened here. So, we are still -- while we recognize and appreciate the Court's assistance in receiving the documents, because, no doubt, without this action we would not have received these documents, we still have quite an incomplete picture. THE COURT: No, look, I, too, am struck by the audacity of the initial denial by the Bureau of Prisons to have anything that was producible. That was attention-getting, and it certainly does raise a concern from a court that there is an attempt, where there's a high-profile epic failure like this, that the wagons are being circled, that's obviously the concern. In the end, the issue is how the exemptions apply to the particular documents, but it certainly inspires a desire to be more rigorous and hands-on as a court, given the initial SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105766 63 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 denial there was anything responsive; get it. May I ask you if there are criminal cases that The Times is familiar with that look at all like this, where, in effect, you have -- or, I should say, FOIA cases that are brought in the context of a pending criminal matter where the FOIA requester is trying to gauge an institution's response and a court is, in effect, trying to figure out which documents that bear on the institutional responses can and can't be produced consistent with the FOIA exemptions that are designed to protect the integrity of the criminal process? Are there cases that really get at that tension? Because that's the heart of the issue here. MS. SETTELMAYER: Yes, your Honor. While not to this scale, I think one of the things that's absolutely striking with this particular proceeding is obviously the scope of documents, but kind of the lack of granularity and how the government has broken down these categories of documents. And I don't think that there is quite an analogous case where we are dealing with these broad tranches of documents and the government is reticent to provide those documents. THE COURT: All right, okay. Thank you. Thank you very much, very helpful. Anything further from you, Ms. Settelmayer? MS. SETTELMAYER: No, your Honor. Thank you. We'd like to stand on our briefs unless your Honor has any further SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105767 64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L49KNEWM questions. THE COURT: I don't have further questions for you, but thank you very much. MS. SETTELMAYER: Yes. THE COURT: Mr. Kochevar, let me ask you just a question or two, and then I'll close. Are you there, Mr. Kochevar? MR. KOCHEVAR: I am, your Honor. THE COURT: How did it come to pass that the BOP originally took the position that there was literally nothing responsive here? What was the level of involvement of the U.S. Attorney's Office at that stage? MR. KOCHEVAR: Just to be clear, I believe the response was not that there was nothing that was responsive, it was that it could be categorically withheld in full. THE COURT: Fair enough. But, in other words -- and I've seen this drama play out before, that when a court gets involved, suddenly there's a more rigorous attention to the application of FOIA to the project at hand, and the initial response is a more stout categorical denial, I've seen that before and this fits that pattern. And, if you can say, I'm eager to understand: What led the government to take the position it did originally, and how come it changed? MR. KOCHEVAR: So, I'm not sure that I am privy to a certain -- at some point, I was not involved, at the start, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105768 65 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 very start, of when the FOIA request came in, but to some extent, to answer the Court's question, I think there is a view that Exemption 7(A) is one of the broader -- well, the rational link standard is one that can be met here. And there is, I think, a position that the government could take, that more things were covered here by 7(A) and that, in fact, some of the things that were released that relate to Mr. Epstein's incarceration, they are connected to live criminal proceedings and investigations. I don't think it was -- so, I believe that was the thinking, basically, that given the various investigatory processes involved in connection with his incarceration and death, that, as phrased, some of the Times' requests could just be categorically denied. I believe that was the thinking. I think that changed -- in part, the agency and the government reassessed and made things more specific, in response, and is now taking the position that it's taking. I don't think it's completely out of left field, though, that when there are numerous investigative processes in play, that Exemption 7(A) can be invoked broadly. THE COURT: Okay. In the spirit of reconsideration, let me ask you: The government's submissions in this case were last made on January 15th, 2021, albeit in the context of other matters. I am mindful, in cases on my docket and those of colleagues, of the government's taking a fresh look at some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105769 66 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issues of public importance before it upon the change of administration. May I ask you whether this question, the nature of and extent of the government's FOIA response in this case, has been reassessed north of the U.S. Attorney's Office since January 20th? MR. KOCHEVAR: Not that I am aware of, your Honor. Yes, not that I'm aware of. THE COURT: All right. Look, very helpful. Mr. Kochevar, I am all but certain that the next step in this case, in order to enable me to get my hands dirty on this, is going to be to direct the government to produce for the Court's review the withheld and produced material here, and in a way that enables me to see not only what's been produced and what's been withheld but as to what's been withheld in a way that associates the exemption or exemptions of withholding with the particular document. I am sufficiently concerned — not that there isn't a basis for withholding of some here, but that too much has been withheld — that I think it is likely necessary for me to get my hands dirty doing that. How quickly would the government be able to produce to my chambers, for my in camera review, binders that contain the documents here, with the necessary flagging as to which exemption? Given it doesn't look like, as FOlAs go, this is that voluminous — I think we're talking 3500 pages or something like that, which is child's play compared to many other cases — SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105770 67 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 how quickly do you think you'd be able to get that to me, with the necessary association of exemptions to particularly either documents or portions? MR. KOCHEVAR: So, I think I would ask, at the outset, for one month, with the understanding -- it's hard for me, given the current situation in the broader world of COVID and everything else. I think that it may take some time just because of the various entities that are involved here -- THE COURT: Wait, sorry. At this point, the entities involved, I'm not asking -- I'm not asking for the Bureau of Prisons to do anything here. This is a U.S. Attorney function at this point; it's a legal assistant and an AUSA, right? That's all we're talking about. I'm not inviting the Bureau of Prisons to mettle with this. The decisions have already been made. If they haven't been made, then you've got a bigger problem on your hands because I'm asking to you show me what you've already concluded. And I'm assuming that there is a way in which, if you take any document, it's simply a matter of blocking and tackling to take your notes as to the document and show which is 7(A) Noel, which is Section 7(A) Tartaglione, which is 5, that sort of thing, but I'm not inviting a fresh look here. I just want you to show me your work. MR. KOCHEVAR: Maybe I didn't fully understand, then. So, yes, I think there is an issue of the things that have been withheld under 7(A) in full. If there are -- some of the other SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105771 68 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 exemptions that are noted for them, they are not on like a line-by-line basis within the document. So, for instance, if there's a document withheld in full under 7(A), well, we can identify, this document also has, say, Exemption 5 exemptions, I'm not sure -- it's not like they would be ready for production tomorrow with redactions specifically for the exemptions. So we -- THE COURT: No, right, but if the document was withheld in whole on 7(A) but the log at Docket 39-1 lists a different exemption -- so, for example, I'll look at entry number 2 is a good example, it says withheld in full under 7(A) and then it says Exemptions 5, 6, 7(C), 7(E) and 7(F) applicable in part. I would like to think that the "part' is a known thing, meaning that somebody actually critically analyzed the underlying material and figured out what part those exemptions applied to. MR. KOCHEVAR: Sure. THE COURT: Is that an accurate premise, I guess is the question? MR. KOCHEVAR: Yes, so to make this more concrete -- THE COURT: Yes. MR. KOCHEVAR: -- some of the Exemption 7(C) exemptions in part, which I don't think are even disputed anymore, are like names of BOP employees, I think. I can't give the Court tomorrow a document that has like a box on it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105772 69 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that is like, "This is a BOP name," right? Certainly, the documents here could just be produced, but what the Court would get would be essentially what it says here — this page was withheld under 7(A) and also, Exemption 6 and 7(C) are applicable, under the theories that are laid out in the government's brief — but there wouldn't be a specific marking on it — does that make sense — for those other -- THE COURT: It makes sense that right now you don't have that, but it would not make sense in terms of what I'm looking for, because I would like to do a one-stop shop, where when I look at the document, I'm making a judgment both about any categorically expressed basis for withholding as well as any subset basis. So I think I would need, if your current notes don't permit a clear reconstruction of what the reviewer had in mind, I think I would need that done. MR. KOCHEVAR: And so that is the timing that -- we would need to time to put that together for the Court, because, again, the things that were withheld in full under 7(A), those particular other exemptions are not mapped out in part, and I think that will take some period of time. THE COURT: Let me ask you: There's a rolling way of doing this, right? In other words — I'm looking at the log here — you've got 60 entries. I am eager, given the importance of FOIA and the journalistic mission of the requester here, to move this sooner rather than later. One way to do it would be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105773 70 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to say, let's be done in a month but let's do it on a rolling basis so that beginning in two weeks I get a binder that answers the question for some of the items, some of the withheld categories on the list. Is there a reason to wait for a month to get everything as opposed to getting it on a rolling basis? MR. KOCHEVAR: No, I think a rolling basis would probably work, yes. I mean, I think -- honestly, I would think that the main issue here, probably the longest thing, which may take more than a month, honestly, is the email documents. And, respectfully, based off of some of the responses The Times just gave, I'm not sure — maybe this is something to discuss with The Times separately — I think many of those emails, while they may technically fall within the Times' request, I'm not sure that they're core -- anyway, we may -- yes, I think the emails are going to be the time-consuming piece here. THE COURT: All right. Then let me suggest this, because I'm eager to structure this in a rational, productive way, and I regret that the nature of what I'm going to be asking you to do is going to create a fair amount of work, but I think, given the importance of the request and the controversy and the concern I do have about not invoking FOIA but the extent to which it's invoked on the basis of those two prosecutions, I do think my own independent review is going to be needed, and I would value front-loading the categories that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105774 71 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can be more easily presented to the Court and that are most likely central here. So, may I suggest that I will issue an order, in all likelihood, on Monday that confirms my current inclination to direct this sort of production, and probably very much along the lines of what I've imagined for you in the last few minutes, but I would welcome your beginning to give focused thought to what a sequencing might look like. And please speak to your colleagues at the Times because, again, I would rather focus my initial review on both what you can accomplish readily but also what is, frankly, more centrally of interest to them. There's no reason why that aspect of collaboration can't occur. I would ask you, as well, pursuant to what I said a few moments ago, may I ask you, just within the U.S. Attorney's Office, while I can't direct you to do this, I would happy to know that the question of how to address the FOIA request here and the scope of the objections claimed, I would be happy to know that at least there was consideration given at the top of the U.S. Attorney's Office whether to raise this more centrally within Main Justice. There may or may not be an interest in taking a fresh look — I don't know, and I don't presume to know the politics at all — but mindful that there has been that fresh look on other things, it's not inconceivable to me that a different set of eyes might take a more receptive view of the FOIA request here. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105775 72 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. KOCHEVAR: Understood, your Honor. I will certainly carry this back. THE COURT: Very good. Look, all I need to know is that you are committing to me that you will do that with some dispatch. I don't need to nose around more into the answer. I just want your commitment that you will raise it so that I know now that the U.S. Attorney's Office at the top level will consider the question of whether to elevate this within DOJ, but it's not my business who felt what or whether it was elevated; I just want to make sure that the U.S. Attorney is taking a close look and asking that question. MR. KOCHEVAR: And so, just because I know the Court is interested, I want to be careful about what precisely the Court is asking, just so I can make sure -- THE COURT: Look, I'm asking that the U.S. Attorney, Audrey Strauss, take a close look at the case and ask the question: Is this the sort of problem, the sort of controversy, that ought to be elevated north of the U.S. Attorney's Office now that there is a different group in charge? I have no idea how much, or little, different sensibilities within the current Justice Department might affect how the government views FOIA requests these days, how they view FOIA requests that are aimed at examining significant institutional failures, how broadly or narrowly they may be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105776 73 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 viewing some of the questions about the intersection between criminal prosecutions and a more systems-oriented FOIA request, but it is endowed of the question that that there's a different philosophy about this. And it may also be that people who don't have the same sense of responsibility — it's a different crew overseeing the Bureau of Prisons — people may take a fresh look at this and not feel perhaps as defensive as people on whose watch a very highly publicized suicide was allowed to happen, would take it. It stands to reason that fresh eyes may look at it differently, and I will be satisfied to get your representation that Audrey Strauss, for whom I have great esteem, is taking a close, independent look at whether to elevate this within DOJ. That's all. MR. KOCHEVAR: Understood. THE COURT: Very good. So, I'll have an order out, in all likelihood, Monday as to next steps, but you can pretty safely assume that it will entail a review by me broadly along the lines of what I've envisioned. Start giving thought, and start discussing amongst yourselves, the rational sequencing. With that, look, I want to thank you all. And, Mr. Kochevar, I ought to specifically say, you were under considerable fire during much of the argument, and I very much appreciated the caliber of your answers and the grace of your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105777 74 L49KNEWM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 answers. These are hard problems, and I appreciated the high-level briefing and high-level presentation from both sides. Thank you. MR. KOCHEVAR: Thank you, your Honor. THE COURT: All right. With that, we stand adjourned. MR. McCRAW: Thank you, your Honor. MS. SETTELMAYER: Thank you, your Honor. * * * SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00105778