Instant Alert: Expert explains why a federal judge wasn't sympathetic to Michael Cohen's argument on the biggest item in his case

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Expert explains why a federal judge wasn't sympathetic to Michael Cohen's argument on the biggest item in his case

by Allan Smith on May 31, 2018, 5:56 PM

US District Judge Kimba Wood set a mid-June deadline for Michael Cohen's lawyers to finish reviewing more than 2 million documents.
Cohen's team wanted that deadline to be in mid-July.
One expert explained why Wood wasn't sympathetic to Cohen's argument.

As US District Judge Kimba Wood was deciding Wednesday on a deadline for Michael Cohen's lawyers to finish their review of documents seized by the FBI during raids on Cohen's home, office, and hotel room, Cohen's attorneys made a pitch.

Todd Harrison, one of the attorneys for President Donald Trump's longtime lawyer Cohen, said in pushing for a mid-July completion date that their team was "working around the clock" and "as fast as we can" to finish the review. Harrison said one member of his team had a "tremor in his hand from lack of sleep."

Harrison said Cohen's team of attorneys was utilizing 15 lawyers and two data specialists to review the documents and determine what constitutes as privileged communications. Over the past month, Cohen's team has reviewed, along with lawyers for Trump and the Trump Organization, more than 1.3 million documents, designating slightly more than 250 as protected by attorney-client privilege and unable to be used in a potential prosecution of Cohen.

Still, the team has nearly 2.5 million documents left to examine.

But Wood wasn't sympathetic to their time span, instead setting a June 15 deadline. If Cohen's team isn't done by then, the remaining documents would be turned over to a separate group government lawyers — known as a "taint team."

Kimba Wood That's exactly the option Cohen and Trump didn't want to have happen amid Cohen's status as the focus of a criminal investigation in the Southern District of New York into whether he violated campaign-finance laws or committed bank fraud.

Cohen's team successfully argued in April to have a special master appointed to oversee the document review. Wood agreed to do so on one condition — that the review process wouldn't take any longer than it would if it was being handled by the "taint team."

Why Cohen lost

There's a simple reason why Wood was unimpressed with team Cohen's pitch, one expert told Business Insider: 15 lawyers and two data specialists is nowhere near the level of personnel you'd utilize for such a review.

Mitchell Epner, an attorney at Rottenberg Lipman Rich and former assistant US attorney, told Business Insider that he was confident the size of that team would at least triple. Under orders to meet a deadline, he said he's seen review teams as large as 60 attorneys.

"The statement by Michael Cohen’s attorneys that they have a team of 15 attorneys and two data specialists working around the clock on this is not likely to have impressed Judge Wood as a big effort," he said.

He added: "It is not unusual for large law firms like McDermott Will and Emery (which has about 1,000 attorneys) to create teams of more than 50 attorneys to meet tight discovery deadlines. A team of 15 attorneys to review over 3 million documents would likely strike Judge Wood as designed to guarantee that the process would stretch on for months."

Earlier this week, the special master, Barbara Jones, released her most in-depth report yet on the review process. After the report was published, experts zeroed in on the surprisingly low number of documents that Cohen, Trump, and the Trump Organization had designated as privileged.

"For a person who claims to be a lawyer, the minuscule amount of allegedly privileged matter is surprising, and what it tells us is that Cohen wasn't acting as a lawyer very often," Roland Riopelle, a partner at Sercarz & Riopelle who was formerly a federal prosecutor with the US Attorney's Office for the Southern District of New York, told Business Insider.

"He was doing something else," Riopelle said.

During an interview on "Fox & Friends" late last month, Trump seemed to suggest that the investigation into Cohen appeared to focus more on Cohen's business dealings than on his work as an attorney. But on April 10, the day after the raids, Trump tweeted: "Attorney-client privilege is dead!"

Meanwhile, in a Thursday court filing, Wood announced that Jones will issue a report next week detailing which of the roughly 250 items Cohen, Trump, and the Trump Organization designated as privileged that she believes should actually fall under that designation. Any objections to her recommendations would then need to be filed by Cohen, Trump, and the Trump Organization within a week.