In re: 650 Fifth Avenue and Related Properties

SRESOR NN EEE ES United States Attorney Southern District of New York The Silvio J. Mollo Building One Saint Andrew’s Plaza New York, New York 10007 December 2, 2021 BY ECF Claimaints shall file their response, if any, no later thé The Honorable Loretta A. Preska December 14, 2021.

United States District Judge Southern District of New York SO ORDERED.

Daniel Patrick Moynihan U.S. Courthouse oe fi Pearl Street weettta CF KHwleg 20 New York, New York 10007 , Re: In Re 650 Fifth Avenue and Related Properties, Civ. 10934 (LAP) Dear Judge Preska: The Government respectfully writes to request the Court reconsider one portion of its November 18, 2021 Order, Dkt. No. 2389. In the Court’s Order, the Court ordered that “a privilege log shall be prepared containing information sufficient to demonstrate privilege as to documents withheld on the basis of privilege.” The Honorable Katherine B. Forrest previously ordered that the Government was not required to produce a privilege log. As described below, that order was based on the nature of the production of documents in this matter, the nature of the privileges asserted, and the manner in which those privileges—in particular, the law enforcement privilege— are addressed by the Court. Because Claimants’ motion was expressly limited in scope and did not ask the Court to decide issues related to privilege, the parties did not bring this law of the case to the Court’s attention and, accordingly, the Government respectfully submits that the portion of the Court’s order directing the production of a privilege log for documents or information withheld on the basis of privilege in response to Claimants’ supplemental statute-of-limitations requests should be reconsidered. See, e.g., Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (motion for reconsideration “will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.”).

I. Prior Litigation Regarding Privilege Log In this matter, discovery has included, among other things, the production of Federal Bureau of Investigation (“FBI”) investigative casefile records from the underlying investigation that led to the filing of the Amended Complaint, as well as electronically stored information (“EST”) related to the underlying investigation maintained by predefined FBI personnel. Prior to production, those records were reviewed by personnel with the FBI’s Civil Litigation Unit as well as its Classification Unit to identify classified and privileged materials, which were redacted from